Nein!

Hold fast to dreams//For if dreams die//Life is a broken-winged bird//That cannot fly.//Hold fast to dreams//For when dreams go//Life is a barren field//Frozen with snow.

With this poem by Langston Hughes I ended my graduation speech in high school. I remember it now as I am pondering how to put into words my feelings and thoughts of the last weeks oscillating between hope, fear and despair — triggered by the events unfolding after the Greek delegation “left the negotiating table” in Brussels on 27 June. When I graduated from high school more than 20 years ago I was quite hopeful (like generations before me) that knowledge combined with political activism could change the world for the better. Already then I was fearful of environmental disaster and military destruction, but periodical acts of teenage disobedience – plastering the school with antiwar poems to protest against the first Iraq war or blasting music over the courtyard while staging an impromptu play (I cannot remember against or for what exactly) — were not only fun but gave me and my friends a sense of agency – “Viele kleine Leute an vielen kleinen Orten, ….”/think global act local.

In the meantime the world has become no friendlier place (but who am I to state this privileged as I am). I may be wiser (although sometimes I doubt it), but I also succumbed to a mixture of complacency or trust in professions and institutions, resignation and perpetual lack of time. I trust that science and politics will do something to keep us safe and free, that one of the political parties will have a programme relatively compatible with my ideological leanings. I close my ears to the horror scenarios describing the consequences of climate change as I have stopped believing that we will achieve a reorganization of our economy and am too much of a coward to confront the disasters that lie ahead. But apart from complacency and resignation the possibly most significant difference to my political teenage self is the perceived loss of time. Time spent with friends who also had nothing more important to do than to think up little projects – plays, posters, protests… I am lucky that my current job does not meet the description of a “bullshit job” (recently formulated by David Graeber), but appears to leave me some freedom for thinking, educating, creating. Yet this has not helped to sustain the sense of agency I felt as a youth. I have become more knowledgable, my critique better founded but I no longer see how we (who?) might halt ecological destruction or social destitution. And thus I am not even using the time and space offered by my job for any kind of mischief that would combine joy, resistance and engagement for change.

The last weeks now worked like a wake up call for me, triggering a sense of urgency for action, some action, any action and if it is only the writing of this post (which prompts a multitude of voices in my head judging my musings to be “gratuitious”, “empirically unfounded”, “theoretically undercomplex” …). So what was the trigger that suspended resignation and shattered complacency and trust (“Vertrauen” — a word I have come to loathe in the past weeks for its abuse and misuse by crisis commentators)? It was, I suspect, a combination of a heightened perception of complicity in a number of outrageous injustices and the excitement that agency may be regained. I may have long resigned to the fact that my privilege is the flip side of other people’s poverty, that through my daily consumption choices I am perpetuating structural injustices. Thus you may call me a hypocrite — but whilst everyday complicity has become second nature it appears to me of a different quality if we (I!) unflinchingly (i.e. without any visible/public reaction on my part) register the deaths of thousands of refugees at the borders of Europe; if we not only watch on as human misery in Greece increases but my government actively contributes in my name as a German taxpayer.

As a sense of responsibility slowly pushed resignation aside the Greek announcement of a referendum came as a relief.  For me (and I am not alone in this interpretation) the referendum was not merely a Greek affair. In my understanding it provided first of all an opportunity to express solidarity and resistance by supporting a No vote. Moreover, the referendum by putting to a brief halt the crisis resolution machinery promised a broader and more public debate not only about the short and medium term remedies to the eurocrisis, but also the long term reform of EU law and institutions and ultimately perhaps a re-humanizing of capitalism. While I had long lost interest in the rather stale academic debates about the need for, conditions and manifestations of a European public, during the days surrounding the referendum I did indeed feel part of a transnational, transeuropean public; part of a movement that voiced discontent with the austerity measures that have led to such utter deterioration of living conditions in Greece, but also disagreement with the general state of the world in which concerns of finance trump those of the real economy and where social justice and ecological health lie at the bottom of the hierarchy of political action.

These may be solipsistic impressions. There have been protests before and others will have experienced similar feelings already during the Genoa protests in 2001, the Arab spring, the mass demonstrations in Spain in 2011. For me a prior event prompting some optimism was when Occupy took Zucotti park and similar camps appeared around the world including one in front of the European Central Bank in Frankfurt. Yet whilst at that time I felt somewhat solitary in posting Occupy news from Frankfurt on my facebook timeline, the transnational politicization triggered by the Greek referendum in its extent appears unprecedented (at least in the Europe of my lifetime) – with public intellectuals weighing in en masse, economists taking public stances and writing open letters, with petitions multiplying, internet sites serving as platforms for transeuropean networking, organization of protest, collection and dissemination of political, economic and philosophical analysis.

Given the atmosphere of change, the feeling that we may have the chance to prey open a window of opportunity from our iron cage for a different, a social Europe it was all the more disenchanting to observe how the referendum was treated by European institutions, political parties and mass media in Germany. The persistent reinterpretation by officials and politicians of the referendum question as a question about “Grexit” was an attempt to foreclose any discussion about how a No vote should affect the crisis management within the eurozone. The depiction of the referendum as a nationalist affair pitted “the Greeks” against “the Germans” and completely ignored manifestations of solidarity across Europe. I have been tempted to take the partial and ignorant reporting by German media (which largely disregarded fundamentals of political economy by insisting on metaphors of doing your homework, keeping your household in order and not living beyond your means) as symptoms of the financially destitute state of German newspaper publishers and national public radio. Yet taken together with the statements of politicians and government officials,  the ECB’s decision to freeze Emergency Liquidity Assistance afforded to Greek banks as well as post-referendum reactions it is difficult not to conclude that these have been concerted actions to weaken the push for change. European Council president Donald Tusk was very frank in an interview he gave the Financial Times after the referendum: “This new intellectual mood, my intuition is it’s risky for Europe. Especially this radical leftist illusion that you can build some alternative to this traditional European vision of the economy. I have no doubt frugality is an absolutely fundamental value and a reason why Europe is the most prosperous part of the world…. My fear is this ideological contagion is more risky than this financial one.”A further particularly enraging attempt to discredit those who supported the referendum as an act of resistance and a request for reform from within the European institutions was to place them in the same camp with right wing anti-European groupings.

Now that No has been turned into Yes to further farreaching austerity measures and that debt relief in form of a haircut is being ruled out, in particular by the German government, as a violation of the no bail-out provision (Art. 125 TFEU) I refuse to feel irresponsible for having supported a No. Rather I want to shout out loud into the direction of the German government and the European Council “no me representan!”. And my anger and disbelief increases as over breakfast these days I listen to the seemingly endless commentary on Deutschlandfunk – the German national public radio — that “the Greek” may still not be trusted as they do not appear to take “ownership” of the prior actions they needed to underwrite and implement before negotiations of a third “rescue package” would begin. In 2010 and 2011 it was the unpredictability of nervous markets that served as an argument against too much democratic deliberation on how the eurocrisis should be handled. Today as markets seem quite calm it is EU member states’ governments, also known as “the creditors”, who instrumentalise Greece’s debt to make a farce of democracy.

So what now? For one hot week (not even a whole hot summer) I and with me some others felt a renewed sense of agency and glimpsed a chance of change. The semester has ended and I have some time to reflect on the past weeks and on my responsibility as a human being, German and European Union citizen and international lawyer. I might join others to refine the international law doctrine of odious debt, the argument that Art. 125 TFEU does not prohibit a debt restructuring, the case that the ECB acted illegally when freezing Emergency Liquidity Assistance and that the IMF departed from its own policies and practices by supporting the Greek memoranda of understanding. These might be suitable activities for short term activist interventions in the crisis management. But what about after the semester break? When attention has diverted from Greece and we have reverted each to our own disaster specializations – climate change, migration, war, destruction of cultural property – our minds possibly more on career prospects than the fate of fellow human beings and future generations. What would it mean to assume responsibility? What can I do through my writing, teaching, activism to resist and if not to change the course of affairs at least (to use a formulation by Heinz-Dieter Kittsteiner) not to run from a history I cannot create.

I do not have an answer. Having observed the skewed reporting, one way to take responsibility may be to get involved more in public discourse. Strangely enough during the last weeks even though there was much talk of the fate of the European project – the European community of law – lawyers were conspicuously silent. It was mainly economists and some philosophers who (apart from politicians) took the stage. A few lawyers made the case that we should and could neatly separate questions of law and economics. I disagree. I am convinced that to take responsibility as lawyers we must attempt to understand the political economy of debt, money, finance which are largely legal constructs and highly intertwined with government. If we then aim at reform of our capitalist economy (which we should) to ensure that it can provide prosperity and freedom, we must attempt to stay clear of two mistakes. First we should not disregard the limitations that the current political economy imposes on reform, not aim for the impossible; second we should not be satisfied with too little, not fall into the trap of what Roberto Unger calls rationalizing legal analysis — meaning that we need to go beyond proposal for law reform that neatly fit into the given legal material as we have rationally reconstructed it, that we should question and not take as a given the present distribution of the means of production, tax and transfer policies or separation of fiscal and monetary policy. There surely is no easy fix to overcome the crisis of democratic capitalism. There cannot exist a feasible “plan B”, we should not hope for a grand design for a “welfare world”. Successful reform will need to be incremental and, in my view, requires a combination of theory and practice, a coupling of programmatic thinking with democratic experimentation. A number of useful suggestions have already been made for addressing structural deficiencies of the Economic and Monetary Union, among them those put forward by Yanis Varoufakis, Stuart Holland and James Galbraith in their “modest proposal.”  In order to develop further ideas we urgently need perspectives – historical perspectives into the political economy and legal construction of capitalist institutions in the last five hundred years as well as perspectives opened up by contemporary social experiments such as, for example, the introduction of parallel currencies.

Finally, I believe that we need to make time. It may indeed be the most forceful act of resistance and a precondition for gaining agency to reclaim time — be it from bullshit jobs, the internet or consumption. Time to walk on the beach, sit in the park, make music, recite poetry, think slow and dream of a revolution.