Return to Europe: The Constitutional Futures of Existential Revolution

• In Event: Perspectives on the Revolutions of 1989: Hopes, Disappointments, Legacies

Abstract

The revolutions of 1989 have been called restorative, rectifying, or gentle revolutions, offering no new utopian political visions but instead seeking a return to the 'normalcy' of the liberal-Enlightenment achievements of the West after a forced hiatus under the Soviet imperium. This paper argues that this is in part true; 1989 represents a vision of return. But this return imagined a historical dynamic of diversity and solidarity grounded in the ethics of dissent and its critique of ideology. These in turn informed a profound rethinking of political sovereignty internally and the sovereign equality of states externally. This new constitutional vision held open the possibility of reinvigorating European politics and law in the traversal of its return—yet it remains an underutilized reservoir of emancipatory constitutional thought.

This paper aims to articulate the relevance and utility of 1989 revolutionary ideas beyond the immediate context of anti- totalitarian struggle as a critical vision for contemporary law and politics in the project of European post-national integration—a relevance that has surprisingly, and unfortunately, been neglected in favor of an assimilationist approach to Central Europe’s emancipatory potential in the course of the Eastern enlargement process.

In its first part, the paper develops a reading of what made the ‘existential revolutions’ distinct in their critique of the totalitarian or post-totalitarian state and in their vision for institutionalizing a new form of political life. Here, I focus on several key characteristics of dissent: anti-foundationalism; authentic human judgment; the preservation of plurality and creativity in public life; a critique of both technical-bureaucratic legalism and market fundamentalism; and the centrality of a self-limiting civil disobedience.

These together contribute an account of post-national politics, law, and justice that entails an important revaluation of leading accounts of post-national constitutionalism relying on the Habermasian co-originality of popular sovereignty and human rights. Parts II and III further develop dissident philosophy in conversation with Arendtian political thought and contemporary critical theory and demonstrate these salient correctives, which re-center the following two elements in our understanding of public institutions and constitutional law: (1) the existential dimensions of intersubjective judgment and political action, which not only restore the reflexive links between positive legality and democratic legitimation but also conceive commodification as a political-legal problem; and (2) a structural sensitivity to diverse historical trajectories in a pluralistic field of modernity whose development is neither linear nor simplistically teleological.
Each of these elements of 1989 revolutionary thought provides insight into the political, social, and economic crises afflicting the European project thirty years later. Part IV illustrates these insights with applications to contemporary constitutional conflicts in EU law—over supranational economic governance, populist retrenchment and the rule of law, and migration and the right of asylum.

Author

• Paul Linden-Retek, Yale University