The Crisis of Law and the European Crises: From the Social and Democratic Rechtsstaat to the Consolidating State of (Pseudo‐)technocratic Governance
| DOI | http://doi.org/10.1111/jols.12014 |
| Published date | 01 March 2017 |
| Author | Agustín J. Menéndez |
| Date | 01 March 2017 |
JOURNAL OF LAW AND SOCIETY
VOLUME 44, NUMBER 1, MARCH 2017
ISSN: 0263-323X, pp. 56±78
The Crisis of Law and the European Crises: From the Social
and Democratic Rechtsstaat to the Consolidating State of
(Pseudo-)technocratic Governance
Agust|
¨nJ.Mene
¨ndez*
Europe has been badly hit by several overlapping crises. This article
explores how they were triggered by and, in turn, aggravated a struc-
tural crisis of European law. It spells out the concrete implications of
`austerity' in constitutional terms. First, the crises have led to ad hoc
decisions and structural reforms honouring European constitutional
norms in the breach. Secondly, the governance of the crises has
facilitated the radicalization of the ongoing mutation of European
constitutional law, in particular, changes to the structural and sub-
stantive constitutional law which have locked in a constitutional vision
of sorts at odds with the regulatory ideal of the Social and Democratic
Rechtsstaat. Thirdly, the very nature of European law, and in particu-
lar its role as the grammar of democratic law, has been endangered:
European law is in the process of becoming an instrument of
authoritarian governance.
William Roper: So, now you give the Devil the benefit of law!
Sir Thomas More: Yes! What would you do? Cut a great road through the law
to get after the Devil?
William Roper: Yes, I'd cut down every law in England to do that!
Sir Thomas More: Oh? And when the last law was down, and the Devil turned
`round on you, where would you hide, Roper, the laws all being flat? This
country is planted thick with laws, from coast to coast, Man's laws, not God's!
And if you cut them down, and you're just the man to do it, do you really think
you could stand upright in the winds that would blow then? Yes, I'd give the
Devil benefit of law, for my own safety's sake!
Robert Bolt, A Man for all Seasons
56
*Faculty of Law, Univesity of Leo
Ân, Campus de Vegazana, s/n., 24071 Leo
Ân,
Spain; ARENA Centre for European Studies, PO Box 1143, Blindern, 0318
Oslo, Norway
agustin.menendez@unileon.es
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
The various, overlapping, and mutually reinforcing crises that have hit the
European Union since 2007 have accelerated the transformation of the
constitution and organization of power both within European states
individually and at European Union level. The financial crisis was
followed by an economic crisis, and these, in their turn, have resulted in
fiscal crises, which have become as of late intertwined with the refugee
crisis and a `national security' crisis (in the wake of several major terrorist
attacks).
In this article, I focus on the impact that the crises have had on the law,
and argue that we are undergoing a three-fold crisis of European law. First,
the governance of the crises has led to breaches of a number of constitutional
norms, something that has eroded the rule of law in Europe (Section I).
Secondly, the crises have propelled major changes in the substantive and
structural constitutional law of the European Union, thus radicalizing the
mutation of national and supranational constitutional law which was already
under way well before the crises, and, in the process, remoulding the post-
war regulatory ideal of the Social and Democratic Rechtsstaat into the
consolidating state, the institutional counterpart of so-called `austerity'
politics. (Section II). Thirdly, European law has been widely used as a tool of
(pseudo)-technocratic governance, as it has become detached not only from
democratic politics, but from politics in general; this is transforming the kind
of law that European law is (Section III), a phenomenon much facilitated by
a certain narrative and understanding of European law (as analysed by Kaupa
in the previous article).
I. THE GOVERNANCE OF THE CRISES AND THE RULE OF LAW:
AD HOC BREACHES OR SYSTEMATIC SIDE-LINING OF LAW?
The constitutional soundness of quite a number of legal norms and practices
through which the European Union has aimed at containing and overcoming
the crises has been contested. An exhaustive list of the controversial
decisions and reforms would push this article beyond its word limit in just its
first section. Still, a sample of the most relevant points of `friction' between
constitutional standards and the ways in which the crises have been governed
is necessary (and hopefully sufficient) to prove the first thesis of this article,
namely, that the governance of the crises has resulted in the erosion of the
rule of law in Europe. In the remainder of this section, I provide that sample,
focusing first on the governance of the financial crisis and then on the
governance of the fiscal crisis.
1. The governance of the financial crisis
It is well-known that since the late 1970s the financial sector has grown at a
far more rapid pace than the non-financial sector, resulting in the `finan-
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ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
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