Has (Downturn‐)Austerity Really Been ‘Constitutionalized’ in Europe? On the Ideological Dimension of Such a Claim
| DOI | http://doi.org/10.1111/jols.12013 |
| Author | Clemens Kaupa |
| Published date | 01 March 2017 |
| Date | 01 March 2017 |
JOURNAL OF LAW AND SOCIETY
VOLUME 44, NUMBER 1, MARCH 2017
ISSN: 0263-323X, pp. 32±55
Has (Downturn-)Austerity Really Been `Constitutionalized'
in Europe? On the Ideological Dimension of Such a Claim
Clemens Kaupa*
In current debate, it is frequently argued that EU law requires or
facilitates the implementation of `downturn-austerity', that is, spending
cuts, wage deflation, and tax increases during an economic downturn.
More specifically, this `thesis of the constitutionalization of downturn-
austerity in Europe' has two dimensions: a (narrow) normative and a
(broader) causal one. The former holds that downturn-austerity is a
legal obligation under EU law; the latter assumes that the European
constitutional framework effects downturn-austerity without neces-
sarily claiming a legal obligation. I will argue that the former is
incorrect, and yet shapes the hegemonic understanding of EU law. I
will maintain that the normative constitutionalization thesis should be
understood as an ideological communication, which aims to cloak the
significant distributive effects of the crisis measures with an unwar-
ranted aura of legal necessity, political coherence, and academic
legitimacy.
INTRODUCTION
In current debate, it is not uncommon to read that the European Treaties
require or facilitate the implementation of spending cuts, wage deflation, and
tax increases during an economic downturn, measures which are commonly
termed `austerity' policies. For reasons explained later, I will describe these
policies as `downturn-austerity' and distinguish them from `upturn-austerity'
(spending cuts and tax increases during an upturn). As the European Treaties
are frequently conceptualized as `constitutional' law, this assumption can be
described as the thesis of the `constitutionalization of downturn-austerity' in
the EU.
32
*VU University Amsterdam, Faculty of Law, De Boelelaan 1105, 1081 HV
Amsterdam, The Netherlands
c.kaupa@vu.nl
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
In this text, I will distinguish between a (narrow) legal and a (broader)
social-science dimension of this constitutionalization thesis: the former
implies a normative claim, namely, that European primary law prescribes the
implementation of downturn-austerity policies. The latter is a causal claim,
holding that the legal and institutional setup of the EU facilitates or
contributes to downturn-austerity-oriented outcomes in some form. Drawing
this distinction is important, as otherwise the hegemonic interpretation of
law might be mistaken for the law as such. This could lead to the unwar-
ranted conclusion that the Union's current downturn-austerity enforcing
practice would indicate that this practice is also legally required. However,
this is not the case: it will be argued that the constitutionalization thesis in its
normative dimension is incorrect. European law does not in fact prescribe
downturn-austerity; it is simply too open or underdetermined, and thus
cannot be interpreted as requiring the implementation of downturn-austerity,
or as precluding the implementation of alternative socio-economic pro-
grammes. This claim as to the `pluralist character' of the European economic
constitution has been extensively developed elsewhere, but will briefly be
reiterated here and illustrated with a few examples.
1
From a more practical
perspective, it is in fact quite obvious that the crisis measures enacted since
2008 ± which range from the bank and industry rescues to the uncon-
ventional central bank measures ± hardly conform to any coherent under-
standing of downturn-austerity as a socio-economic programme.
2
This
further undermines the normative constitutionalization thesis.
In the light of the incorrect nature of the normative constitutionalization
thesis and the conflicting practice just described, its causal dimension
requires renewed scrutiny as well. It will be suggested that the causal
constitutionaliza tion thesis should be sha rpened as holding tha t the
European legal and institutional framework causes or facilitates downturn-
austerity- oriented policies, despite the fact that it does not prescribe them
in a (narrow) legal sense. This formulation emphasizes the tension between
the pluralist character of European law on the one hand, and the Union's
current political practice on the other, and seeks to avoid the potential
misconception of European law as defined by the current political practice
sketched above.
3
This, in turn, suggests a new look at the normative
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1 C. Kaupa, The Pluralist Character of the European Economic Constitution (2016).
2 See A. MeneÂndez, `The Existential Crisis of the European Union' (2013) 14 German
Law J. 453, as well as MeneÂndez's contribution in this volume.
3 The existing `tensions' or `contradictions' within the European constitutional
framework are emphasized by many of the authors cited in this article. Some of
them suggest, as I do, that these contradictions may allow a renewed understanding of
European law as a potential resource for resistance against downturn-austerity: see,
for example, G. Anderson, `Beyond ``Constitutionalism Beyond the State'''(2012) 39
J. of Law and Society 359, at 375±6; S. Gill and C. Cutler, `New constitutionalism and
world order: general introduction' in New Constitutionalism and World Order, eds. S.
Gill and C. Cutler (2014) 9.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
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