Symposium: The New Old World—3

jan-werner müller

B EY O ND MIL ITAN T DEM OC RACY ?

P
erry anderson’s New Old World combines an original set
of arguments about the evolution of the European Union with
deeply informed analyses of the political cultures of some of
its major states and its aspirant entrant, Turkey. As Anderson
himself remarks, one could be forgiven for thinking that European
high-cultural life was actually more integrated decades before the Rome
Treaty; paradoxically, the more the continent unites politically, the more
provincial individual European countries seem to become. Anderson
has set an example of how to de-provincialize ourselves and, in partic-
ular, how to show sensitivity to national cultures while being sharply
critical of political forces within nation-states—particularly the Centre-
Left. Empathy and polemics can work together.

In this brief comment I want to take issue with one of the major argu-
ments that Anderson advances in his chapters on eu ‘Theories’ and
‘Outcomes’. He is undoubtedly right to stay away from much that passes
as a justification for the Union, which is often nothing short of obfusca-
tion: the postmodern pieties that the eu somehow exists to promote,
or at least preserve, ‘diversity’, for example; or that the Union, just on
account of its novel institutional architecture, is entirely sui generis and
therefore not subject to issues of power and domination. Anderson
makes short shrift of the claim—advanced by scholars such as Andrew
Moravcsik, Giandomenico Majone and, more recently, Peter Lindseth—
that the fathers of the Union consciously delegated power to unelected
bodies for plausible normative reasons. He also questions the standard
rationale for delegation, namely that only efficiency or, more broadly

new left review 73 jan feb 2012 39

 40 nlr 73

speaking, optimal regulation is at stake, and not conflicts over resources

or, put differently, redistribution.

I have no wish to vindicate this type of justification, let alone to claim

that the eu is indeed the best of all possible Europes. Rather, I want
to advance the historical argument that insulation from popular pres-
sures and, more broadly, a deep distrust of popular sovereignty, underlay
not just the beginnings of European integration, but the political recon-
struction of Western Europe after 1945 in general.1 What Lindseth has
called the ‘post-war constitutional settlement’ was all about distancing
European polities from ideals of parliamentary sovereignty and delegat-
ing power to unelected bodies, such as constitutional courts, or to the
administrative state as such.2 The trente glorieuses were not the golden
age of Social Democracy, nor of popular democracy tout court; nor were
they a time when a supranational democracy à la Monnet was ever a
realistic proposition. Rather than contrasting those glory days with our
(supposed) sordid post-democratic condition, we ought to understand
that European elites in the late 1940s and 1950s consciously opted for
a highly restrictive understanding of democracy—and that the eu, from
the start, operated on this basis.

What explained this choice? There were many factors: the Cold War, the
experience of Nazism, the influence of theories about totalitarianism
(not just the classic academic ones), and, not least, the domination of
Christian Democracy in Western Europe at the time, making the late
1940s and 1950s the ‘Christian Democratic moment’. Needless to say,
Christian Democrats were also, by and large, the initial architects of
European integration, and none of them were particularly enamoured
with the notion of a national collective directly expressing a general will.
Of course, such a historical argument does not prove that normative
worries about today’s eu are unfounded; my aim is rather to put these
worries in perspective. My further point, in the last section of this essay,
is that the dilemmas the eu faces today are not so much a result of the
shortcomings of the post-war European model of democracy itself, as of
its at least partial extension to the supranational level.

1
This argument is advanced in my Contesting Democracy: Political Ideas in Twentieth-
Century Europe, New Haven, ct 2011.
2
Peter Lindseth, ‘The Paradox of Parliamentary Supremacy: Delegation, Democracy
and Dictatorship in Germany and France, 1920s–1950s’, Yale Law Journal, vol. 113,
no. 7, May 2004.
 müller: Europe 41

Constrained democracies

The emergence after 1945 of what is often described as a thoroughly

pragmatic—‘consensus’—form of politics was not just a matter of
subjective de-radicalization in a supposedly post-ideological age. It also
rested on a number of institutional innovations and attendant norma-
tive justifications of what politics should or should not be about. In
particular, Western European political elites fashioned a new and highly
constrained form of democracy, imprinted with a deep distrust of pop-
ular sovereignty—in fact, distrust even of traditional parliamentary
sovereignty. Its novelty, however, was often obscured by the fact that the
innovative institutions were publicly justified in highly traditional moral
and political language. Conventional cultural pessimism about ‘the
masses’ remained a basso continuo of post-war political thinking, while
religiously inspired natural-law traditions underwent a major renaissance
after the War, as did Christianity more broadly. It proved highly seduc-
tive, then, to present the post-war era not as the beginning of something
new, but as a moral and intellectual return to something safely known.
Yet in fact no democracy, as a known set of institutions, ‘returned’; nor
was ‘liberalism’ in a nineteenth-century sense—as a matter of ideas, or
in terms of any recognizable class base—revived after 1945.

What emerged instead might best be described as a new balance of,

broadly speaking, democratic and liberal principles, and constitution-
alism in particular; although such a formulation—alluding as it does
to the notion of a ‘mixed regime’—still underestimates the novelty of
the post-war order, as both liberalism and democracy were redefined in
the light of the totalitarian experience of mid-twentieth-century Europe.3
The thinkers and institutional innovators engaged in this project were
well aware that a ‘simple reassertion of liberal modernism had become
radically insufficient’;4 and while de facto they fashioned institutions
and advanced values that could be seen as functional equivalents of lib-
eral ideas, the inherited political languages of liberalism were for the
most part rejected—often explicitly so. Thus, where totalitarian theo-
rists had sought mastery over history through new collective agents and

3
My interpretation here overlaps with that of Marcel Gauchet in L’avènement de la
démocratie, Paris 2007; he is rather too breezily dismissed by Anderson as a mere
apologist for liberalism.
4
Ira Katznelson, Desolation and Enlightenment: Political Knowledge after Total War,
Totalitarianism and the Holocaust, New York 2003, p. 1.
 42 nlr 73

unconstrained modes of political action, the post-war anti-totalitarians

attempted to stabilize the political world by finding new institutional
expressions of inherited liberal principles, such as checks and balances,
or reviving older moral and religious precepts, without re-deploying
actual liberal languages.5 This constellation of values and institutions—
essentially a new intellectual synthesis—cannot be summed up as any
kind of established ‘ism’. It was never formulated by a single thinker,
though it had a fair number of theorists, some of whom are hardly
remembered today.

Possibly one of the most important institutional innovations in twentieth-

century Europe as a whole was the creation of constitutional courts. These
were not simply a copy of the American Supreme Court. Rather, this par-
ticular conception of centralized judicial review dated from thirty years
earlier: Hans Kelsen had included it in the Austrian constitution that
he crafted following the First World War. After 1945, even in countries
which had traditionally been highly suspicious of judicial review—above
all France, with its aversion to gouvernement des juges—the idea of testing
for constitutionality was eventually accepted. Constitutional courts were
also instrumental in the rise of so-called militant democracy—a concept
that had first been defined by the German-exile political scientist Karl
Loewenstein in 1937, at a time when one European country after another
had been taken over by authoritarian movements using democratic
means to disable democracy. Loewenstein had argued that democracies
were incapable of defending themselves against fascist movements if
they continued to subscribe to ‘democratic fundamentalism’ and an ‘exag-
gerated formalism of the rule of law’. Democracies had to find political
and legislative answers to anti-democratic forces, such as banning parties
and militias, and restricting the rights to assembly and free speech. As
Loewenstein put it, ‘fire should be fought with fire’; and that fire, in his
view, could only be lit by a new, ‘disciplined’ democracy.

The idea of militant democracy subsequently became highly influential

in the Federal Republic of Germany. It was used to justify the ban-
ning of the neo-Nazi Socialist Reich Party and the Communist Party
by the Constitutional Court in the 1950s, and the draconian measures
against those suspected of association with terrorists in the 1970s.
‘Militant democracy’ may seem a West German peculiarity; but the

5
For this conception of totalitarianism, see David Roberts, The Totalitarian
Experiment in Twentieth-Century Europe, New York 2006.
 müller: Europe 43

imperative of democratic self-protection, if necessary in an aggressive

manner, became pervasive across Western Europe. In Italy the Christian
Democrats, de Gasperi in particular, sought to establish a form of ‘pro-
tected democracy’—una democrazia protetta—that was to restrict civil
liberties, but also justify electoral laws benefiting major parties.6 The
initiative failed in the Italian Senate, most likely because the Vatican
had an interest in preventing a ban on right-wing parties and thereby
keeping its political options open.7 And while the Italian constitution
had explicitly prohibited the re-establishment of the fascist party, its de
facto successor, the Italian Social Movement (msi), consolidated itself as
a minor party with stable support.

Still, for all these biases and failings, there emerged after the war a new
constitutional settlement. It was informed by the perceived lessons of
the interwar period: whereas fascists (and Stalin) had tried to create new
peoples from above—the Volksgemeinschaft or Soviet Man—the point
now was to constrain existing ones. Concretely, this meant weakening
parliaments and, in particular, restricting the ability of legislatures to
delegate power; thus protecting them, it was hoped, from the kind of
democratic suicide the Weimar Republic and the French Third Republic
had committed—never again should an assembly abdicate in favour of
a Hitler or a Pétain. Many of the functions of the expanding post-war
welfare and regulatory states were indeed delegated to administrative
agencies; but these in turn were made subject to strong judicial and
administrative oversight, to alleviate the kind of liberal anxieties about
the rule of law voiced, for example, by Gordon Hewart during the inter-
war years. In 1929 the then Lord Chief Justice of England had alarmed
his fellow citizens with the notion that the administrative state was
producing ‘a despotic power’ which ‘places Government departments
above the Sovereignty of Parliament and beyond the jurisdiction of the
Courts’.8 Rule by ‘departmental despot’, issuing decrees and adopting
highly specific policy measures, was destroying ‘self-government’. The
post-war administrative state was designed precisely to avoid such law-
lessness through more judicial and executive oversight.

European integration—this is crucial—was part and parcel of the new

‘constitutionalist ethos’, with its inbuilt distrust of popular sovereignty

6
Paul Ginsborg, A History of Contemporary Italy, London 1990, p. 142.
7
I am grateful to Giovanni Capoccia on this point.
8
Lord Hewart of Bury, The New Despotism, London 1929, p. 14.
 44 nlr 73

and the delegation of tasks to agencies that remained under the close
supervision of national governments. Member countries consciously
delegated powers to unelected domestic institutions and to supra-
national bodies, in order to ‘lock in’ liberal-democratic arrangements
and prevent any backsliding towards authoritarianism. This devel-
opment was even more pronounced with the Council of Europe and
the European Convention on Human Rights, essentially a Christian
Democratic–Tory creation.

My point in telling this story is not to suggest that there are not serious
problems of legitimacy for the eu. There clearly are. Rather, what I want
to emphasize is that some of the typical mechanisms of the eu—and,
at least indirectly, justifications for them—are not so radically divorced
from the national models of democracy that emerged in Western Europe
after 1945 as nostalgic accounts of the supposed golden age of Social
Democracy would lead one to believe. The latter interpretation only really
holds for Britain (and even there with serious reservations); moreover,
while the post-war model was challenged many times—most notably
by the movements conventionally summarized under the chiffre of ’68,
and by neoliberalism—it largely survived intact and, if anything, was
extended to Central and Eastern Europe after 1989.

The eu, or so an observer remembering the 1960s and 1970s might con-
clude, is virtually always ‘in crisis’. What is different about the present
conjuncture? Two matters, which directly touch on inherited conceptions
of the eu’s legitimacy as such. First, while it was always an idealization
to assume that power delegated to administrative agencies and courts
was exercised in an apolitical way, the recent euro crisis has led to a level
of intervention in individual member states that is altogether different
from what Brussels (or, rather, Bonn and Frankfurt) demanded in the
run-up to the single currency in the 1990s. Countries like Greece are
now effectively forced to renegotiate their basic social contracts. Such
interference, without any overarching supranational architecture to gen-
erate legitimacy, is both quantitatively and, I would argue, qualitatively
new: it goes beyond what might have been covered under the old post-
war European understanding of constrained democracies.

Second, the premise that supranational delegation will lock in liberal-

democratic commitments has been severely tested by at least one
country moving decisively outside the post-war European understanding
 müller: Europe 45

of democratic politics: Hungary. Here the repudiation of checks and

balances, the promulgation of a nationalist-populist constitution and
the general disregard for the rule of law has gone far beyond what Jörg
Haider or the Kaczyńskis ever did or thought of doing. Yet the eu has
been largely ineffective in addressing this clear case of sliding towards
a form of authoritarianism.9 Anderson’s comforting assumption about
Berlusconi’s Italy (never as much in danger of authoritarianism as
Hungary is today)—that ‘the ideological and legal framework of the eu
rules out any break with a standard liberal-democratic regime’—can no
longer be taken for granted. Brussels’s promise—not that it would be
democratic itself, but that it would protect democracy—appears hollow;
supranational delegation, always questionable from the perspective of
democratic theorists, no longer delivers the substantive normative goods.

The double crisis is a direct effect of the incoherence of the present state
of the Union. In theory, it could be overcome in two ways: step back
into a pre-euro world, where the Union is essentially a free-trade zone,
possibly one that gives up any pretensions to secure and sustain democ-
racy; or leap forward into a common economic government on the basis
of some meaningful forms of Euro-democracy, perhaps even a militant
version that would not tolerate a Fidesz-dominated semi-authoritarian
Hungary in the name of ‘diversity’. Durchwursteln is no longer an option.
Given the reluctance simply to scrap the euro, the second path may turn
out to be the only promising one. But will states be willing to abandon
the logic of supranational delegation?

View from Berlin

One could be forgiven for thinking that the general historical account I
offer above is a tad Germano-centric: powerful constitutional court, mil-
itant democracy—these are ultimately German inventions, one might
say, even if they have spread, at least temporarily, to countries like Spain
and Hungary. But will Germany—more distrustful of popular sover-
eignty perhaps than any other large eu state, and a major beneficiary of
the post-war constitutional settlement—be willing to risk more democ-
racy in the eu? Here The New Old World’s analysis of changes in German

9
See my ‘The Hungarian Tragedy’, Dissent, Spring 2011. The European Commission
has in fact recently started infringement proceedings against Hungary. It remains
to be seen whether the eu will take any stronger measures, such as suspending the
country’s voting rights.
 46 nlr 73

political culture since 1989 becomes relevant. Anderson has identified

tectonic shifts—in particular the right-wing move in published opinion,
seemingly working against a left-wing shift in electoral outcomes—
which, to my knowledge, nobody inside the country has remarked on
with similar acuity. At the same time, Anderson’s touch is not always
sure here, and—more so than in other chapters—wishful thinking
creeps in. There is indeed a ‘sociological majority’ for the left in today’s
Germany—i.e. a Red–Deep Red–Green coalition—but there are also for-
midable obstacles to any such coalition ever being realized. Anderson is
right to emphasize that the Greens have become a political machine of
and for bobos—effectively a liberal party plus radical chic—with only a
few truly distinctive policy positions, such as on energy, that could pre-
vent a cdu–Green coalition. The last real obstacles to a Black–Green
marriage were effectively removed when Angela Merkel committed to
an Atomausstieg in spring 2011, thereby increasing her coalition options
to three (fdp, Greens, spd).

At least in theory, however, a cdu–Green coalition would remain highly

peculiar when it came to strategies for resolving the contradictions within
the European project. Christian Democrats were the original architects
of the post-war constitutional settlement, while the Greens, for all their
opportunism, remain the heirs of ’68, which challenged that settlement
head-on in the name of direct (that is, un-delegated) democracy. And look-
ing at their conduct in Baden-Württemberg—the first Land with a Green
prime minister—it seems that die Grünen remain at least somewhat com-
mitted to values of popular participation. Two visions of democracy in and
for Europe, then, might directly confront each other; and perhaps become
decisive for the future of the Union as a whole.

If, that is, Germany is willing to use its de facto power—or, put more
politely, to exercise its responsibility—to shape the eu into a coherent
polity. Anderson is scathing about German political culture and the
new Berlin in particular, with its ‘antiquarian masochism’, when the
Germans could have given the gift of a world city to the rest of Europe;
while complaints about waning German Euro-enthusiasm have prolif-
erated across the Union. Such aesthetic-cum-political impressions are
echoed by the one intellectual whom Anderson rightly identifies as a cru-
cial protagonist in the story of Germany’s intellectual drift to the right:
Karl Heinz Bohrer has consistently ridiculed the German political class
for its unworldliness—Weltunerfahrenheit; its self-serving attempt to use
 müller: Europe 47

the past as an excuse for irresponsibility in the present; and, not least,
the simple inability to think in broader (and more generous) terms about
Europe.10 One can safely dismiss Bohrer’s rather naive admiration of
British, French and American diplomacy—their Welterfahrenheit could
only impress a German audience if it were indeed as provincial as Bohrer
thinks it is—and still agree that timid muddling through, out of fear of
real Europapolitik, could actually lead to the destruction of Europeans’
greatest political innovation since the democratic welfare state.

Of course, calls for ‘more German responsibility’ are often disingenuous;

smaller states especially continue to fear what Thomas Mann described
as the nightmare of a ‘German Europe’ (as opposed to a ‘European
Germany’). More important, an effective eu and democratization might
not go together in the short run. This is the conclusion of Herfried
Münkler, rightly flagged by Anderson as one of the few intellectuals who
are actually listened to in Berlin. Münkler wants to strengthen the ‘cen-
tre’, rather than have the periphery—Greece, Ireland, etc.—dominate an
ever weaker Zentrum. Strategy (to increase eu power) matters, not legiti-
macy; and confusing the two, according to Münkler, is a cardinal sin in
politics ‘which cannot be forgiven’.11 But why is it an either/or? Ignoring
legitimacy—or thinking that the right strategy will automatically create
it—is arguably as grave a sin; and only an ingenious combination of
more power and a stronger sense of democratic legitimacy can help the
eu to overcome its double crisis.

10
Karl Heinz Bohrer, ‘Projekt Kleinstaat’, Merkur, August 2011.
11
Herfried Münkler, ‘Democratization Can’t Save Europe’, Der Spiegel, 7 August 2011.