18 Signe Rehling Larsen
German Basic Law ‘abandons a self-serving and self-glorifying concept of sovereign statehood and returns to a view of the state authority of the individual state which regards sovereignty as “freedom that is organised by international law and committed to it”’.[1]
Within this new vision of European public law, the internal aspects of state sovereignty, above all else popular sovereignty, were seen as something dangerous, which, if not properly constrained, would lead to the destruction of the European constitutional regimes and possibly a new European civil war. The post-World War II European constitutional imagination was founded on a fundamental ‘fear of the people’.[2] Legal and political stability in the form of ‘moderate government’ could only be achieved if the will of the people was constrained. At the pinnacle of the post-World War II European public law order is human dignity; not popular sovereignty.[3] This signifies a shift from constituent power to constitutional rights.[4]
Within the new European public law order, the most lethal and dangerous enemy was understood to be internal to the old world of Droit Public de l’Europe, namely unconstrained sovereign power that allowed for the rise of a destructive and unbounded, ‘totalitarian’ order.[5] In response to this internal threat to the stability of the European public law order, the new vision for constitutional government aimed to entrench a set of constitutional values against ‘ordinary politics’.[6] The new European public law order was meant to insulate certain aspects of political decision-making from ordinary politics in the hope that this would prevent the rise of totalitarianism.[7]
Constitutional courts were given a new prominent role as guardians of ‘constitutional values’.[8] Other independent institutions and agencies, however, were also granted new powers in the hope that they could ensure stable and moderate government.[9] In West Germany, for example, the central bank took on a powerful new role as the guardian of monetary stability. The government of money could not be left in the hands of elected politicians because this threatened to create hyperinflation, which again would lead to the erosion of the ethical foundations of society.[10] In the new European public law order, the most important aspects of political life were no longer understood as being within the scope of what could legitimately be decided by the people or their representatives. They rather had to be entrenched constitutionally and monitored and defended by independent institutions such as constitutional courts, central banks and competition authorities.[11]
- ↑ BVerfG, case 2 BvE 2/08 et al, judgement of 30 June 2009, BVerfGE 123, 267, 346, para 223 (Lisbon Judgement).
- ↑ Christoph Möllers, ‘“We Are (Afraid of) the People”: Constituent Power in German Constitutionalism’ in Martin Loughlin and Neil Walker (eds), The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford University Press 2008); Jan-Werner Müller, Contesting Democracy: Political Ideas in Twentieth-Century Europe (Yale University Press 2011).
- ↑ Alexander Somek, The Cosmopolitan Constitution (Oxford University Press 2014).
- ↑ Somek and Wilkinson, ‘Unpopular Sovereignty?’.
- ↑ For the most influential account of totalitarianism, see Arendt, The Origins of Totalitarianism. See also Carl J Friedrich, Totalitarianism (Harvard University Press 1954).
- ↑ Möllers, “We Are (Afraid of) the People’. For an introduction to the Italian Constitution as a post-fascist constitution ‘born from resistance’ and ‘forged to reject totalitarian experiences’, see Giuseppe Martinico, Barbara Guastaferro and Oreste Pollicino, ‘The Constitution of Italy: Axiological Continuity Between the Domestic and International Levels of Governance?’ in Anneli Albi and Samo Bardutzky (eds), National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law (Springer Open 2019).
- ↑ Somek, The Cosmopolitan Constitution ch 2, describes this project as ‘constitutionalism 2.0’.
- ↑ For an account of rise of the idea of the constitution as an order of values, see Martin Loughlin, ‘The Silences of Constitutions’ 16 (2018) International Journal of Constitutional Law 922.
- ↑ Pierre Rosanvallon, Democratic Legitimacy: Impartiality, Reflexivity, Proximity (Arthur Goldhammer tr) (Princeton University Press 2011).
- ↑ Hjalte Lokdam, ‘Banking on Sovereignty: The Political Theory of Central Bank Independence and the European Central Bank’ (PhD, London School of Economics and Political Science 2020).
- ↑ For a discussion, see David J Gerber, ‘Constitutionalizing the Economy: German Neo-Liberalism, Competition Law and the “New” Europe’ 42 (1994) The American Journal of Comparative Law 25.
