Habermas's European constitution: Catalyst, reconstruction, refounding

Date01 September 2019
Published date01 September 2019
Habermas's European constitution: Catalyst,
reconstruction, refounding
Neil Walker*
Jürgen Habermas has long been one of the EU's most prominent and influential critical friends,
engaged as much at the level of legal and political praxis as social theory. In particular, he has a close
and complex longstanding interest in the idea of an EU constitution. On the occasion of his 90th
birthday, I want to discuss three treatments of the EU constitution located in Habermas's work:
constitution as catalyst, as reconstruction, and as refounding. We find the different treatments,
and the priorities that underscore them, emphasised at different timespartly reflecting changing
political circumstances. We also observe some tension between the different approaches. Yet, as
someone broadly sympathetic to his overall project, I argue that the best understanding of the
Habermasian position, and certainly the most attractive version of that position in today's political
climate, involves reconciling all three treatments within a single package.
The observation that Jürgen Habermas
has been long regarded as Europe's leading public intellectual
calls forth
quite different reactions. From one perspective, it presumes too much. Europe is a big place, made up of many
different languages and cultures, and so even the renowned German philosopher might expect competition at the
top table from prominent figures in other European nationstates. From another perspective, however, the attribution
appears quite unremarkable, perhaps even selfevident. For if we think of Europenot as an aggregation of states but
as its own distinct political and cultural space, Habermas's credentials are immediately more compelling. Supranational
Europethe Europe of the EU, equipped with its own political institutions and public culturealso has its own
dramatis personae, who overlap but are not identical with the key national players. And noone over the last 30 years
outside the formal offices of the Union or its Member States has done more to initiate, stimulate and spread serious
discussion within the European politicocultural project over its condition and future prospects than Habermas. In so
doing, of course, Habermas speaks to that of which he is a contributory part, and, in so speaking, further contributes
to that to which he speaks. And the intensely reflexive quality of his contribution is compounded by the fact that
*Regius Chair of Public Law and the Law of Nature and Nations, School of Law, Edinburgh University, UK (neil.walker@ed.ac.uk).
All references to Habermas's work below are to the English version, whether translated or original.
J. Waldron, The Vanishing Europe of Jürgen Habermas(2015) 62(16) The New York Review, 22 October.
Received: 17 August 2019 Accepted: 20 August 2019
DOI: 10.1111/eulj.12341
508 © 2019 John Wiley & Sons Ltd. Eur Law J. 2019;25:508514.wileyonlinelibrary.com/journal/eulj

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