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ALJ 1/2015 Authoritarian Liberalism 85
Europe. Governance from above can be justified with regard to the economy. Fixing the economy,
in turn, benefits the European project. The people do not revolt. Supposedly, they are swayed by
the “Idea” of Europe.
More precisely, the liberal face of authoritarian liberalism is most clearly revealed—aside from
the Lochner style jurisprudence on fundamental freedoms106—in the legal twists and turns under-
lying the introduction of fiscal and monetary crisis management. No longer is the law of the Trea-
ty limited to preventing irresponsible fiscal Member State policies and their balance of payment
problems. They have been reread into a framework that can accommodate various strategies of
crisis management. To that end, certain “clarifications” had to be made, in particular by the Euro-
pean Court of Justice,107 in order to cast into new light a Treaty that had not been designed with
crisis management in mind. The necessity thereto arose for the purpose of reinforcing the lend-
ing power of Member States on financial markets. Had the Union done nothing for them, the
interest for their debts would have skyrocketed for at least those states that could not but pump
money into their collapsing banking system. Any default of one Member State would have had
potentially disastrous consequences for the Euro Zone as a whole. The article has referred to
these matters in the introduction.
European crisis management is an example for how action taken under unforeseen adverse
circumstances invites cognitive adaptation. The confrontation with what needs to be done in an
unprecedented situation easily overrides what one would have previously imagined to be norma-
tive constraints on delegation. Such cognitive adaptations occur not least because delegations
are based upon trust. The resulting fait accompli is often trailed by much erudite commentaries
on the part of legal scholars. But commentaries have no power to change the world.
The stretching of powers in order to stabilise the European economy is consistent with the liberal
face of authoritarian liberalism. But what about its authoritarian counterpart? Arguably, one en-
counters the authoritarian face in the overall ethos of integration, in particular, in its often-
recognised absence of a final direction.
According to Voegelin, an authoritarian ruler is in charge of creating institutions, thereby inviting
loyalty to these creations. Eventually, institutions have to elicit customary consent to their exist-
ence. This authoritarian mode of “articulating society” is obviously reminiscent of the “neofunc-
tional” hypothesis according to which sectoral integration gives rise to political integration. The
latter, according to Haas, is the “process whereby political actors in several distinct national set-
tings are persuaded to shift their loyalties, expectations and political activities to a new centre,
whose institutions possess or demand jurisdiction over pre-existing national states.”108 Such a
shift concerns, however, mostly elites, that is, members of the public service and interested per-
sons from the private sector.109 Initially, Europe was to be made without Europeans, indeed, it
106 See my Idealization, De-Politicization and Economic Due Process: System Transition in the European Union in THE
LAW/POLITICS DISTINCTION IN CONTEMPORARY PUBLIC LAW ADJUDICATION 137 (B. Iancu ed., Eleven International Publishing
2009).
107 See, notably, Case C-370/12, Pringle v. Ireland, [2012] ECR I-nyr.
108 See ERNST B. HAAS, THE UNITING OF EUROPE: POLITICAL, SOCIAL, AND ECONOMIC FORCES 1950-1957, 16 (Stanford University
Press, 1958).
109 See Philip Schmitter, Ernst B. Haas and the Legacy of Neofunctionalism, 12 JOURNAL OF EUROPEAN PUBLIC POLICY 255,
260 (2005).
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Buch Austrian Law Journal, Band 1/2015"
Austrian Law Journal
Band 1/2015
- Titel
- Austrian Law Journal
- Band
- 1/2015
- Autor
- Karl-Franzens-Universität Graz
- Herausgeber
- Brigitta Lurger
- Elisabeth Staudegger
- Stefan Storr
- Ort
- Graz
- Datum
- 2015
- Sprache
- deutsch
- Lizenz
- CC BY 4.0
- Abmessungen
- 19.1 x 27.5 cm
- Seiten
- 188
- Schlagwörter
- Recht, Gesetz, Rechtswissenschaft, Jurisprudenz
- Kategorien
- Zeitschriften Austrian Law Journal