[Editor’s Note: This is Part II of a two-part series. Part I was published here on February 26, 2017.]
As I have argued in Part I of this series, the “politics of resentment” endanger the very basis of mutual trust between member states that has been defining the European project ever since its inception.
Mutual trust towards the other states and the community they had created acting in unison has been the cornerstone of an ethos of Europe. This trust has been always built on the convergence between the fundamental values of Member States and their legal orders on the one hand, and the foundations of the Union legal order on the other. The “politics of resentment” pose the ultimate challenge to the foundations behind integration and EU membership: the commonality of liberal and democratic values and interests, agreement that the Community is more than just the sum of its parts and loyalty to the community legal order as binding on all components.
European Overlapping Consensus in Distress?
Past European crises were a source of galvanization and they often pushed further EU integration. Yet they never questioned the European overlapping consensus that coalesced around certain essentials that brought together states in a constitutional regime.
An overlapping consensus requires agreement on fundamental commitments of principle. It is these essentials that I require others to respect as the condition of my own deference to the decisions by others.
The persistent differences of citizens living together in a constitutional regime create disagreement over the final shape of these constitutional essentials. At the same time, they agree that these disagreements will be ironed out and spelled out within the discursive framework. Importantly, the European overlapping consensus never rested on a pre-agreed single doctrine of human dignity, individuality and even democracy. The European overlapping consensus has at its heart constitutional tolerance and agreement on the fundamental commitment of principle that is those essentials which we require others to respect.
“We” peoples of Europe agreed to respect others way of life, provided their lives and decisions respect mutually agreed essentials and fundamental values. Constitutional tolerance subjected European peoples to the discipline of democracy even though the European polity is composed of distinct peoples. The politics of resentment call into question this narrative by putting forward a competing one, that of fundamental disagreements over values and the inability of today’s European Union to keep fostering mutual trust.
An overlapping consensus relies on the acknowledgment by the members of multiple societies of their persistent differences in understanding and respecting the essentials that bind them together, while at the same time honoring the influence of others on the interpretation of shared commitments.
“Doing Europe” … Together?
I do not pretend to have ready answers to all the questions raised above.
Rather, I see their pertinence and usefulness and I believe they are the right questions that should inform our European debate as we try to move forward. After all, asking a good and focusing question is always half the battle.
Good questions determine our search for answers and discipline the process. As it is engulfed by the politics of resentment, Europe needs a discursive framework for articulating and accommodating the practical meaning of the overlapping consensus.
My argument is that such a framework must be centered around basic challenges which could be presented here as a combination of the past, present and the future. The politics of resentment challenge us to revisit forgotten founding narratives of European integration (dimension of the past), rethinking Europe’s vocation today (dimension of the present) and finally opening up to and embracing new vistas (dimension of the future).
Resentment-driven constitutional capture poses an existential threat to post-1945 Europe and its founding narratives of living together and “never again constitutionalism” that have animated Europe’s Founding Fathers.
Europe is not Europe in the sense that Germany is Germany, or France is France. Europe is all about Doing Europe which aims for the effective and unsentimental […] Doing Europe transforms bad history into good future and better life for everyone irrespective of race, language or religion […] Doing Europe embodies Never Again.
The politics of resentment forcefully show that “Doing Europe” of overlapping consensus and tolerance ceases to be the dominant European narrative. Instead the politics of resentment and the constitutional capture push Europe into a standstill and an identity crisis. Europe is falling short of a novel challenge that comes along with the politics of resentment: moving beyond its traditional mandate of making sure that the member states behave in a certain way (for example, to implement EU law, to remove obstacles to free trade) and on towards preventing these same states from endangering and hijacking common values and principles. The rethinking of external constraints and limitations imposed on the domestic pouvoir constituant in response to constitutional capture of liberal constitutions loom large.
As we try to move forward, the question is this: Are “We, the European Peoples” ready to continue living together in a constitutional regime, internally divergent, and yet always ready to respond to the exigencies and demands of new realities?
The challenge behind this question has been eloquently summarized by J. Tully’s canoe metaphor:
Perhaps the great constitutional struggles and failures around the world today are groping towards the third way of constitutional change, symbolized by the ability of the members of the canoe to discuss and reform their constitutional arrangements in response to the demands for recognition as they paddle. A constitution can be both the foundation of democracy and, at the same time, subject to democratic discussion and change in practice.
With the politics of resentment fueling European disintegration, with the exclusion of “the Other” and “constitutional capture” elevated to the status of new modes of governance, the challenge of paddling together and doubts as to our commitment to the journey have never been more acute and dramatic.
Suggested Citation: Tomasz Tadeusz Koncewicz, Of the Politics of Resentment and European Disintegration: Are the European Peoples Ready to Keep Paddling Together? Part II, Int’l J. Const. L. Blog, Mar. 9, 2017, at: http://www.iconnectblog.com/2017/03/of-the-politics-of-resentment-and-european-disintegration-are-the-european-peoples-ready-to-keep-paddling-together-part-ii
* LLM School of Law, University of Edinburgh; Professor of Law and Director of the Department of European and Comparative Law, University of Gdańsk; 2015 – 2016 Fulbright Visiting Professor, Berkeley Law School. This short analysis is a work in progress. At this stage I am very grateful to Professors Malcolm Feeley and Kim Lane Scheppele for their enlightening and inspirational comments and suggestions on the ideas presented here. Needless to say all omissions and drawbacks are mine. All comments welcome at www.tomasz-koncewicz.eu.
 Editorial. Membership in times of crisis, (2015) 51 Common Market Law Review 1.
 On ethos of Europe see A. Williams, The ethos of Europe. Values, Law and Justice in the EU, (2010).
 I draw here on the influential work of J. Rawls, Theory of Justice, (1971); (1987) 7 The idea of an overlapping consensus, Oxford Journal of Legal Studies 1; Political liberalism (1993). For the relevance of overlapping consensus in the EU context see Ch. F. Sabel, O. Gerstenberg, Constitutionalising an Overlapping Consensus: The ECJ and the Emergence of a Coordinate Constitutional Order, 2010, 16 European Law Journal Volume, pp. 511–550.
 Interestingly the Court of Justice was ready to concede that member states’ mutual trust in their legal systems is a rebuttable presumption, concession that would be unthinkable 20 years ago. See joined cases C – 411&493/10, N.S. (judgment of December, 21, 2011, available at www.curia.europa.eu).
 Or what Sir D. Edward perspicuously calls “An appeal to first principles” (unpublished manuscript on file with the Author).
 U. Beck, E. Grande, Das kosmopolitische Europa. Gesellschaft und Politik in der Zweiten Moderne, 2007 (my translation).
 For the incisive outline of the argument see K. L. Scheppele, Unconstitutional constituent power, in R. Smith, S. Macaulay, (eds), Constitution making, (2015).
 J. Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity, (Cambridge University Press, 1995), p. 29.