Page - 73 - in Austrian Law Journal, Volume 1/2015

ALJ 1/2015 Authoritarian Liberalism 73 III. Staying the course Interestingly, legal scholarship, even though often depressingly brilliant in identifying legal prob- lems in complex settings, has recently become more cautious and muted and when it comes to conceptualizing the consequences of these developments. This is to be regretted, not least be- cause European Union scholarship has always been at its best when it linked the identification of new developments with bold speculations concerning what these developments reveal of the nature of the Union. Indeed, European Union legal scholarship would not be the wonderful genre that it is if it did not invite various efforts to explore the elusive essence of the beast.54 In this vein — and light of the observations concerning the demise of parliamentary control over budgetary planning — the article suggests that the current situation is strangely reminiscent of what Hermann Heller described in 1932/33 as “authoritarian liberalism”.55 Heller’s original observa- tion concerned a certain program designed to rebuild Germany from economic and political col- lapse. In his view it deserved this appellation because it promised (1) to introduce a “strong state”, unyielding to the demands made by labour56 (2) to solve the economic crisis in a manner that restores entrepreneurship and (3) to be informed by expertise and thus to rescue the exer- cise of public power from the vagaries of “politics”.57 Having used the designator “authoritarian liberalism” recklessly before,58 the author now takes it upon himself to move beyond polemical exploits. Of course, the fact needs to be addressed that “authoritarian liberalism” on its surface does not look authoritarian at all. European economic and monetary crisis management has not yet resorted to banning political parties or relied on marauding black shirts, aggressive storm troopers, the removal of unwanted people or the shut- down of constitutional courts. The powers that be also do not make it a point to symbolise unity 54 Honestly, it would otherwise be roughly as exciting as international trade law. 55 See HERMANN HELLER, AUTORITÄRER LIBERALISMUS? (1933), reprinted in GESAMMELTE SCHRIFTEN, VOL 2. 643–653 (A.W. Sijthoff 1971). 56 From a historical perspective, at any rate, a more fascinating story can be told about the economists who will come to be known as “ordoliberals” (Eucken, Rüstow, Röpke) or as active supporters of the “social market econ- omy” (Müller-Armack). They were thrilled about the “strong state”, for it promised to restore the authority of the state vis-à-vis social forces. Quite remarkably, some (Röpke) believed that the strong state could only take hold if it was supported by an activating “myth”. See DIETER HASELBACH, AUTORITÄRER LIBERALISMUS UND SOZIALE MARKTWIRTSCHAFT: GESELLSCHAFT UND POLITIK IM ORDOLIBERALISMUS 40, 60 et seq. (Nomos, 1991). On the ordoliberals and European integration, see DAVID J. GERBER, LAW AND COMPETITION IN TWENTIETH CENTURY EUROPE: PROTECTING PRO- METHEUS 334 (Oxford University Press, 1998). 57 Heller’s phenomenology of “authoritarian liberalism” is straightforward and simple. The core principle is that of authority instead of majority (Heller, note 55 at 645). Yet, the authoritarian support of economic liberalism was not at all about some quasi-religious redemption (646) to be precipitated by some fascist duce or Führer. Rather, authoritarian liberalism casts itself as a matter of rational insight into economic necessity. It bases itself not on li- bidinous identification with the leader but on syllogisms and inferences saying that there is no alternative to the depoliticization of the economy and cut-downs on social programs (652-653). Authoritarian liberalism purports to be based on knowledge. It is, put in currently fashionable vocabulary, the extension of the “knowledge-based” economy to the sphere of politics. The market is taken to be the ultimate template of social improvement. Heller cites Papen as saying that work is the happiness of a people (652). The authoritarian liberal state withdraws from economic production and distribution (652). It favours austerity without, however, reducing subsidies for large banks and large industries (652). It thereby indirectly supports inequality. Such a program, Heller contends, can be sustained only against the will of the people, “for the German people would not long tolerate this neoliberal state in democratic forms” (653). 58 See, for example, Engineering Equality: An Essay on European Anti-Discrimination Law, at 45 (Oxford University Press, 2011). Others have used it not recklessly at all. See Lukas Oberndorfer, Die Renaissance des autoritären Lib- eralismus? Carl Schmitt und der deutsche Neoliberalismus vor dem Hintergrund des Eintritts der “Massen” in die eu- ropäische Politik, 42 PROKLA, 2012, at 413; Michael A. Wilkinson, The Spectre of Authoritarian Liberalism: Reflections on the Constitutional Crisis of the European Union, 14 GERMAN LAW JOURNAL 527, 547–440 (2013).