Forthcoming in Oscar Garcia Agustin & Christian Ydesen (ed.). 2013. Post-crisis Perspectives. The Common and its Powers. Frankfurt am Main: Peter Lang Verlag.

It is safe to contend that the shattering of old spatial hierarchies and the emergence of new geographies of capitalist development and accumulation figure prominently among the tendencies underlying the global economic crisis (Mezzadra & Neilson 2013a.). New regionalisms and new patterns of multilateralism are taking shape and, although no new world order is clearly discernible, the present disorder already bears the traces of a decline of Western hegemony. No “civilizational” emphasis, of course, behind this statement—but I am convinced that there is a need to take stock of the meaning and relevance of the new global geographies in the making to better understand the specific challenges, risks, and opportunities we are currently confronted with in Europe. A process of “provincialization” of Europe, to put it as in the title of an important book by Dipesh Chakrabarty (2000), is actually underway, but the direction of this process, its political interpretation, is still open. The crisis of sovereign debt, the specific and most visible way in which the global economic crisis hit Europe, has nevertheless created a profoundly new situation in the European Union (EU). A section of the European elite and capital is attempting—indeed quite successfully to date—to exploit the crisis as a chance to “reform” the institutional architecture of the EU, to foster a new compromise between financial capital and export-oriented industry, and to establish new center–periphery relations. The proposal by Hans-Peter Keitel, President of the Federation of German Industry, to turn Greece into a special economic zone is a good reminder of the importance of the last point (see German Industry Leader 2012), while the continuity of “austerity,” with its disruptive social effects, is the general hallmark of the project and the best illustration of its ferocious class nature.

In this essay I highlight some aspects of this new situation in Europe, focusing on the resulting consequences for such important political and legal concepts as citizenship and constitution. It is important to keep in mind that these concepts have been part and parcel of European history and even “identity” for centuries. Their contemporary transformations therefore provide an effective angle on the stakes of the current crisis in Europe. Highlighting the shifting configurations of power within the material constitution of the EU compels us to go beyond any rhetoric of “democratic deficit” and to posit democracy and citizenship themselves as concepts and practices that need to be radically reinvented in Europe. In other words, it leads us to contend that there is a need to imagine a constituent movement and moment in Europe. It is only within such a movement and moment that we can think of a left capable of politically expressing the claims and needs of the composition of contemporary living labor—and at the same time realistically interpret the challenge of the provincialization of Europe as a chance for a new project of freedom and equality.

1. Citizenship, democracy, and constitution

Although French and Dutch voters rejected the Treaty establishing a Constitution for Europe in 2005, bringing to an end the process of its ratification, it is hard to deny that the EU has a constitutional structure and rank. This is not only due to the existence of a Charter of Fundamental Rights, adopted in December 2000 and given full legal effect by the Lisbon Treaty (2007); more generally, the development of an elaborate web of European legal norms and of a sophisticated jurisprudence, combined with the forging of governmental standards and “best practices,” has steadily produced a series of transformations within the very structure of the Constitutions of the Member States. Both the sphere of action of public powers (sovereignty) and the status of citizens, the two main fields of constitutional regulation, have been altered by these developments, which started in the 1960s but acquired a fully new dimension with the signing of the Maastricht Treaty (1992). The Constitutions of the Member States, even the most powerful, have been displaced from the center of the legal and political stage and transformed into “partial orders” (Grimm 2012: 335). This means that they are no longer the supreme legal source for the organization of political power and the rights of citizens. A process of hybridization of law leads to a weakening of the constitutional system, challenging its unity as well as its effectiveness. At the same time, at the European level it is precisely the absence of a constitution in the traditional sense of the word that creates the space for a huge flexibility of “governance” and for the development of multi-level regulations (Chignola & Mezzadra 2008).

There is a need to historicize these complex transformations. The history of constitutionalism and constitutional law in the 20th century in Europe was dominated by a process of constitutionalization of labor. Since the Weimar Constitution, faced with the challenge of the Soviet Revolution, this has always meant at the same time an attempt to constitutionalize class struggle. This attempt marks the transition from the liberal constitution, centered on the individual and market exchanges mediated by the legal institution of contract, to the democratic constitution, which is compelled to acknowledge and articulate the centrality of labor and its subjects. In an essay written in 1964, Antonio Negri (2009) provides an impressive discussion of the specific dynamics, unbalances, and even contradictions that this acknowledgment inscribes onto the constitution. In the framework of the socialization of capital corresponding to mass industrial production, the democratic constitution, on the one hand, represents and “contains” the productive power of labor, while, on the other hand, it expresses and articulates the primacy of capital’s command and planning. The entire dynamics of constitutional checks and balances as well as of political representation in the democratic constitution appears, in Negri’s eyes, subordinated to the development of this contradiction. It was the time of the Welfare state, of “social rights of citizenship” (Marshall 1950), and of what Étienne Balibar (2003: 125–134) calls the “national (and) social state.” Balibar mobilizes a reference to Machiavelli (to the “Machiavellian theorem”) to carve out of his analysis of this particular moment in European constitutional history the existence of a “contentious democracy,” which he posits as “the other side of the national-social state” (2003: 129). This was not, of course, an ideal model but, rather, a political form predicated upon the existence of specific organized subjects (parties as well as unions), institutional channels for industrial conflict and negotiation, political cultures of organization, mobilization, and struggle. It was, above all, inscribed within a specific “container” (the nation state) and rooted within the specific class composition of postwar capitalism in (Western) Europe, which means mass industrial production, or Fordism.

What is commonly described as the acceleration of the pace of European integration in the late 1980s, culminating in the Maastricht Treaty, must be understood against the background of the profound transformations of capitalism in the wake of the uprisings and struggles around 1968, the declaration of the inconvertibility of the US dollar in 1971, and the crisis of 1973. It is in the framework of these transformations—of the new dimension of the processes of financialization of capital and of the neo-liberal turn globally announced by Pinochet, Thatcher, and Reagan—that the constitution of labor and the national-social state entered a deep crisis. This is the moment when what I have described in terms of a hybridization of law reaches a new stage. From this point of view—that is, the point of view of a materialist interpretation of constitutional processes and changes that is a privileged point of entry into any discussion of the present political predicament in Europe—the acceleration of the integration process, and particularly the move toward the Economic and Monetary Union prompted by the establishment of the Delors Committee in 1988, can be interpreted as the opening of a peculiar type of crisis management. The crisis to be managed was (also) the crisis of a specific constitutional form and experience underlying the development of the welfare state rhetorically associated with the “European model”. This crisis management, which stitches together economy and politics (and eventually an economic and political crisis), is the real unifying thread of the constitutional development of the EU in the last two decades. It is not necessary to dismiss as mere ideology the “neo-functionalist” rhetoric surrounding the Maastricht Treaty, according to which the sharing of a single currency would produce a virtuous “spillover”, creating the conditions for further progress in the political unification and eventually for European social policies capable of replicating at the continental level what was no longer sustainable at the national level. Some people may have sincerely believed this. The fact remains that, as Fritz Scharpf (1999: Chapter 2) timely stressed, “negative integration” (to put it shortly, sharing the limits to national social policies and market regulations) was not significantly matched by “positive integration,” in other words, by an effective attempt to build a European welfare system.

Nevertheless, considering the Maastricht Treaty as the opening of a constitutional crisis management event does not mean dismissing the potentialities associated with the new stage of the European integration process. While the institutional left has oscillated between skepticism and uncritical acceptance in front of this process, a series of social movements started, in the 1990s, to develop a quite different attitude. Especially movements connected with the struggles of migrants, the unemployed, and precarious workers, as well as with media activism and the claiming of civil rights, attempted to immediately “seize” the European space, combining a sharp criticism of specific EU policies (e.g., its border regime in the making and its neo-liberal economic constitution) with an option for action, campaigning and networking at the European level, occasionally including the use of European courts and jurisprudence. It was not the option of the majority of social movements and it did not produce spectacular successes, but it was widespread. It began forging a common European language among activists and became particularly visible during the first European social forums held in the early 2000s. In a way, one could say that the attempt was made to struggle within and against the European citizenship in the making. The establishment of a European citizenship appeared to many observers in the 1990s to pave the way for a process of delinking citizenship from the principle of nationality, a process that could potentially weaken the EU’s exclusive nature and become the framework for the expression of new democratic movements in the welfare state crisis. Scholars working in the field of migration played an important role in this conversation (e.g., Hammar 1990; Soysal 1994), while a more general rethinking of the concept of citizenship was prompted by the work of Balibar (1994, 2003) and Engin Isin (2002). To put it shortly, the attempt was made to distinguish the institutional framework of citizenship from its movement, and to shed light on the transformations produced within that very framework through the practices and struggles of subjects often constructed as “excluded,” or differentially included.

This is a concept of citizenship that has allowed the combination, as mentioned above, of even radical criticism of the European integration with an attempt to seize the European space (and at the same time keep the borders of this very space open). I participated in this attempt as both a scholar and an activist, particularly as far as migration is concerned (e.g., Mezzadra and Neilson 2003; Mezzadra 2004, 2008). While I am convinced that the work done around the concept of citizenship still constitutes an important source of inspiration for critical thinking and political action in Europe, I also think that there is a need to test that work against the background of the profound transformations of the very institutional framework of European citizenship in recent years. In a recent article on the European crisis, Balibar (2012a) restates a position he held with remarkable coherence since several years: a Political Europe, outside of which there is indeed only decline and inability for the people of the continent, will only be legitimate, and therefore possible, if it is more democratic than the nations that create it, if it allows them to step beyond their historical conquests in terms of democracy.

The problem that arises here is whether we can imagine this “surplus” of democracy along a line of continuity not only with the national history of democracy in Europe—particularly with the “contentious democracy” of the “national (and) social state”—but also with the evolution of the institutional architecture of the EU. It seems to me that the very constitution of European citizenship can no longer be taken for granted as a political space for the invention of the surplus of democracy mentioned by Balibar. I thus turn to an analysis of recent constitutional transformations and disruptions within the EU. Such an analysis provides a particularly effective angle on the transformations and disruptions of European citizenship itself.

2. Constitutional borderlands

The very concept of constitution has been tested and placed under duress by recent developments within the EU. Take, for instance, the influential discussion of the present state of constitutional law in Europe provided by Dieter Grimm (2012). According to his analysis, the “external success” of constitutionalism in the world after 1989 has been met by a process of “internal erosion” of the effectiveness of the constitution, which can be observed in its clearest form in the European case. What the German jurist emphasizes is the relevance of economic, political, and even legal dynamics that increasingly compel states to “share” their power with “a series of non-state actors,” leading to a situation in which the state has lost “its monopoly of public power.” Grimm is quick to note that this is more than a mere widening of the gap between “norm and reality,” which has always existed without threatening the “potential of constitutionalism.” The new situation that he describes in terms of an “internal erosion of the constitution” challenges the very capacity of the latter to “comprehensively regulate public power in its sphere of validity” (Grimm 2012: 315–316). The concept of deconstitutionalization nicely captures this tendency toward the multiplication of levels and actors of power that escape constitutional regulation while at the same time intervening within fields that have been traditionally defined as being of “constitutional relevance.”

What further interests me in Grimm’s analysis is his discussion of this process of erosion of the constitution in terms of the two “borders” on which the development of modern constitutions and constitutional states has been historically predicated. On the one hand, he refers to political boundaries, which traditionally circumscribed the territory of the state and therefore the “validity of the constitution.” On the other hand, he has in mind the “constitutive” relevance of the border between private and public for the very existence of a constitution (Grimm 2012: 328–331). Both these lines of demarcation appear to be blurred in the present and, once again, this is particularly apparent in the case of the EU. European governance structurally works the boundary between public and private, both as far as the variable geometry of its actors is concerned and as far as the shifting patterns of its governmental “styles” are considered. At the same time, European institutions and law are now internal moments to any “national” space, intensifying a process of multiplication of legal orders that is challenging the unity of the traditional concept of state territory independently of the developments within the EU. One should add that both the process of “enlargement” and the emerging European border regime make the borders of the EU themselves elusive and “open”, that is, quite different from the cartographic representation of political borders as clear-cut lines of demarcation of the “inside” from the “outside” (e.g., Beck and Grande 2007; Mezzadra and Neilson 2013b: Chapter 6).

Grimm’s diagnosis of an internal erosion of the constitution in Europe (and, indeed, beyond Europe) can be fruitfully paralleled with the theory of societal constitutionalism developed over the last two decades by another German jurist, Gunther Teubner. To be sure, Teubner’s combination of the systemic sociology of Niklas Luhmann with insights from theories of legal pluralism is quite different from Grimm’s more traditional view of law, constitution, and state. Teubner does not seem to be particularly concerned by the blurring of borders between public and private or the inside and outside of a state’s territory. Instead, he is engaged in an attempt to further push the process of “de-centering” of the state that has been at the core of many theories of legal pluralism and, in particular, to build upon the criticism of the omnipotence of legislation provided in the early 20th century by Eugen Ehrlich (Teubner 1997). What Teubner has been describing in recent years is the emergence of a “global law” that, contrary to the most influential legal theories of the last century (that can be epitomized by the names of Carl Schmitt and Hans Kelsen), is predicated neither upon a political decision nor on a “basic norm” (Grundnorm). Writing of the emergence of a global economic law, Teubner (1997: 7) contends that it “is a law whose ‘centre’ is created by the ‘peripheries’ and remains dependent on them.” “Fragmentation” is a defining feature of the emerging global legal “regimes,” which are presented by Teubner as results of sector-based processes of legal self-organization that take place outside the traditional (constitutional) framework of the state. The transnational copyright regime, the so-called lex constructionis and its standard contracts on transnational construction projects, the new lex mercatoria and human rights regimes are among the instances discussed by Teubner. According to his analysis, this fragmentation can neither be curbed nor fought, because legal fragmentation is itself “merely an ephemeral reflection of a more fundamental, multi-dimensional fragmentation of global society itself” (Fischer-Lescano & Teubner 2004: 1004). At best, a “weak normative compatibility of the fragments might be achieved. However, this is dependent upon the ability of conflicts law to establish a specific network logic, which can effect a loose coupling of colliding units” (Fischer-Lescano & Teubner 2004: 1004).

Decoupling the concept of constitution from the state, Teubner charts multifarious, fragmentary, and heterogeneous processes of constitutionalization that develop from within regimes corresponding to “partial social systems” defined in “functional” terms. The irreducible and structurally proliferating multiplicity of regimes radically challenges the unitary dimension of the concept of constitution. “Collisions” and “conflicts” among regimes are to be considered the norm rather than the exception according to Teubner’s theory of societal constitutionalism. “Hybrid” arrangements must be deployed to both facilitate the crystallization of constitutional norms and structures within the partial regimes and articulate their collisions. “Constitutional fragments” can only be tactically “coupled” within “networked structures” and often “ad hoc constitutional norms” emerge to supplement existing frameworks at the national, transnational, and global levels in an attempt to limit and regulate the “expansive tendencies” of social systems (Teubner 2012: Chapter 3). From Teubner’s point of view, in any case, multiplicity comes first and his entire theory is built upon this kind of ontological statement, which explains the reasons why post-workerism in general, and Michael Hardt and Antonio Negri in particular, paid great attention to his work and engaged in lively discussion with him (Hardt and Negri 2009: 347–348; Chignola 2012). At the same time there is a need to stress that Teubner’s theoretical framework (particularly his Luhmannian theory of the social) leads him to adopt a view of partial social systems that often overemphasizes the autonomy of “sectors,” obscuring the structural pervasiveness of the logics of capital as a “cross-sector” binding (and indeed disrupting) element.

Whereas Grimm describes an “internal erosion of the constitution” due to powerful dynamics of deconstitutionalization, Teubner maps a proliferation of processes of “constitutionalization” that saturate legal and political spaces across the borders of nation states. Grimm is explicitly skeptical toward such an extensive use of the concept of constitutionalization, which leads, in his opinion, to diluting and eventually losing the historical and theoretical specificity of the constitution (Grimm 2012: 324). At the same time, one could note that the proliferation of partial legal regimes described by Teubner is part and parcel of the factors that converge to produce the erosion of the constitution discussed by Grimm. This means that, insofar as they limit the regulatory effectiveness of the constitution, partial legal regimes have, at least “negatively,” constitutional relevance for Grimm as well.

If one considers the analyses of the two Germans jurists together, what emerges and needs to be emphasized from the point of view of the analysis in this essay is a crisis of the constitution as a unitary system. Be it displaced from the center of the legal and political space by processes of deconstitutionalization (Grimm) or be it included into elusive and fragmentary constitutional networks and assemblages (Teubner), the constitution is undergoing profound transformations that take a peculiar shape in the European case. While national constitutions have been placed under duress and formally and materially transformed by the process of European integration, the Charter of Fundamental Rights and the jurisprudence of European courts actually seem to represent constitutional fragments whose inscription within a unitary framework remains highly problematic. At the same time, the organization of powers within the EU continues to be characterized by structural tensions between the European Commission and the European Council, while the European Central Bank’s autonomy in the management of the single currency establishes and crystallizes a huge power to intervene beyond any constitutional regulation into the very fabric of social relations.

Legal scholars who have worked on the process of European integration from an angle close to Teubner’s theoretical framework have often emphasized the need to prompt a “proceduralization of the category of law” to come to grips with the challenges inherent to these developments. As Christian Joerges (2007: 15–16) writes, “the Europeanisation process should seek flexible, varied solutions to conflicts, rather than striving to perfect an ever more comprehensive body of law,” which means, from a political point of view, instead of striving toward a traditionally federal solution. There is much to learn from such attempts to develop a “conflict-law constitutionalism” for the EU. What seems particularly interesting here, as in Teubner’s case, is precisely the chance to work through the multiplicity of legal institutes and categories connected to the conflict of law viewpoint and to imagine the emergence of a multitude of claims from the composition of contemporary living labor as the material condition for constructing the constituent dimension of a new “law of the common” (Chignola 2012).

Without dismissing the potentialities of this theoretical perspective, there is, however, a need to acknowledge that its emphasis on flexibility and elusiveness make it particularly sensitive to the shift of relations of power, a point that remains under-theorized in the work of legal scholars such as Teubner and Joerges. In the wake of the global economic crisis, the moment of financial command, crystallized in the management of the euro, affirmed not merely its autonomy but also its direct constitutional relevance (Negri 2012). While the so-called Fiscal Compact and European Stability Mechanism (ESM) are the main formal expressions of this moment of command, the continuity and the violence of the austerity programs they dictate show the narrowness of the field that remains open for the kind of negotiations and flexible solutions to conflicts recommended by legal scholars such as Joerges. While in the South the European crisis has taken the shape of a violent disruption of what was left of the achievements of several decades of working class struggles and social movements, coupled with mass unemployment and poverty, what seems to emerge at the EU level is a peculiar form of “executive federalism” (Habermas 2011). A vast centralization and increase in the power of European “executive” institutions goes hand in hand with budget cuts, a re-nationalization of political rhetoric, and a further shift toward the bureaucratic at the expense of democratic criteria of legitimization.

3. More Europe?

As stated above, the development of the European integration process since the late 1980s can also be understood as an attempt (or a series of heterogeneous attempts) to manage the crisis of a specific constitutional form and experience, usually associated with the establishment of the democratic welfare state after World War II. Since the beginning, the “hegemonic project” for the management of this crisis was shaped by the influence of a peculiar historical form of neo-liberalism, that is, that of German Ordoliberalismus (Buckel et al. 2012). One could say that in the wake of the global economic crisis the model of the “social market economy” prompted by this school of economic and political thought has been stripped of any social elements. The stability of prices, the autonomy of the monetary union from any political intervention, rigid budgetary controls over Member States, further liberalization and flexibilization of the economy, and the labor market go hand in hand with the violent opening up of new fields for the accumulation of capital through the dismantling of welfare systems, the pervasiveness of debt, and the privatization of “public goods.” Neo-liberalism has thus taken on a pronouncedly authoritarian shape (Lazzarato 2012). The call for more Europe that circulates among relevant sections of the continental political and economic elite basically does not question the continuity of this crisis management (which also means the continuity of austerity programs) and is widely limited to an invocation of the kind of executive federalism mentioned above. To be sure, within social democratic (and even liberal) parties there is a growing awareness of the need to imagine and implement strategies of “re-regulation,” especially of financial markets (Buckel et al. 2012: 32), but the general economic and policy framework of the European crisis management is only very rarely challenged.

Ernst-Wolfgang Böckenförde, a former German constitutional judge and well-known legal scholar, was among the first to bring into the discussion of the European crisis a reference to the concept of the “state of exception” (Ausnahmezustand). He was also quick to note that the state of exception and the powers to confront it are not regulated in the European treaties. The resulting risk was, in Böckenförde’s (2010) opinion, a transformation of the treaties themselves—that is, the European constitutional foundations—into “soft law” and a huge increase of the arbitrariness and self-referential logics of the European institution in the management of what seemed to him an existential crisis, a crisis of the European project as a whole. The concept of state of exception definitely grasps some important features of the European crisis, particularly the exceptional amount of pain, exploitation, and dispossession it has occasioned among “the oppressed” (to recall Walter Benjamin). But it would be misleading to connect the current state of exception in Europe with a sovereign political decision capable of founding a new order and a new normative system along the lines of Carl Schmitt’s (2006) Political Theology. What has emerged in Europe over the last years is, instead, a web of soft law and governmental standards, best practices, and administrative procedures that channel and articulate the violence of financial capital making its command immediately effective. The dilution and indefinite iteration of the state of exception, and not the decision to terminate it, seems to define the horizon of this form of crisis management.

There is a need to acknowledge that a fundamental transformation occurred within the very institutional framework of the EU in the wake of the global economic crisis. While some scholars speak of an impending transition from the “democratic deficit” to a “democratic default” (Majone 2012: 21) and others denounce a “preemption of democracy” (Scharpf 2011) or the sharpening of the “elitist” and “post-democratic” nature of the EU (Streeck 2012), even from a juridical point of view it is easy to see that the whole project of “integration through law,” the trademark of European integration, has been confronted with its limits and contradictions in recent years (Joerges 2012). The balance between legal supra-nationalism and political bargaining processes classically envisaged, for instance, by Joseph H. H. Weiler (1981), has been destabilized and legal processes have steadily developed an autonomous dynamics, entering into new alliances with European bureaucratic machineries and interest groups. What has consequently emerged is the crystallization of a new assemblage of power capable of dictating standards and norms that increasingly restrict the field of action of any politics. This is true both at the national level and in the European arena, where politics is, paradoxically, increasingly identified with the representation of the very “national interests” that are placed under duress by the new assemblage of power mentioned above. At the same time, as Christian Joerges aptly notes, law itself has become fully political, challenging the very idea of a balance between law and politics that was at the core of the integration through law project. The normative integrity of the latter has thus been undermined. Even before the current crisis started, three judgments of the European Court of Justice in 2007–2008—the Viking, Laval, and Rüffert judgments—set new market-oriented standards and criteria for the regulation of industrial relations and established the clear primacy of market rights over labor rights. Without going into the technical details of these judgments, it is important to emphasize their political relevance. They were “no less and no more than the judicial toppling of the post-war acquis of the common European labor law constitution” (Joerges 2012: 46).

This is, of course, an important point for this essay, since what Joerges calls the post-war acquis of the common European labor law constitution was part and parcel of the constitutional form discussed earlier as characteristic of the national and social state (Balibar 2003) prevailing in Western Europe since the end of World War II. The primacy of market rights over labor rights (or, as some neo-liberal scholars would have it, the reframing of labor rights in terms of market rights) is a pervasive element that shapes not only European jurisprudence but also European institutions as a whole. It is indeed inscribed into the material constitution of the EU, at least since the founding of the European Monetary Union and the Stability Pact, which made a “return to Keynesian policies” very difficult (Joerges & Weimer 2012:20). But the request for a balanced budget in the so-called Fiscal Compact of 2012—which led, for instance, to a kind of “automatic” change (and, indeed, profound alteration) of Article 81 of the Italian Constitution (Mattei 2013: 94)—goes a step further. With the Fiscal Compact and the ESM, the straitjacket of monetary stability, fiscal discipline, and austerity programs was further entrenched and consolidated. As a basic norm of European integration, “the independence of the European Central Bank and its commitment to price stability, which cannot be changed by anybody” (Joerges & Weimer 2012: 25), is the driving force of a process of reshaping and reassembly of the European institutions, governmental agencies, and normative structures. This process seems oriented toward the elimination of any political mediation, not to mention any form of contentious democracy (to quote again Balibar). The Commission indeed received new powers through the ESM, but they are eminently negative ones, to scrutinize national budgets and impose fines on deficit violators (Majone 2012: 20). While national governments represented in the Council continue to cut the European budget and to manage the continuity of austerity programs in both the “rescued” and the “rescuing” countries, we are confronted with a “fundamental transformation of the EU and its core legal principles into a managerial regime of the state of emergency” (Joerges & Weimer 2012: 28).

To define as “negative”, in the sense suggested by Fritz Scharpf several years ago, the powers hold by the Commission does not imply, of course, that they are harmless or ineffective. While the violence of austerity programs is apparent especially in many Southern European countries, it should be clear that the profound transformation of the European institutional framework in the wake of the great economic crisis has both its disruptive and its “constituent” sides. Even beyond the institutional (and constitutional) dimension analyzed so far, what seems to be at stake is a reshuffling of the alchemic composition of European capital, that is, the relations between its constitutive “fractions” and at the same time of the variable geography of European integration. Service, industrial, and knowledge economy, as well as cognitive and financial capitalism, post-Fordism, and disorganized capitalism, to mention a couple of key labels circulating in critical debates over the last two decades to grasp the “novelty” of contemporary capitalism, are all at stake in these processes. In other words, in the framework of the current economic crisis, social disruption, and political turmoil, the very shape of European capitalism in the following decades, its spatial distribution within the continent as well as its position within global capitalism, will be decided. While the European space and its borders have been profoundly destabilized by the uprisings in North Africa and the Middle East since late 2010, a process of rescaling the European space is underway, finding, for instance, expression in the constitution of new regions as governmental units (Bialasiewicz et al. 2013; Smith 2013). Taking together these processes of spatial rescaling and the tensions crisscrossing the crisis and development of capitalism provides us with a particularly effective angle on the current European situation, its potentialities, and its inherent risks.

The transformation of the institutional framework of the EU sketched in this section does not aim at overcoming the crisis. Even independently of the intentions of the actors involved in this transformation and of the interests prompting it, its effects seem to be the opposite. No great solution is in sight to save the day. The indefinite prolongation of the crisis, as argued by Fumagalli and Mezzadra (2010), is not necessarily a catastrophe for capital today. In Europe it is clearly conceived of as a chance to foster the processes of economic, institutional, and spatial reshuffling discussed so far and, at the same time, to “discipline and punish” unruly populations not merely at the Southern edge of the continent. The battle over the future of the euro itself, part of a larger global “currency war”, appears to be used as a kind of blackmail to nurture the continuity of the European crisis management. At the same time, I am convinced that there is a political need to realistically bet on the instability and non-sustainability of this project, or of the multiple, heterogeneous, and fragmentary projects underlying the current hegemonic project in the EU (Buckel et al. 2012). The attack on welfare (both in the narrow and wider senses of the word) is too radical and generalized, incurring too much hopelessness across diverse geographic scales in Europe to be sustainable in the long run. The drastic decline of consensus surrounding austerity policies and the EU itself, widely identified by the threatening diktats of the so-called troika in too many countries, should be a warning but does not seem to be taken seriously by the European elite. This is not to say that social struggles and unrest will spontaneously take political shape and speak the political language we would like them to take and to speak. Just think of the rise of nationalist and fascist forces from Hungary to Greece or of the recent success of the five-star movement at the Italian elections of February 2013. It is really not a time for easy political enthusiasm in Europe, but the fragility of the current EU project is laid bare by recent developments. A call to action becomes necessary.

4. Seize the time

Myriad social conflicts and struggle against austerity have shaped everyday life in the last years in several European countries, involving students, migrants, workers, and the unemployed, a heterogeneous multitude of people stripped of social rights in the fields of housing and pensions, healthcare and education. Spectacular uprisings, for instance, in the United Kingdom and in Italy against university reforms in late 2010 have occasionally lent great visibility to the intensity of rage and refusal, whereas more fragmented but widely spread practices of resistance have been the counterpoint to the development of the crisis and crisis management in Europe. Forms of social and even economic self-organization have sprung up, for instance, in Greece, to confront mass poverty and destitution. The same is true in the case of Spain, where the amazing continuity of the initiative of social movements since the first emergence of the indignados in May 2011 provided the basis for an extraordinary experimentation with new political forms, tools of organization, and patterns of social relations. The list goes on, including the recent mass mobilizations in Portugal and Slovenia. What is striking, however, is the radical gap between the articulation and intensity of struggle and the practice of resistance within and against the crisis and its management in Europe, on the one hand, and their lack of political effectiveness and success, on the other hand. It is precisely this radical gap that constitutes the most striking form of manifestation of the crisis of democracy in contemporary Europe, at both the level of the EU and that of the Member States.

The contentious democracy identified by Balibar as the other side of the national and social state seems to have been severed in Europe from the institutional framework of democracy itself; the dialectics between the “insurrectional” and the “constitutional” dimensions of politics, to put it in terms of another seminal essay by Balibar (1994: 51), appears interrupted. What results from this separation and this interruption is a division that runs through the concepts of democracy and politics, which means an opposition without any mediation between their contentious and insurrectional moments (that persist within social struggles and movements) and their governmental and constitutional moments (crystallized in the EU managerial regime of the state of emergency, to recall Joerges and Weimer [2012], as well as in pro-austerity national governments). There are good reasons to connect this division of the concepts of politics and democracy and their absolutely concrete implications in Europe with the dramatic transformations of capitalism in recent years, particularly with processes of financialization.

In Commonwealth, Hardt and Negri (2009: 290–295) refer to one of Mao Zedong’s most famous slogans—“The one divides into two”—to grasp the novelty of this situation and the intensity of the antagonism between capital’s command and living labor’s claims for autonomy. Far from uncritically celebrating this situation and its undeniable potentialities, I already noted the implicit risks, particularly in Europe. These risks are due not only to the violence and power of capital, but also (briefly put) to the huge heterogeneity of contemporary living labor. There is definitely a need to take stock of the ruptures that characterize the present political constitution in Europe, of the impossibility of imagining a movement of democratization and reappropriation of social wealth in a line of continuity with the contentious democracy of the postwar age or the development of a European citizenship stripped of any social and progressive meaning in the eyes of a wide majority of the European population. A “counter-rupture,” from below and from the left, is urgently needed in Europe. At the same time, we also need to imagine a new and original system of mediations, both within the composition of living labor and at the institutional level, to establish a more favorable power relationship with financial capital and to create the conditions of a totally different crisis management.

One thing is clear: This is not possible at the national level in Europe. I totally agree with Balibar (2012a) on this point: outside of a political Europe “there is indeed only decline and inability for the people of the continent.” Neo-nationalist and “populist” politics, even when vested with “leftist” tones and rhetoric, are often just the reverse side of the neo-liberal crisis management. They are unable to come to grips with the exhaustion of the nation as a spatial unit of reference for economic and social policies, at least in this part of the world, and, above all, they structurally deploy exclusive traits against migrants. Briefly put, they are part of the problem (even though they often contribute to shedding light on it) and not part of the solution. This means that there is an urgent need to reinvent the European space as a site of struggle and political experimentation. While I have already stressed that a counter-rupture is necessary for such a reinvention (and this is what qualifies as constituent in the task we are confronted with), this counter-rupture should not be sustained by such vague political discourses as the claim for a “social Europe” against the “Europe of capital” or by even more ambiguous slogans such as the “Europe of the peoples.” We cannot ignore the huge and decades-long accumulation of power, knowledge, and wealth within the existing European institutional framework. A new political project for a new left in Europe, radical and realistic at the same time, should aim at a reappropriation of this power, knowledge, and wealth. A huge intellectual and political effort needs to be mobilized to concretize this goal and to build around it a left that does not exist in Europe today. Only bits and pieces of the forces of the European left can, indeed, be conceived of as part of this process. Nothing less than a multiplication, intensification, and increasing coordination of social struggles can open up the space within which a new political project can emerge and become the political constitution of a new left.

Speaking of a constituent moment does not necessarily imply the realism or even desirability of a constituent assembly and drafting of a new European constitution in the short run. Instead, it means, first, to emphasize the need of what I have been calling thus far a counter-rupture and to work toward the production of its conditions. A new political discourse must be collectively forged, capable of inscribing within the European space the multifarious claims expressed by contemporary struggles and movements. To do so, a selective reading of the origins of the European integration process and particularly of the federal imagination that emerged from World War II and anti-Fascist resistance, would definitely be a productive move, in the spirit of what Machiavelli calls a return to the principles (Negri 2003). Analogously, the Chart of Fundamental Rights of the EU should be selectively read to carve out those elements that represent in it, as in most charters of rights, the crystallization of the “power of the people,” achievements of past struggles that can form the basis for present and future struggles for freedom and equality (Balibar 2012b: 32). Take, for instance, Article 34 of the European Charter of Rights, which recognizes the need “to ensure a decent existence for all those who lack sufficient resources” and could be claimed as the basis of a European campaign for basic income and against the social consequences of austerity programs (Rodotà 2012: Chapter 9). I am convinced that such a selective reading could nurture a constituent politics in contemporary Europe, made up of a variable geometry and geography of political campaigns animated by the claims of the protagonists of struggles and resistance within and against the current crisis.

Needless to say, this is, however, not enough. On the one hand, this is because contemporary experiences of exploitation and dispossession need to be articulated in a new program of radical transformation. The political campaigns to be constructed in Europe today (first against poverty and for a new welfare, including migrants as well as “autochthonous” populations) should therefore also be instrumental in the definition of key aspects of this program and in the emergence of the coalition of subjects and forces that will make it politically effective. On the other hand, there is a need to work toward the production of a destituent moment, of the counter-rupture, of the interruption of the continuity of the European crisis management without which any constituent politics are hard to imagine. There is no need to think of this destituent moment in terms of a great “event.” It can come about through the accumulation and the spillover effect of several ruptures in a number of countries. Its temporality as well as its spatial coordinates will likely be as heterogeneous and spurious as its nature. What is certain is that social struggles and practices of resistance will play the main role in producing this counter-rupture, if it is to happen in the near future.

In this essay I have tried to shed light on some of the defining features of the present political constitution (and political predicament) in Europe. It seems that addressing the European question should become an urgent priority for intellectual, political, and social forces engaged in the resistance against austerity programs and neo-liberal crisis management. I attempt to schematically sketch three levels of political action and theoretical intervention: the invention of a new political discourse for a new left in Europe, the organization of political campaigns for the definition of a program and construction of a coalition of subjects and forces struggling for radical transformation, and the intensification, multiplication, and coordination of struggles and practices of resistance working toward the production of a counter-rupture. What counts is the overlapping and interlacing of these three levels. I am convinced that the fragility and instability of the hegemonic project provide plenty of opportunities for the construction of a new political project for a new left in Europe. Seize the time, to invoke Bobby Seale’s (1970) history of the Black Panther Party. The time is now.



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