HLS Library Book Talk | ‘Constitutional Pluralism in the EU’ by Klemen Jaklic
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HLS Library Book Talk | ‘Constitutional Pluralism in the EU’ by Klemen Jaklic

all for coming very much. My name is Bill Alford,
and I’m faculty head of our graduate program. I’d like to start
our session first by thanking the library,
thanking June Casey and Suzanne Wones, who unfortunately
has a stomach virus today, and so she won’t be with us. But I want to thank
the library very much for hosting this
event and providing us this occasion to honor Klemen
on his accomplishments. So it’s just great to be here. I want to thank also our
two speakers after Klemen– professor Vlad Perju,
himself another product of our doctoral
program and currently professor of law
at Boston College and head of the
Clough Center there, where he’s done amazing things,
including recently having Habermas to speak, no less. And my colleague,
Frank Michelman– AUDIENCE: Did you
say Jurgen Habermas? WILLIAM ALFORD: Yes. AUDIENCE: Wow. WILLIAM ALFORD: That’s right. The Jurgen Habermas. And Frank Michelman, who
is a Walmsley university professor at Harvard, the
highest honor the university has. Alas, Walmsley
professor emeritus at this point,
although still happily very active intellectually
in the faculty. So it’s great, as
I said, to have this occasion to honor Klemen. Klemen earned his first
degree back home in Slovenia then came to Harvard Law
School initially for the LM and subsequently
for the SJD as well. And Harvard Law
School SJD student, as if he were not busy enough
to keep himself occupied with that, he also became a
doctoral student at Oxford and has completed
both doctoral degrees, each leading to a major
publication, at least one of which– and parts of
the second of which– we will hear about today. So let me say a few
things about Klemen to just get our
discussion started. Klemen has a good deal of
pertinent practical experience. He was an adviser or counselor
for constitutional matters in the office of the prime
minister in Slovenia. He advised on
constitutional issues to the National Assembly. He’s a member of the
Venice Convention. So he has a kind of a
rich practical sense to some of the
constitutional issues that we will be
talking about today. Here at Harvard, he’s
been a superb teacher. He has taught a
variety of offerings– taught at Harvard Law School,
taught at the Kennedy School, offerings well on the European
Union, on Public Ethics, on human rights. But we’re here, of course,
because of his scholarship. Again, Klemen wrote
two dissertations. He’s truly a masochist. The first has taken
the form of the book that we’ll be speaking
about today, Constitutional Pluralism in the EU. And it’s published in a series
by Oxford University Press that’s edited by Paul Craig
of St. John’s College Oxford, which Paul Craig, being a
superb British EU and public law scholar, who is Klemen’s
European adviser for matching Frank Michelman
here on the US side. Klemen has second
major project called Democracy’s Third Coming– Europe as a Route to
Humanity’s Third Historic Stage of Democracy, an earlier
version of which, as his SJD dissertation here,
won the Mancini Prize in 2011 as the
outstanding work in European law and legal thought. Now, as we’ll hear today,
first from Klemen and then Vlad and then Frank and then
questions, Klemen’s work is conceptually highly
original and powerful. It’s extraordinarily
learned and dense. And it’s really quite bold. He’s not reluctant
in this book to take on some of the most noted– really the most noted–
thinkers about Europe and constitutionalism. People like Neal McCormick,
Neal Walker, Miguel Maduro, and our former colleague
Joseph Weiler even. And takes on as well their
visions of pluralism, arguing in points that are
perhaps too procedurally focused and not rich
enough substantively, arguing in the
case of Joseph one should perhaps be thinking
less parochially of Europe and more of the possibilities
of new models of democracy that this experience offers. It’s really impressive work. And as we will hear, Klemen
is challenging us, saying the two earlier great moments– this is more perhaps presaging
the final chapter of this book and the next book– there was Athenian democracy. There were the great revolutions
at the end of the 18th century, and now with the European
post sovereign moment, there’s an opportunity
for a third and yet richer form of democracy. Anyway, we start
happily with Klemen and then turn to Vlad
and Frank and questions. So thank you so much. KLEMEN JAKLIC: Thank
you very much, first of all, for arranging
this, professor and vice dean Bill Alford. Also, thank you, June
Casey and the library who is hosting this event. And of course, my
dear, dear colleagues and friends, professor Frank
Michelman and professor Vlad Perju, to agree
to be here today as respondents and co-panelists. And thank you, all
of you, for coming. I really, really appreciate it. So constitutional pluralism–
constitutional pluralism claims to be a new
and superior branch within constitutional thought. It rejects the old
traditional monist paradigm, according to which we
get together in a way that we monopolize a
particular territory and make ourselves
the sovereign of it. And so it also
rejects the paradigm that law and political power of
any given sovereign territory originates from one
and hierarchical source of constitutional authority
that is the sovereign people and their constitution. Instead, constitutional
pluralism evolved from a scholarship
on the new Europe where scholars have observed
that we seem to have, on the one hand,
the nation state constitution and their
people, and on the other hand, the European constitution
and their people or peoples. And that these two
constitutions and their sources seem to be in a
heterarchical rather than hierarchical relationship
between each intersect. So it’s been around this
idea, this core idea that, in the last
20 or so years, a large body of scholarship has
evolved and claims that Europe should continue along
that pluralistically distinct path for
monism, and this is also normatively superior. Some constitutional
pluralists have overstepped the European context,
claiming that this idea offers some really great
advantages also for the further development of
the idea of constitutionalism, as well as for the development
of the just world order in a globalized context. The branch has really become
the most dominant branch, and probably the leading branch,
of European constitutional thought. So much so that authors like
Joe Weiler and Nick Barber ask themselves and ask us, are
there any remaining monists out there among the
European scholars, or have we all
become pluralists? This work is the first
comprehensive analysis of this new branch of thought. And as such, it has
three broad aims. The first one is a
comprehensive mapping analysis of the leading branches, of the
leading subbranches, versions of constitutional pluralism. The second one is a
comprehensive assessment of this body of scholarship. And the third one is
an attempt to show where the superior
conceptions, superior vision of constitutional
pluralism, might lie. So to begin with the first
one– the mapping analysis. This is not just a replication
of the scholarship out there. I tried to take the debate
further in a few senses. One of them is, for
instance, that with each of these versions,
each of these authors, I tried to pull together
various bits and pieces in their articles, in
their book chapters, and form a coherent version
of constitutional pluralism for that particular author. And so I also tried
to fill in the gaps. I also tried to reconcile
certain inconsistencies. And I did that by consulting
these authors themselves. So we read drafts and so on. I met with all of them, some
of them for several times. So in this sense, it tries
to take the literature– the contribution further
from the existing literature. The second sense is
the way in which I approach this mapping analysis. This body of
scholarship has rightly been described as
a whole labyrinth, because it’s so intricate. It’s so unclear. And so what I do,
I agree with that and I say it’s impossible
to really map out the whole terrain without using
the so-called decoding tool. And I call it like
the Ariadne’s thread. And I explain it
in the beginning. And this tool I say we will
use as we go along and map out the whole terrain. And this tool posits
four distinct types of discourses, four distinct
types of pluralist discourses. The first one is the
discourse of the who. The discourse of
the who is about who has the final authority. Is it the European Court or the
national constitutional courts? And so this is the
classical debate. And so some authors refer
to constitutional pluralism with respect to this
particular discourse, with respect to the who. And there’s the
discourse of the how, which is quite
different from the who. And it is about how
we ought to approach constitutional interpretation
in the new pluralist setting. There’s the third theme, which
is the theme of the what. The theme of the what
is about the content of constitutional pluralism,
about reconciliation of the nation state’s
constitutional identity with the European
constitutional identity. And there’s the fourth
type of discourse. This one is the most abstract. It is the discourse
about the systemic theory and tries to explain how
constitutional heterarchy is different from hierarchy in
that most theoretical sense. So there is a whole mess, I say. There are these
different discourses, different pluralists work
within different subject matters that are even
contradicting with each other sometimes. And so the result of
the mapping analysis is a real challenge for
constitutional pluralists who say that they
are a new branch. And this brings us to the
comprehensive assessment part of this project. Is there truly a
common new branch, even unique and superior, given that
there is such a heterogeneity of thought? And so I dig into
this first puzzle and I do answer it positively. There is a common denominator
to all these subbranches of pluralism. I define it in a way that has
not yet before been defined. And so I say this most
abstract discourse, the foundational type of
discourse, the fourth one, is actually underlying
all of those who, how, and what discourses,
which are the applicative discourses that spring
from the abstract basis. And yet things are
not that simple because even within
the abstract discourse, some pluralists differ
significantly and even contradict. So what I do is
I dig even deeper and find a common denominator
in an even higher abstraction, which is still distinct
from constitutional monism, but it is a common
denominator to all these various other pluralists. So there we have this whole
picture emerging with a tree down there, the trunk, the
common denominator, and then various subbranches and so on. When we have the
picture like this, it is also easy to answer
some of the existing fundamental criticisms of
constitutional pluralism that claim that
constitutional pluralism isn’t any distinct from our
constitution monism. And it’s easy to show
how some of the currently existing criticism of
that sort is actually situated in one of those
little subbranches up there and trying to do something
there, whereas you have to cut the whole tree down. You have to go at
the trunk really in order to show
that it doesn’t work, that it is the same as
constitutional monism. And then the next step in
the comprehensive assessment is the interactive
theoretical assessment. So each of these
various approaches by the different
pluralists are assessed for their internal coherence. And I find, of course,
different results there. I argue for some
reorientation and so on. And the final step in
the critical assessment is the inter-theoretical
assessment. So the assessment of various
different approaches intersect. And this leads also to
interesting results. I say the procedural
branches, the most procedural versions of
constitutional pluralism, might be too thin. They are distinct within the
issue of the who– who decides, who decides– from constitution monism. They are distinct also from
in the theme of the how. However, in the decisive
theme of the what, in the content of the
constitutional rights and constitutional regimes,
they might be just as the same as average monism or even worse. So they come around full circle. Even a weak regime could comply
with the pluralism within the who and within the how, and yet
reach very degrading results within the what. And on the other hand, the
more substantive branches avoid this problem, but they
have some other difficulties. And the major one of
them is that they do not focus on the field of democracy,
where I see the greatest potential for constitutional
pluralism– not just potential, but the only way in
which it can truly be sufficiently distinct
from constitutional monism. And there was a hint a few
years ago by late professor Neal McCormick who’s actually a
founding father of this branch that I tried to elaborate what
constitutional pluralism would mean for democracy. And that’s the work that
I did here at Harvard. And I did find– and I included the last
two chapters of that work and put it in here. And I did find that it’s
only in here in this field that constitutional
pluralism can really claim its superiority. And this is because
it has the potential for unleashing a serious,
even historic, I say, enhancement of democracy. That goes to that third stage
that professor Bill Alford mentioned. This conception is
one that is based on a unique type of
counter-factual respect between the bearers of dignity. It is a combination of
that respect that we cannot but agree on among
the reasonable. It is a combination
of that respect, with some unique
factual as well as normative features of
constitutional pluralism, that I explain and develop
that lead to what I call is a germ of substantive
superior conception of constitutional pluralism. This germ is a particular
device, interpretive device. It’s a thought experiment akin
to Rawlsian original position, except it is devised for
the global new setting. And I would argue it’s
superior in that sense, because that one was
still a monist’s device. And so these actors, the
European actors, the Europeans, the reasonable within the
proponents of the European state idea and the proponents
of the nation state monist idea, get together and argue
through that device, which they cannot but
accept, as I will explain, provided they are reasonable. And as they do that, they
constitute a more legitimate and just getting together,
which is a pluralist as opposed to a monist type
of getting together. They create actually
step by step a fuller picture of this pluralism. So the germ of
constitutional pluralism becomes a so-called full
blown substantive pluralism. And a full blown
substantive pluralism is already that new
model of democracy, which is a supernational
type of democracy, which is distinct from
anything we have seen so far. And it is the only
way in which we can distinguish
constitutional pluralism from constitutional
monism, I argue. It’s the only way in which
we can refine or cure some of the democratic deficits
of the current monist regimes. And it’s the only way in which
constitutional pluralism can also get away from
the weaknesses that I defined in the
inter-theoretical assessment. And so this is– indeed I say if
constitutional pluralists want to claim that this is
the superior approach within constitutional
thought, they need to reorient
towards that solution. FRANK MICHELMAN:
Thank you, Klemen. Thank you. VLAD PERJU: Well, it
is a great pleasure to be joining in the celebration
of Klemen’s extraordinary book. This is a learned, original,
lucid, and extraordinarily ambitious project. And it is a project that
I think does justice to the subject matter, which for
the purposes of my discussion and much of the book,
is really the project of European integration– an important essential topic
of the future of the state and of constitutional
law in Europe, the continent that has
invented this particular form of political organization. Klemen mentioned the first
part of the book, the mapping. This is an absolutely
extraordinary tour de force. This is a tour de
force where authors and the different
constitutional accounts are read generously,
where Klemen engages in an extraordinary
attempt to sort of normative
reconstruction of getting to the absolute
core of the claims that these different authors
make of not getting stuck on any particular
occasional infelicities of their particular
accounts, but really getting to the very heart
of what they have to say and understanding the landscape
of European constitutionalism really needs in its best light. So this requires a
great amount of skill as well as
intellectual integrity. And so this is an
extraordinary book that I highly
recommend, especially in the hardcover version. [LAUGHTER] Buy the hardcover version. AUDIENCE: Is there
another version? VLAD PERJU: Well, there will be
a paperback version, I imagine, soon, but you should run to buy
the book as soon as possible. And don’t buy it
on Amazon where you might get it a
little bit cheaper, just buy it from Oxford,
straight from Oxford, at full price. So my engagement with
the book and the comments that I will offer
today are really by way of inviting Klemen’s
thoughts on a number of different directions. Some of them having to do
with the particularly European nature of this project. And some, though, basically
only one, more general. The first thing
to say is that it helps to historicize
a little bit of constitutional pluralism. So as Klemen just mentioned and
as you will find in the book, the starting point of the
pluralist constitutional account really is an article
that the late professor McCormick, an extraordinary
article by the late professor McCormick, on “Beyond
the Sovereign State,” published in 1993, based on
lectures that he gave at LSE, I think, a year
before that in 1992. Now, 1992 is also the year
of the Maastricht Treaty. This is when the Maastricht
Treaty is signed, will come into
effect a year later. This is the time of
enormous tectonic shifts in the political legal
process of Europe. This is only a couple of years
after the fall of communism. This is the moment when
Europe is trying to understand how to expand, what this is– how to cope with the
German reunification. 1993 is the time of the
Copenhagen criteria, that is the criteria that the central
and Eastern European states would have to meet before
joining the European Union. It is 1992, the moment
of extraordinary battles, when the European project
meets the peoples of Europe– the ratification battles of
the Treaty of Maastricht, two referenda in
Denmark, one narrowly won referendum in France. This is the moment
of very many opt-outs and political negotiations
to get the Maastricht Treaty signed, to
get the Maastricht Treaty ratified, to get the
Maastricht Treaty into effect. Everybody understands
that the Maastricht Treaty is extremely important. It is also the moment when the
German Constitutional Court– I shouldn’t put it
enters the stage, because the German
Constitutional Court has been there all along. But the moment when the
German Constitutional Court takes the Maastricht
Treaty and sets the terms in a way of the constitutional
debate between the nation states in Germany, but
many other states as well, and the European Union. The decision of the German
Constitutional Court comes towards the
end of 1993, I think in October, November 1993. And it is the moment when
the German court shows itself to be really the
intellectual leader of the constitutional
European stage populated with very many actors. So this is all by way of saying
that constitutional pluralism is the constitutional theory
of a particular moment in the history of the process of
European integration, a process that starts early on and starts
towards the early, late 1950s. So the first set of questions
and thoughts that I want to ask refer to whether
you, Klemen, believe that constitutional pluralism
as both a descriptive and normative matter– and I will say a little bit
more about that in a moment– also is a relevant
lens for understanding the development of
constitutional integration before Maastricht. So whether constitutional
pluralism is also a descriptively accurate
and normatively appealing constitutional account
of the Europe of Rome or the Europe of the
Treaty of Paris– of what happens in Europe
between the 1950s and basically the end of communism,
early 1990s. Another way of
asking the question is whether it is taking on
an originalist framework. So in other words,
do you believe that the constitutional
pluralism, in any of the many
sophisticated versions that are identified
here in the book, is actually originalist in
a Dworkinian almost way? That is, whether it is faithful
to what the initial project, to what the founders
of the project of European integration,
in a sense, had in mind? And I don’t really– I’m thinking here about
people like Robert Schuman or Jean Monnet, the
Wikipedia of founders of the project of
European integration, but to that set of
extraordinary jurists who come of age, who are in
power fully in the 1950s, and who set up and place
a project of integration like the world has never seen. People like Maurice LaGrange,
like Alberto Trabucchi, like Pierre Pescatore, like
Walter Holstein, Michel Godet, people for whom the project
of European construction was not as Holstein–
very nicely put– it was not one of
moving furniture around, but one of building a new house. This question can be asked
in a variety of ways, so you can answer
it in whichever way you find interesting. Are these people that you see
yourself in a conversation with? Are these people that the
constitutional pluralist that you map here see themselves
in a conversation with? And is that sort of a fruitful
way of thinking about Europe? Finally, and this is a
relatively small point, both of the questions,
both the descriptive and the normative questions
that I have asked, refers to Europe
before Maastricht. It is possible, I
think, to also ask the question about
the normative, about the descriptive accuracy. I mean, the descriptive state. The descriptive accuracy
of constitutional pluralism for the post Maastricht Europe. Now, if you look– and here the argument would be
that if you look at what many believe continues to be the hard
core of European integration– that is the rules referring
to the internal market, including stuff like competition
and free movement of goods– there there seems to be a very
hierarchical, very top down, very clear, very non
accommodating, very non tolerant way in which Europe
conducts its business. On some of the other areas
of European integration– the jurisprudence of persons,
the jurisprudence of services, human rights– we do see the kind of
tolerance, accommodation, of different constitutional
jurisdictional levels, jurisdictional norms. So it might also be
possible to ask the question about the descriptive accuracy
of constitutional pluralism referring to the post
Maastricht Europe. This concerns the
part of historicizing constitutional
pluralism and putting it in the context of
the larger project of European integration. The second set of
questions, or a topic on which you got me
thinking, concerns the institutional prescriptions
of soft anti-pluralism. Now, it is clear from
the book that you have an affinity
that I find very reasonable for substantive
pluralism for the kind of constitutionalizing
that one sees in McCormick, one sees in the work of
people like Joseph Weiler. Neither of whom, as you, I
think, rightly point out, have really developed what
the project of integration means for the
project of democracy. And you’re right,
that it is here in the thinking about
democracy that pluralism is a novel approach to
constitutional political ordering, has its greatest,
perhaps, historic potential. It is with this that
monism cannot compete. The discussion of
democracy as such, leaving aside pluralism
for a moment in the book, is one that reiterates a
very important dimension of democracy– that is the
self-governing dimension of a free community of equals,
that normative commitment of a certain type of
political community, but does not engage
much in questions of institutional dimension–
institutional structural, institutional restructuring,
institutional imagination. And some of the substantive
pluralists, people like Weiler, are of course very interested
in these questions, as, I think, are you, and as I
believe one should be. So there the
question– what does a particular version of
substantive pluralism have to tell us about
institutional design if anything? And this is important– this
is an urgent question almost, because Europe does find
itself, at the moment in its development,
when questions of institutional
design are essential. Likely the future
of Europe will be a future of Europe
of different speeds, for example, a future of sort
of different kinds of clubs. Is it possible– does
constitutional pluralism condone the kind of actions
that we have seen recently in the context of the financial
crisis with the European Stability Mechanism? Where the members
of the Eurozone completely bypassed the entire
legal structure of the treaties and set up an entirely
parallel kind of framework. Then what does constitutional
pluralism tell us, if anything, about how to structure
the European Parliament? About whether political
representation at the supernational
level should mirror, as closely as
possible, the structures of political representation
at the national level, which seems to be a
particularly important moment. Then what does it tell
us about the development of the European Council? This is where the heads
of state are meeting, which seems to epitomize
Charles de Gaulle’s vision of European
integration really, where national
governments become in charge of the
process, and which has been the central
setting, institution, where power has been exercised
in the recent financial crisis. One last point– as I
was reading the book, I had the sense that
I once had reading Mircea Eliade’s extraordinary
History of Religious Ideas. So when you read Eliade’s
History of Religious Ideas, and it is a
breathtakingly original and thoughtful and
interesting and smart account of the
history of religion, written by somebody who is not
particularly religious himself. And this comes through. You sort of see it. So I was reading the
first part of the book and I was thinking, well, this
is a little bit like that. Is Klemen a pluralist or
is he not a pluralist. I can’t really tell. Now, it turns out that sort
of towards the last part of the book, you’re a
pluralist with a vengeance. Not only are you a pluralist,
but you’re the real pluralist, which I thought was wonderful. And let me give you
a very quick example from the jurisprudence
of the court, to take a case to
try to make my point. There is a wonderful case, a
human rights case in Europe, that involves a
company from the United Kingdom that is trying to open
up a franchise in Germany. And what they do is they
provide the entire structure for the laser tag game. So when they try to open the
franchise in Bremen in Germany, the German police doesn’t give
them the license on the basis that laser tag is basically
playing about killing people. And that that kind of
game, that targeting, the process of targeting, is
a violation of German dignity. Now, it certainly
was not a violation of any conception of dignity
in the United Kingdom, legal or other. So this question comes before
the European Court of Justice. The European Court of Justice
says that there should not be only one conception
of dignity across Europe, that the Germans can have their
own conception of dignity, and the UK can have its
own conception of dignity, and whether this
is ultimately going to impose some limitation on
the free movement of services and the free movement of
goods, then let it be. Because we have to defer to the
German conception of dignity, which is a conception that seems
to be very attuned and very accommodating of difference
and the tolerant, and of different
interpretations of human rights. But it is one that I don’t think
substantive pluralism would condone, simply because the
European Court of Justice defers to the German
interpretation of the meaning of dignity, rather than engage
in a conversation about what the Germans mean by dignity and
what the equivalent that value has in the UK system
and how that relates to some other European
system and how that relates to the entire
European legal order. So there is nothing
substantive there. It is just simply procedural–
procedural version of pluralism. So I imagine that
substantive pluralism would– I will be done in one minute. A wonderful book– I could go on and on. So I imagine the
substantive pluralism would mandate a version
of substantive engagement between these different
constitutional traditions. But then my question is, if the
more substantive you become, the more serious that
engagement becomes, the more a particular
legal system has to travel in
order to encounter different constitutional
traditions, the more it seems
to me that that becomes like a sophisticated
version of monism. A credible version
of monism rather than a substantive version
of pluralism, or at least, I don’t exactly know
what the difference is. And so the question
becomes whether there is anything to this,
whether one’s thought does go in this direction. Whether the very distinction
between monism and pluralism is particularly
helpful, or whether it is like the distinction between
positivism and natural law. That is a distinction
that historically has been incredibly
important, but whose relevance for understanding our
own condition is perhaps somewhat limited. Which only goes to
show that I’m actually waiting for the second book
where these questions will be– which I will buy in paperback. [LAUGHTER] WILLIAM ALFORD: Thank you. And Frank, thank you. FRANK MICHELMAN: My
remarks, I think, will follow pretty
neatly those of Vlad. If there’s a theme that will tie
together these remarks of mine, aside from the theme
of appreciation for Klemen’s
accomplishment, it’s a theme that comes out
of a very old song– a song about the interplay
of form and substance. As Klemen argues,
constitutional pluralism is, at bottom, not
just a question of institutional architecture. It’s more fundamentally
a question of a moral outlook or
attitude, a question of a substantive
pluralist motivation that would be nipped
from the start into the deepest conscious
layers of a political regime. This moral motivational side
of Klemen’s intervention comes really to the fore
in the closing chapters, bridging this book to the
next one, not yet out– which next book, as Bill
Alford has mentioned– with which next book
I lived for many years as so-called ho-ho supervisor. So take the idea of a
constitutional heterarchy as opposed to hierarchy. That idea hits us
directly as an idea of a political
institutional form. And we easily start
to lose ourselves in fascination over its
possible practical meaning, or even its intelligibility
as such as form. Klemen steps back
and says, well, there must be some
value to motivate our interest in the form. His book– this is the mapping. This is a part of the mapping. His book includes a
surgical expose of answers to that question of
motivation, drawn from leading works in the field. One writer might
locate the attraction of a constitutional
space in which there is no hierarchical closure in
a practice of systematic doubt about human access
to political truth. Heterarchy then figures as
the institutional co-relative to a boundless and thoroughgoing
epistemic normative skepticism. Another writer might couple
heterarchy to a democratic pragmatic conception
of political truth, as consisting strictly in
the outcomes of communicative exchanges from which elements
of coercion– hierarchy– have been excluded. Those both are important
epistemic commitments, and they are, no doubt for those
who hold them, genuine values. Klemen argues,
persuasively to me, that they cannot as such
carry the weight of motivation and justification for a
constitutional pluralist prescription for Europe, and
that’s partly because they cannot even enter
into an ethical space of debate with anyone who denies
them, as, of course, many do. So we try a different move. We can certainly
say, as Klemen does, that the instigating value
for any envisaged European constitutional plan must be
that of legitimate government. That looks like the
ultimate formalism, a proposition that is true
virtually by definition. But if we then add
the proposition that legitimate government
means democratic government, that move will land us
near the more contentious, more substantive
heartland of this book. In Klemen’s hands then,
the leading question becomes the question
of a productive link between the pursuit
of heterarchy in the European
constitutional space and the advancement of
democracy across the world. Klemen pushes us and
leads us and teaches us to think about heterarchical
form and democratic value within one and the
same motivational frame as springing from one and
the same virtuous impulse. That impulse, Klemen argues,
the only one that fits the case, is and has to be an impulse
of respect for others. But it cannot be– and this, for Klemen, is
a central point, developed by him, I might say, in a
truly remarkable colloquy with the philosophy
of John Rawls– it can’t be an impulse
of respect conditioned on recognition of the other as
a potential reciprocator with us in projects of civic
ordering and cooperation. It will have to be
what Klemen calls an intact respect,
a respect that goes unconditionally to
human beings simply as human. This insistence on intact
respect as the germinal value for a substantive constitutional
pluralism, of course, then enters also into the
book’s parallel discourse on democracy. So let’s now turn that way. Klemen offers us a
reduction of democracy to three ultimate
goods, he calls them, so that democracy then
signifies commitment to the widest achievable
distribution of these goods amongst humankind. The first two goods will strike
chords that are familiar. We have first the
good of enjoyment by individuals of
some degree of effect of power over the
conditions of their lives. We have second the good of
recognition and admission as a participant in
all of the organized collective deliberations
affecting those conditions. And Klemen, I’ll add here,
develops a strong case for treating these two goods
of power and participation as two distinguishable
goods that need to be analyzed each in its own right. The third fundamental
good of democracy may ring a little less familiar. It’s what Klemen calls
the good of self-rule. And he doesn’t mean
collective self-rule. He doesn’t mean a
pouvoir constituant. He means self. This good consists in a person’s
deliberate and responsible development within herself of
certain moral propensities, which, of course, would
very prominently include the propensity for
extension to others of intact or
unconditional respect. This third good of democracy
may feel a bit oddly placed. It bears comparison with John
Rawls’ attribution of a higher order good consisting
of fulfillment of a person’s supposed desire– Rawls calls this a
conception dependent desire– supposed desire to be or become
a certain kind of person, the kind who steers her active
life by principles that she sees as the articulation
of a political ideal. Now, I don’t draw that
comparison to Rawls idly. I draw it with a
view to suggesting a more general point
about Klemen’s three fundamental goods of democracy– power, participation, self-rule. These goods might seem
to belong as much or more to a theory of political
liberty or freedom than to a theory
specifically of democracy. To put the point in a
somewhat different way, from the standpoint
of democracy, Klemen’s three fundamental
goods– control, participation, self-rule– might strike many
as leaning more toward the formal
or the procedural than towards the substantive. So I’ve now started to
move towards a question that I want to put to Klemen. To help in setting
the table for that, I thought it might be fun
to draw from a lecture that all three of
us heard delivered just last week at Boston
College by Jurgen Habermas. As a part of his presentation,
Professor Habermas offered a line of
diagnosis of Europe’s current constitutional impasse,
a diagnosis of resistance within many or
most of the states to a full scale
constitution for Europe. Habermas suggested,
in contradiction of some other well-known views,
that what’s standing in the way is not the lack of
a European ethnos. It’s not the lack
of a European demos. Rather we should
look to what Habermas called the insistence of
self-conscious citizens on the normative achievements
of their respective states. The insistence of
self-conscious citizens of states on the
normative achievements of their respective states. And by normative achievements,
Habermas specifically meant democratic
achievements, attainments to the fragile resource,
as he called it, of equitable living conditions. Now, when it comes to the work
of sustaining and extending these democratic
achievements, Habermas suggested, the peoples
each have a kind of autobiographical reason
to place their trust in their respective
nation states ahead of a supranational
formation that will be suspectedly
paternalistic– wonderful word that he used, paternalistic–
in its attitudes towards local political
determinations in the field of social justice. The peoples want
their nation states to remain the guarantors of
their historic achievements in that field. So from this diagnosis
of the causes of impasse, Habermas drew a
connection to a vision for a constitutional
pluralist Europe that would rest on and
reflect a plurality of constituent
powers, among which powers would be the peoples– not, mind you, the
governments– but the peoples of the several states of
Europe, the collectives for whom these democratic
achievements of theirs serve as creditable anchors
of civic identity, connection, and pride. It’s not, however, this
prescriptive extension that I want to go into now. I stick with the diagnostic. And the feature that
I want to highlight is the notion of
democratic that informs Professor Habermas’ category
of historic normative achievements. Those achievements
do, of course, include advances on the
fronts of political forms and procedures, extensions
of the franchise and so on. There are not, however,
limited to that. They quite expressly
also take in, and indeed they might be
understood primarily to take in, the social question. The field of the distributions
of material capability and opportunity, which
some observers might say is just the place, and
maybe the only place, where democracy becomes
in its own right a political value distinct
from liberty or freedom. So that’s my
question for Klemen. Where and how does
social democracy, social justice, the
social question, come in– either to the conception of
democracy’s fundamental goods, or into the motivation and
propulsion of the course toward a European
constitutional heterarchy. So I end with a
question, but I do also want to jam into these remarks
that I regard this book as a superb achievement. It is not what I would
call an easy read, but it is a totally absorbing
read, even an inspiring read, once you get going. And thank you. WILLIAM ALFORD:
Thank you, Frank. Now, Klemen, if you
don’t mind, maybe we’ll take– also I’m sure you have a
lot of hard questions in front of you from our
two commentators– let me take a couple of
questions from the audience and give you an opportunity
to engage as you wish. People are somewhat breathless
after the hard questions from– FRANK MICHELMAN: They
want to hear his answers. WILLIAM ALFORD: OK. So we let Klemen respond
first, if he feels ready to, and then we take some others. KLEMEN JAKLIC: Well,
thank you, both of you. These are some wonderful,
engaging questions. Let me start with you,
Vlad, and try to appear as simple as possible. So constitutional
pluralism, the way I develop it here, the way I try
to clarify that exceptionally complicated terrain,
is by proposing the following simple idea. We have constitutional pluralism
when two peoples actually clash together– two peoples
and their constitutions. So in Europe, for
instance, for a long time, nation state and
nation state peoples have claimed their
own sovereignty over a given territory. For centuries, there has
been a monopoly of power– legal and political power– of the nation state people. We the people are sovereign
on this territory. However, through the development
of European integration, we’ve got a new moment here. We have got a new
source claiming that same self-standing
authority on the same territory that somebody else, the
nation state peoples, claimed it before. So this is the clash of
the peoples actually. I don’t think it is
possible to distinguish constitutional
pluralism as some have tried by describing it as a
clash between institutions only. That goes to your point about
the German Constitutional Court and the European Court. It has to be the peoples. Otherwise, we have
had clashes before. We have had
accommodations before. Nation states have
always accommodated to international law. But that was not the people. That was not a real challenge. What is unique here is
that the nation state peoples and their
constitutions are under unprecedented
challenge by another source– democratic source. Where is this source? Who is this people? It’s the European
people or peoples. Pick your own, both work. How is that? Well, we’ve got this
supranational entity. We’ve got direct votes. We’ve got one person, one vote
for the European Parliament. Parliament is
co-decision-making. It has real power now. So we have established
a direct link with the European
supranational institutions and the people of Europe,
European citizens. So this is something. This is democracy already. This is no longer
international law. We’ve got direct applicability
of European laws. And many, many of
these little details– and some of them were
developed by the courts, as you said, Vlad. Some of them were developed
by the politicians, and some of them were
developed by European judges. That has been described as the
engine of European integration. And there is this claim
to supremacy suddenly. Suddenly they start
claiming supremacy over their own European
domain and supremacy in their own European domain
over the national domain. And so this is the clash
of two democracies. Who is now the right
people in Europe? That’s the real question. That’s the question
of pluralism. Who is the correct people? And so when you have that
kind of a strong challenge, it is a democratic challenge. It’s not just a challenge
between international law and domestic democracy. Then the nation state is
under a serious threat for the first time in history. It has had monopoly. We have had before– in the pan European
movement and these thinkers that went through
conference to a conference– important people, and
they were proposing ideas about this united Europe. And yet the nation
state didn’t care. They didn’t have the factual
power that Europe now has. So this factual pluralism
is important, as well as the normative pluralism, that
it is a democracy, that it is a clash of the peoples. And so when was– was it a pre Maastricht thing? A post Maastricht thing? I do not really know. And from today’s
perspective, it’s not, I think, that important. What is important is that we
do have this clash right now. Maybe you could
argue that before we had the clash of the
peoples, it wasn’t already a pluralism because
there were no two self-standing authorities,
democratic authorities. One was still subordinate,
just as international law and international
institutions are subordinate to a sovereign
democratic state, for a good reason, for
democratic reasons. So then to move on, perhaps, to
the institutional design issue. So the question of this
book towards the end is really placed at the level
of theory, at the level of– I would compare it,
yes, to John Rawls’ approach in terms of the type. He’s also not trying to be too
detailed about certain answers. He’s concerned with the
basic structure of society. What is a legitimate and
just and democratic basis of a constitutional democracy? And so here, the experiment,
the thought experiment that I develop is about
the very foundations. We need to start with
those foundations. And it is these
two, about engaging these two democratic
sources– the European people and the nation state people,
the reasonable among them. It is that they need
to agree about how to argue to one another. Who is to prevail if
anybody is to prevail? And in their engagement, they
agree with some, I would say, unarguable
assumptions of respect between bearers of dignity. Nobody in Europe today would
tell you that this is wrong. Nobody here, I
suppose, in this room would tell you that this
is a wrong proposition. We all are each other’s equal
in terms of human dignity. We all are each other’s equals
in terms of the recipients, the rightful ultimate
recipients of self-rule, which is a democracy. All those three–
effective power, participation, and the
self-ruling virtues are different explications
of the idea of self-rule. It’s not just that the third
one alone is about self-rule. So that’s a little
correction there. So we need to agree, and
these actors need to agree, that they would grant each
other the maximization of this good of
self-rule, of democracy, of these three powers. And so as they agree on
that, they cannot but– I try to show in the book–
that there is no other way. If you agree with equal respect
between the bearers of dignity, that you will develop a
particular institutional design which is unlike the
classical monist state. It doesn’t have
borders, strict borders, from Baltics to
Mediterranean– from sea to shining sea, if you wish. It will be a
supranational, open-ended, internally programmed
towards ongoing enlargement. I even give examples
of territories in Africa, in Oceania,
in Latin America that have euros, and that vote
at the European Parliament, for the European Parliament, and
they have all sorts of other– they are basically
the territories of the European Union. And so I say we should
continue with this enlargement. We should not create a fortress
Europe, a superstate Europe. And a superstate camp would see
that that is indeed the case, once it went through
this argumentation to this particular
device, which I call the germ of substantive
pluralism, which is akin to the original
position but really geared towards the supranational,
the current context of the globalizing reality. And of course, as
they would argue– and this moves me to Professor
Michelman’s question– as they would argue,
also the social would come up as a question. So what about the social? Of course, the social is within
both– the effective power, the first ultimate
end of democracy. You cannot really rule in
your life domain speed, individual domains that
concerns you alone, or the collective domains. I mean both. You cannot really rule
effectively unless you also have certain social rights,
certain social minimum. And that is quite unanimously
agreed in Europe– not so much in this country,
but in Europe it is. And it also comes
into social dimension in the third ultimate
end of democracy, in the self-ruling virtues. So you not only have to rule
over the domains of your life in terms of the
effective power, you need to be effective
in your decision-making and participation, but also
you need to rule over yourself. What does this mean? This refers to the
Kantian notion, Rawls and Kantian notion of
self-rule, of freedom. And yes, I do equate democracy– or at least bring it nearer
to the conception of freedom– because I do not take a
narrow view of democracy, that democracy is just
about the collective stuff and the parliament. It is about our own will to
rule effectively in our lives– be it collective domains
or individual domains. So it’s also about freedom. Democracy means the
rule of an individual. So the second point, it’s
also about participation, which is quite irrespectively
of how effective you will be in the ruling of those domains. The doors need to be open for
you, because that is your life. It’s nobody else’s life. But you cannot do
it in a selfish way. If you’re going to do
it in a selfish way, the whole thing is over. You need to take the
other into account. You need to rule over yourself. And that’s the third part,
the self-ruling virtues. And how the social
would continue to figure out in this debate
is through this device that I develop. The nation states would
say, and quite rightfully so, of course we are not
willing to just leave the European superstate,
the United States of Europe, to take over what
we have achieved so far, the level of the
social that the nation states have achieved. And so they would demand
of the European monist game to provide at least the same
thing at the European scale. But the European
federalists are saying that. Of course we can replicate
the European social model at the European scale. Not only that, we would
be a mightier economy, the completion of
the internal market. It would be much
more effective also, one government, not this many,
many negotiating partners. Banking union, if you want
to be concrete, the euro, the fiscal union, and so on. It will be effective. We could generate that pie
that we would then redistribute for the social purposes. Moreover, we would get rid
of the monist’s deficits that the dispute now create. How come, the nation
state would say? Well, by co-operating
between themselves alone, these nation
state peoples, right? More or less alone
what they create is those who happen
to occupy the more advantageous territory,
the powerful, therefore over time
become even more powerful. And so what you cannot beget
when this monism is allowed, nation state monism is allowed,
you get these powerful centers in the world represented by
rich and powerful states. Whereas on the
other hand, you’ve got very poor and
insignificant states, because they were in a
less advantageous territory and so on. So this is quite–
in a globalizing age, this was OK when we were
isolated from each other. But in a globalizing age
where we have irreversibly encountered each other, we need
to get rid of this deficit. And the European camp would
say, look, we would do that. We would get rid of
these differences because we would establish
a common social distributive scheme in addition to maybe
some national schemes. But this deficit
between the states, people born into
different states, this is then radical deprivation
for some of the basic capacity to rule because of the lack
of the social and so on. So we would do that. And so what a nation state
would say in such a case? And this is maybe the last step. The nation state
proponents will say, oh, this is true, provided
that they were reasonable and that they believed
in equality of dignity. However, you would
create a fortress Europe. You would create a super state. And look at what
happened just last week. 40 people drowned. 40 people drowned trying to
reach the shores of Europe. Six months ago, the
Lampedusa occurred. So the nation state
people say, we are willing to open
our territory to others in this globalized world. However, we are not willing
to do it for the superstate, because this is fortress Europe. How about those others
outside of Europe? So we are willing to open
to a supranational project with ongoing enlargement
to other regions and start the
redistributive scheme there. So that is how the
social gets in. WILLIAM ALFORD:
Thank you, Klemen. I would love myself
to press you more on the limits of the
expansion or denial of the fortress Europe idea and
the implications of generally encompassing other people in
both the social and conceptual. But we’re, alas, already
beyond our anointed hour. So perhaps maybe what we will
do is end the formal session but invite anybody who
wishes to stay more casually to continue the
conversation with Klemen and others who wish to stay. But since we promised people,
the convention and our meeting, to end the formal session. But I think we
should first thank our two commentators and
Klemen for an incredibly stimulating hour. [APPLAUSE] Still coffee and cookies. Anybody who would like to stay
on more casually, please do. Thank you. Thank you for this.


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