Habermas's European constitution: Catalyst, reconstruction, refounding

• Date: 01 September 2019
• DOI: http://doi.org/10.1111/eulj.12341
• Published date: 01 September 2019

SPECIAL ISSUE ARTICLE

Habermas's European constitution: Catalyst,

reconstruction, refounding

Neil Walker*

Abstract

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 times—partly 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.

1|INTRODUCTION: REFLECTING (ON) EUROPE

The observation that Jürgen Habermas

1

has been “long regarded as Europe's leading public intellectual”

2

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 nation‐states. From another perspective, however, the attribution

appears quite unremarkable, perhaps even self‐evident. For if we think of “Europe”not as an aggregation of states but

as its own distinct political and cultural space, Habermas's credentials are immediately more compelling. Supranational

Europe—the Europe of the EU, equipped with its own political institutions and public culture—also has its own

dramatis personae, who overlap but are not identical with the key national players. And no‐one 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 politico‐cultural 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).

1

All references to Habermas's work below are to the English version, whether translated or original.

2

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;25:508–514.wileyonlinelibrary.com/journal/eulj