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Austrian Law Journal, Volume 1/2015
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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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Austrian Law Journal Volume 1/2015
Title
Austrian Law Journal
Volume
1/2015
Author
Karl-Franzens-Universität Graz
Editor
Brigitta Lurger
Elisabeth Staudegger
Stefan Storr
Location
Graz
Date
2015
Language
German
License
CC BY 4.0
Size
19.1 x 27.5 cm
Pages
188
Keywords
Recht, Gesetz, Rechtswissenschaft, Jurisprudenz
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