1. The gambit

Von Bogdandy’s article ‘On the Meaning and Promise of European Society’Footnote ¹ introduces a great idea. It is so dazzling, indeed, that the author is green with envy for not having divined it himself.Footnote ²

Article 2 TEU delineates the nature of the Union. It seems to do so in passing, incidentally, and as if referring to some commonplace. The Article states that six values (human dignity, freedom, democracy, equality, the rule of law and respect for human rights) are common to the Member States in a ‘society’ in which another six principles (pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men) ‘prevail’. The provision suggests, thus, that once the first six values are effectively shared by the Member States, then, owing to such demonstrated commitment, the latter principles will be realised, too. On its face, the second sentence of Article 2 seems to invoke ‘society’ merely as a medium in which certain ideas of human ordering are supposed to leave their mark. On a first reading, therefore, Article 2 TEU does not at all seem to claim what von Bogdandy takes it to claim, namely, that Europe, as united by the Union, essentially is a society as opposed to, say, a corporation, a family, a state, an association or – recall Augustine? – a robber band;Footnote ³ nevertheless, he asserts that Article 2 characterises Europe as a ‘society’.

In one fell swoop, he thereby moves beyond an old impasse. For a long period of time,Footnote ⁴ characterisations of the Union have reposed in the Union’s indeterminate nature of being ‘more’ than a mere international organisation and ‘less’ than a federal state. Many of us took intellectual comfort from the vast infinity ensuing from these two negatives. We could at least name two things the Union was not amid a sea of unbounded blank space.

The point of the intervention appears to be also to say that ‘society’ is the seedbed, the larger setting and the yield of the doings of the institutions of the European Union. This is the other remarkable aspect of von Bogdandy’s move. He redirects our attention from the Union to the context from which it emerges and which it, in turn, shapes. Exploring the nature of the Union is apparently the wrong question to ask. It is no small achievement to have at least hinted at the misguided nature of our earlier quest.

The European society, von Bogdandy contends, is one and not many, yet essentially heterogenous, and clustered around the six foundational values, which, in addition to the resulting other six principles, lend unity to its normative orientation. The presence and relevance of these values nurtures some conflicts. These are no longer fought out – at least no longer exclusively – along national lines, but rather between and among contending social and political groups. Conflicts are a valuable integral component of European society and not to be dreaded as portents of collapse, at least as long as one can be reasonably confident that they can be settled by means of compromise. The European society is different from a state in that it does not wield powers of coercion. It is manifest more in the interactions among its members than in institutions wielding public authority. It is amenable to heterogeneity and capable of its accommodation.Footnote ⁵

In many respects, von Bogdandy’s article betrays the freshness of the idea, which is not by accident stated more in the style of a research agenda than of a full-blown account of the subject matter. In many ways, the text, in lieu of elaborating certain intuitions or attempting to underpin the adopted interpretative perspective, sets out, and at best only tentatively elaborates, a number of theses and claims. This makes it, as regards its style of exposition, more akin to writings by Nietzsche or the late Wittgenstein than to a state-of-the-art academic research paper. With the idea still being in the process of gestation, it should not surprise us that the author occasionally has not yet quite figured out where to go with it. In contrast to a ‘community’, one learns,Footnote ⁶ a society is a mere web of transactions and not held together by a commitment to common values. And yet we also learn that European society is founded on the values of democratic constitutionalism. In a like manner, he admonishes readers to drop all expectations of European society boasting something as old-fashioned and treacherous as a collective ‘identity’ (‘we-ness’). But doesn’t the shared commitment to the values already express what ‘we’ stand for? The matter that is raucously endorsed by von Bogdandy when addressing our stance towards the enemy – Russia, that is. And yet again, one must be puzzled to read that European society is not represented by any actors. This is the point at which Hayek and Thatcher devour Hegel and leave readers clueless as to who the CJEU and the Commission represent when they go after Poland or Hungary or what the Council does when it imposes sanctions on the enemy nation. Aren’t they doing this on behalf of European society?

With that I would like to turn to what one must find most remarkable about this whole enterprise, namely, its avowed Hegelianism.Footnote ⁷ The idea of Europe as a society conjures up – not least because the author professes Hegelianism – Hegel’s concept of ‘civil society’.Footnote ⁸ This is the point, however, at which the paper deliberately and intentionally disappoints. No, von Bogdandy claims, the ‘European society’ is not tantamount to Hegel’s ‘civil society’. On the contrary, it is at one point even alleged to be the equivalent of Hegel’s state,Footnote ⁹ though under the postmodern condition in which sovereignty has long been retired.

Even if a Hegelian’s renunciation of Hegel is quite dashing, the deliberate choice to disappoint is itself somewhat disappointing, considering what a Hegelian theory of the European Union could have amounted to. The following remarks seek to explain the magnitude of the opportunity that has been missed here.

2. The defence

What is the place of civil society in Hegel’s thought? I think one does not go wrong in summarising this social sphere under the name of ‘the economy’.Footnote ¹⁰

Hegel’s philosophy of law is in large part a theory of institutions and therefore addressing the social practice of moral ideas. This practice comprises the part of the philosophy of law dealing with ‘ethical life’,Footnote ¹¹ marking the point at which the legal relations among persons and their moral presupposition no longer reside at the abstract level of mere normative ideas. Rather, they are articulated in densely structured historical practices.Footnote ¹² Ethical life comprises three spheres: the family, civil society and the state. Whereas the family is animated by the mutual benevolence that springs from loving emotions, civil society comprises the cold world of self-interested economic dealings among persons that remain strangers to one another.Footnote ¹³ The state is the institutional stetting necessary to overcome the conflicts and divisions ravaging civil society. When it comes to this, it is also the sphere in which we collectively and self-consciously realise universal ideas.Footnote ¹⁴

The possibly most remarkable feature of civil society identified by Hegel concerns how it reconciles individual partiality – the egoistic pursuit of one’s own interest – with the good of all. In fact, all spheres of ethical life reach such a reconciliation, albeit in different forms. Whereas on the level of the family, the affection for others results in making their well-being one’s own concern,Footnote ¹⁵ and whereas corporate bodies, thereby anticipating the state, mediate the pursuit of professional interests with the pursuit of the common good,Footnote ¹⁶ civil society is the intermediary sphere in which the reconciliation characteristic of ethical life is ‘lost in its extremes’.Footnote ¹⁷

This means that, from the perspective of the individual agent, the pursuit of economic self-interest is entirely dissociated from taking into account the interest of all others. At the same time, the conditions under which individuals have to engage in their egocentric pursuit requires them to adapt to the demands of other market participants. By virtue of their adaptive behavior they indirectly serve the interests of others. The latter is not in least intended by them. They merely need to take it for granted that they can only have what others offer if they themselves offer what others want. If within a structure of decentralised transactions all exchanges work smoothly, things and services end up at their most desired uses. And this is good for all. Individuals realise the general interest in availing themselves of personal opportunities: ‘In furthering my end, I further the universal, and this in turn furthers my end’.Footnote ¹⁸ The impartial concern for others is thus realized unintentionally owing to the background structure of interactions. The general and the particular are not internally reconciled – that is, from within the intentions of the agents – but merely by external correlations. Owing to the external nature of the relation, ethical life is lost in the diverging extremes of, on the one hand, self-interested pursuits and, on the other, a structure of contractual interactions that – yes, indeed, with an invisible handFootnote ¹⁹ – procures the good of all.

Nonetheless, even in this form, ethical life reconciles partial and impartial concern. Most perceptively, Hegel observes that, after having been first socialised within the family by our parents, we next become ‘children’ of civil society.Footnote ²⁰ This is the case because in preparation for adult life we need to develop skills and capabilities enabling us to earn our living by means of market transactions. Who we become in preparation of economic dealings explains why we, as ‘individuals’, bear the imprint of the generally shared relations of production and exchange. If things go well, we succeed at learning a profession or trade or may even start our own business. In whatever we do, however, we are, owing to the parentage of civil society, mere tokens of more general types. One is a ‘lawyer’ or an ‘accountant’ or a ‘salesperson’. In understanding that we belong to these general types and share with them a situation, we overcome the extremely dissociated form of ethical life as soon as we collaborate with those who are like us. Hegel refers to the settings in which this occurs as ‘corporations’. Within them, a bit of that familial warmth is returned to us which is absent in the callous sphere of ‘deals’. The corporation marks the second step of ethical life.Footnote ²¹ It is the secondary family of those who have become sons and daughters of civil society by virtue of having been trained into practicing certain trades or professions. Corporations treat the well-being and livelihood of its members as a common concern and protect them against risks. An impartial perspective is thereby reintegrated into the intentions of self-concerned agents who no longer single-mindedly observe the demands of their own good but aim at the good of their group as a whole.

We shall return to this important point about bounded solidarity below.

3. European civil society

Not by accident, Hegel’s civil society is a legal community, for it could not function were it not for law enforcement.Footnote ²² Hegel, however, had not yet been witness to the evolution of modern competition law. But it is, again, no accident, that market-liberal political theorists supported competition authorities so that the ‘external’ market-style impartiality can be realised behind the back of self-interested individuals.Footnote ²³

With a legal system in charge of enforcing laws and with a central competition authority we already have the European Community as envisaged by its founders and immortalised by Walter Hallstein.Footnote ²⁴ The European society is just the legally circumscribed economy spilling across national bounds. It is transnational civil society without a state,Footnote ²⁵ which is – transposing Hegel’s ideas to a modern setting – particularly salient in the absence of a meaningful party system.Footnote ²⁶

Hegelian civil society also gives birth to what Hegel calls the ‘state of necessity and of the understanding’, which is the type of state monitoring and regulating activities in order to sustain public safety and to address the risks that civil society either notoriously or unexpectedly gives rise to. Since the risks involved in modern capitalist economy are, as we have known since Ulrich Beck’s classical study,Footnote ²⁷ variegated and manifold, the emerging regulatory state grows to quite sizeable proportions. As a state of necessity, the Union is the regulatory or administrative state of the European society. Giandomenico MajoneFootnote ²⁸ and Peter LindsethFootnote ²⁹ have said many perceptive things about the Union from precisely this angle.

This indicates how fruitfully the Hegelian imaginary can be put to work to elucidate the nature of the Union. It is, however, also apt to address the major political concern addressed in von Bogdandy’s work.Footnote ³⁰ It concerns sustaining the joint commitment to European values vis-à-vis and against backsliding Member States.

Aside from providing templates for fleeting interactions with others and for instrumental forms of association, civil society is the place in which its members experience or at least dread existential aloneness.Footnote ³¹ In a market economy, people are left to their own devices. In the case of the EU, trade unions had to learn the hard way that their rights of collective action are subject to serious curtailment based on the proportionality principle.Footnote ³² European employment policy has for a long time been committed to creating flexible, adaptable and self-activating members of the work force (‘flexicurity’Footnote ³³). Borrowing Foucault’s dismal noun, the ‘governmentality’Footnote ³⁴ of the Union has long been decidedly neo-liberal in its orientation.Footnote ³⁵ It is ‘individualistic’ all the way down.Footnote ³⁶ The cold world created by the market lacks compensation by the guild-like protective embrace of corporations sheltering their members against the harsher consequences of competition. The people have no longer strong secondary families to turn to within a competitive European society.

Against this background, it happens that the Union, which according to some ingenuous apologists has been designed to toll the death knell of the nationalist scourge,Footnote ³⁷ nurtures indirectly the recrudescence of national solidarity. The cold sphere of transnational civil society invariably elicits the longing for an ersatz family writ large. It is a longing for a community that sustains you no matter how imprudent you may have behaved and that comes to the rescue if you have failed in the unforgiving world of economic transactions. In European history, this community is epitomised by the nation state qua ultimate substitute family (as is arguably Hegel’s state, too).Footnote ³⁸

The longing for the substitute family becomes particularly pronounced in the face of the fact that society is also the place where great wealth exists alongside destitution and poverty. Civil society’s default template of justice is private law. If private transactions give rise to unequal distributions it cannot be objected that these are ‘unjust’ unless they were brought about by means of deception or coercion.Footnote ³⁹ The wealthy are entitled to their elevated position. They deserve it. This is how the idiom of justice is used in civil society. Yet, it may sound hollow in the ears of those who have also tried hard and received the raw end of the deal. As inequalities widen and the middle class begins to shrink,Footnote ⁴⁰ the anxiety increases among ordinary people about their impending economic and social downfall. If mainstream parties remain unresponsive to their concerns simply because they have no clue as to how to address it, these ordinary people feel no longer represented by centrist political parties and may decide to vote for populist avengers.Footnote ⁴¹ They do so out of fear of falling behind or, alternatively, out of resentment that not even their hard-earned superb credentials secure them a job.Footnote ⁴²

Hegel was perfectly aware that civil society is simultaneously too rich and too poor to feed the poor.Footnote ⁴³ The increase of wealth requires accepting poverty as a side-effect of the reallocation of resources and productive capacities. Some jobs become obsolete. Some business cannot keep up with competitive pressures. Certain skills are no longer in demand. A prosperous society needs to invest into growth and should not squander its capital on those hanging out on the loser’s street.

4. The malaise

How magnificent would it have been, against this background, to take the challenge head on and to reconstruct the contemporary European ‘society’ in, indeed, Hegelian terms. As a social sphere (a sphere of ‘moral life’), this society is a sphere of unreconciled and recurring conflict.

Hegel’s occasional remarks on the ‘rabble’,Footnote ⁴⁴ which have recently been rescued from oblivion and forcefully expanded by Frank Ruda,Footnote ⁴⁵ address precisely this internal contradiction. Hegel’s poor rabble lives off handouts. Its members are incapable of earning a living and have even lost an interest in doing so.Footnote ⁴⁶ Being in a state of destitution is, however, not what is decisive about them. The rabble constitutes itself by adopting an attitude towards civil society as a whole.Footnote ⁴⁷ Hegel calls the attitude ‘indignation’Footnote ⁴⁸ or ‘outrage’ (Empörung).Footnote ⁴⁹ It is manifest in the rabble’s negating of one of the most fundamental attitudes prevalent in civil society, namely that, fortunate family background aside, one ought to work for a living. As a substitute, as it were, members of the rabble develop the expectation to be unconditionally and fully supported by the state.Footnote ⁵⁰

The expectation to work and consequently to participate in the affluence of civil society is, however, already woven into its normative fabric. Unless we happen to be endowed by birth with wealth, we must earn our living. At the same time, we may reasonably expect to have our share of society’s wealth and even to receive, if need be, some temporary ‘relief’. The ethos of civil society embraces both the expectation of self-exertion and the promise of being showered with rewards reflecting the abundance of goods that social cooperation generates.

The rejection of the first expectation and the exaggerated affirmation of the second, which are constitutive of the ‘rabbelious’ attitude, have to be viewed in juxtaposition. What is more, it can be seen that this attitude is not only to be found among ‘the poor’. If people live under the impression that there is nothing they can do to improve their lot they will slowly abdicate allegiance with the normative principles of civil society, of which the expectation to work for a living is only one of the most foremost. Popular disappointment can give rise to a more general attitude of defiance and affect other precepts, such as rules of decorum and civility. If the fear of economic downfall is not abated and persists, members of society avail themselves of means to shock and offend the mainstream of society as if the offensive use of freedom of expression were a suitable substitute for social entitlements they cannot claim. This may explain why some supporters of right-wing ‘populist movements utter racial slurs with elation, demean Muslims and debase people with queer sexual identities or orientations. They may not even harbour racist views or endorse heterosexist norms. The point of such behavior is to irritate those that adhere – not least by taking, occasionally, the moral high ground – to established standards of courtesy. Provocative and offensive conduct becomes a functional equivalent of asserting the missing social rights of their group.

The bracing opt-out from elements of the social compact does not extend to the participation in wealth. In the resentful spirit of having suffered betrayal at society’s hands, the claim thereto is sustained and even expanded into the demand that one ought to benefit regardless of one’s contribution. It is not by mere coincidence that the demand replicates the normative logic of family members. The ground underpinning all claims is the social fact of belonging to the community. If the terms of belonging become spelled out in ethno-nationalist terms, the most straightforward way to protect members is, so it may seem, to eliminate non-members. Right-wing politicians adopt this strategy as their program. Exclusion becomes, quite disturbingly, a chief means of social policy. Indeed, reducing on the grounds of nationality the number of potential claimants to assistance becomes a chief lever of sustaining the system. The populist scare – Hegel helps us to understand this – grows out of the unresolved tensions inherent in the normative presuppositions – the ‘values’ – of civil society.

Civil society, Hegel understood, reacts to such unruly practices by mobilising the police, which is characterised, in Hegel’s work, in entirely functional terms. It tries to do its best to prevent the disintegration that is nonetheless inherent in society’s operation.Footnote ⁵¹ While offering, as it has to, poor relief, it is also involved in repressing rebellion and enforcing fundamental values.Footnote ⁵² This is happening in the Union on the grander scale of Article 2 protection where we see the Commission and the Court acting as the European integration police. Article 2 and Article 19 TEU comprise, thus understood, the core of Europe’s Polizeirecht.

5. Forwards with pessimism

I earned much ridicule when I answered, more than 10 years ago, the question, asked by American colleagues, what in my view the EU should be like in the future. I replied that the EU should become like Sweden.

Ha ha ha! How naïve of me!

Nonetheless, to this day, I believe to have hit the nerve of European integration. Europe is, expressed in Hegelian terms, a society. It is riven with irreconcilable conflicts between particular perspectives – be it the conflict between local and migrant workers, ambitious business plans and predictable working times, the Stability and Growth Pact and the exigencies of deficit spending, or the mutual charge of exploitation in the relation of the core and the periphery. We remain at the loss what the universal perspective could be that might mend the rifts. European civil society leaves the allocation of wealth and the design of relations of production to the operation of anonymous mechanisms. It merely addresses and regulates the ‘risks’ inherent in their operation. Since its inception, Europe has elevated the market to the alpha and omega of human association. The market, however, is not what Hegel would have regarded as spirit brought to its full fruition. The market, even if the universal normative framework of human interaction, is, as stubbornly asserted by Hayek,Footnote ⁵³ incapable of intentional agency.Footnote ⁵⁴ By contrast, politics is. Therefore, the dislodgment and faulting inherent in civil society – its crisis and conflict-ridden structure – could only be overcome by what Hegel calls ‘the state’.Footnote ⁵⁵ The state holds out the promise to carry out a work of reconciliation.

Viewed from a Hegelian perspective, the commonplace according to which the European Union is not a state can be thus cast in a different, and possibly clearer, light. It is a place where the fundamental conflicts between solidarity and the pursuit of the individual interest cannot be settled.Footnote ⁵⁶ Rather, it is the social sphere where we encounter muddling through (‘compromise’) in the face of ever deepening disagreements, repeated outburst of indignation and growing inequality of condition. ‘European society’, taken seriously as a Hegelian project, would have to develop a sober and somber perspective on a situation in which various governing bodies are flung from one exigent crisis management to the other, always with little prospect of keeping the ship on an even keel. It would have to explain why this is ‘as good as it gets’ and nothing else remains to be hoped for at the perpetual end of history, from which finding an exit appears to be incurably without hope.