On the Disregard for History in the Convention Process

• DOI: http://doi.org/10.1111/j.1468-0386.2006.00301.x
• Author: Christian Joerges
• Published date: 01 January 2006
• Date: 01 January 2006

On the Disregard for History in the

Convention Process

Christian Joerges*

While the French were voting, I was attending a conference in Haifa dealing for five

long days with ‘World War II and its impact on the law’. The media transmitted the

result of the referendum. But the French ‘non’that marked an end to the ambitious

drive for a deepening of the constitutionalisation of the Union did not attract much

attention among the conference participants. Why? Are World War II, the existence

and the fate of Israel, and the European project not obviously linked with one another?

Today’s Europe is marked by the experiences of the totalitarian regimes of the twentieth century and

by the Holocaust—the persecution and extermination of the European Jews, in which the Nazi regime

also involved the societies of the countries they had conquered....A belligerent past formerly involved

all the European nations in bloody conflicts. It was from the experience of the military and intellectual

mobilization against each other that, after the Second World War, they drew the conclusion that they

had to develop new supranational forms of co-operation.1

The French ‘non’may have been predictable.It was still a shock to so many proponents

of the new constitution. Should we be surprised by the fact that the shock was not felt

in Haifa? Does Israel’s inattention indicate that institutionalised Europe has silently

moved beyond the raison d’être of its formation? The old past to which Derrida and

Habermas refer in their manifesto was indeed hardly visible during the ‘convention

process’. It was only after delivery of the Draft Constitutional Treaty’ of 18 July 2003

that the Intergovernmental Conference, following a Polish initiative, changed its

Preamble. The first two somewhat ostentatious original passages with their citation

of Thucydides and praise for Europe as the herald of civilisation were dropped and the

reference to ‘re-united Europe’ replaced by a ‘Europe, re-united after bitter experi-

ences’.2One could have imagined a more substantiated reference. But the amendment

was hardly noticed anyway. Has Europe become insensitive to its acquis communautaire

historique? Can it afford such a dismissal?

European Law Journal, Vol.12, No. 1, January 2006, pp. 2–5.

© 2006 The Author

Journal compilation © 2006 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ,UK

and 350 Main Street, Malden, MA 02148, USA

*Professor of European Economic Law, European University Institute, Florence.

1Jürgen Habermas and Jacques Derrida in the Frankfurter Allgemeine Zeitung of 31 May 2003

(Translation by Iain Fraser). See the concluding sentence of Tony Judt’s Postwar. A History of Europe

Since 1945 (Penguin, 2005) at 831; it is more than deplorable that ‘the bitter experiences’ fail to mention

the Holocaust.

2The ‘bitter experiences’ were taken from the Preamble of the Polish constitution which reads: ‘Mindful of

the bitter experiences of the times when fundamental freedoms and human rights were violated in our

Homeland...’