Agostino Carrino, a Neapolitan legal theorist now associated with the University of Naples Frederick II, has published a series of tracts (available in Italian, German, and French) aimed at the European Union and its claims to legitimacy. Particularly in his last two works, Democrazia e governo del futuro (2000) and L’Europa e il futuro delle costituzioni (2002), Carrino contrasts a true European community with the mind-set that the intended European superstate has brought forth,
the chatter of someone in a restaurant in Brussels or of someone who believes himself to be the repository of higher morality than that of the common man [seen in the passion of one of the Italian authors of the Chart of Human Rights derivative from the non-existent supermorality of Italian judges].
Carrino perceives in the E.U. constitution—for which Germans will not even be allowed to vote—and in the preceding Human Rights Act of October 2000 anything but a democratic will. The European Union represents business lobbies, Pecksniff judges concerned with hate speech and dreading the possible end of Third World immigration, entrenched bureaucrats, and the Enlightenment fixation on abstract rights—to which actual people have to be fitted. Viewed from the shrunken interests of self-identified nations, what is happening is this: Supernational economic structures, judges armed with invented rights, and sanctimonious, deracinated administrators are plundering and occupying Europe.
Carrino offers blistering comments on the European Union but may be immune to attacks as a hate criminal because he is obviously a socialist. There are two of his strictures in particular that strike me. One, the flowering of E.U. constitutionalism came during “the breakdown of constitutionalism” (tracollo della costitutuzione), before the economic explosion of the 90’s led to a fixation on political as well as economic globalism. The current triumph in our own country of a neoconservative foreign policy, designed to export American democracy everywhere, has also impeded the breakdown of the trend toward a faith in constitutions creating nations. Carrino is correct to note the obsolescence of what is being tried. The belief that “texts” can give birth to governments is a very old liberal idea but has only worked to the extent that an historic ruling class and a nation that can incorporate a constitution into its collective existence are already in place. Otherwise, we are left with what Carrino, borrowing Carl Schmitt’s term, calls “motorized directives,” with administrators and judges running society by issuing orders. Constitutions may linger in such a situation, but only as window dressing for those extra-constitutional honchos who regulate the lives of “citizens.” Contrary to Jürgen Habermas’s fond wish, a European constitution will not “politicize” or jump-start a European identity. So far, the European project has not even led to a minimal acknowledgement of Europe’s Christian, classical, and Germanic heritages. Constitutions, when they did work, came from jurists who served aristocrats or the bourgeoisie, which replaced the aristocracy as the bearers of the national idea. They were not the creators, but the reflections, of an organic identity.
Two, what the European legal project has done thus far is to wreak havoc on existing political and juridical frameworks. Carrino cites the case of England’s attempt to incorporate the Human Rights Act, and the attached European Convention of the Rights of Man of 1950, into her unwritten constitution. The result has been to subvert millennial political traditions. Parliament is no longer the supreme organ of British law but has its judgments subjected to E.U. courts, which can strike down with a “declaration of incompatibility” what Parliament decides. Moreover, the common law will no longer be able to build entirely on precedents, except to the degree that its decisions are congruent with E.U. directives. Carrino multiplies these examples of E.U. meddlesomeness to show what Europeans may have to put up with if Brussels gets its way. He also scoffs at the modernist notion that informs this new constitutionalism,
the freeing of individuals from tradition, from religious, economic, and social ties and from a community of any kind; this liberation has now been translated into the recognition for every single individual subject of a circle of “rights,” particularly the right to form voluntary associations, in opposition to involuntary associations of a traditional type to which one accedes by birth, which was the historical premise for the successive ascriptions of “duties” and “obligations” deriving from the juridical status of “citizen.”
At this point, I am led to dissent. Just because something is absurd and socially destructive does not mean that people do not or cannot be made to believe it. As my late father-in-law, who witnessed Nazi and Soviet tyrannies in rapid succession and the willingness of some to accommodate themselves to any abomination, used to put it: “The people are a collective fool.” And that includes Americans, as well as our President, in a country that Carrino falsely imagines has turned her back on abstract individualism. He also praises “democracy,” properly understood, which existed in Swiss cantons and in early America but has less and less to do with the Western world today. Here, citizens do not seem notably guided by “duty” and family responsibility. Contrary to his assurance that the European Union will not advance beyond where it has gone and will soon lose importance, it seems that the Eurocrats will do fine, if Europeans do not change. As for Europe, her tracollo may be more certain than that of the scribblers of state-building papers whom Carrino scorns. Right now, the nonreproducing, de-Christianized, and denationalized Europeans and Habermas may be well suited to each other.