Europe in the period after 1945 has seen a clear, if gradual, shift towards cooperation over conflict. At this time, in the wake of the Second World War, nations lay in tatters and the continent was soon to be divided completely in half with spheres of US and Soviet influence. Beginning with those nations to the west of the ‘Iron Curtain’, a new environment emerged in which leaders vowed never to allow such widespread devastation as occurred in the two ‘Great Wars’. From that point a burgeoning sense of commitment to each other has evolved; from ‘The Six’ initial delegates into an organisation with a vast remit for control of mainly economic but ever increasingly social and defence policies throughout its membership of 27 states. In the modern day the European Union is a world leader in terms of supra-national governance and integration (Kegley Jr. ’09, p177); with its single market and multilateral currency and with a growing sense of the prospects of the entire group being intertwined. It is a model for other inter-governmental organisations in the East and South America (ASEAN, USAN etc.).
In Europe post 1945 there remained a tension between the traditionally opposing Allied and Axis powers as well as the new issue of Russian dominance in the East. The Red Army had marched in to Berlin, which was now divided in to four spheres of influence; US, British, French and Soviet. The nations of Poland, Romania, Czechoslovakia and East Germany amongst others had all fallen beyond the control of the Western Powers and the continent was more divided than ever. The idea of the all-powerful nation state had been discredited and the key players of the mainland; namely France and Germany, were keen to build closer relations (Pinder 1998, p3). For France this was as much to limit the power of the German state as for advancement of their own. The idea of the European Coal and Steel Community (ECSC) was devised by Jean Monnet as a starting point; a lowest common denominator for these two nations to agree, with the aim of expanding cooperation at a later time (Ross 2009, p479). Six nations agreed to join this community (France, Germany, Italy and the Benelux countries) and from that seed has emerged over half a century of ever expanding central governance in Europe. This essay will seek to identify the key reasons for this shift from conflict to international cooperation in the period post-1945, and explain the reasons for their occurrence and the motives of the key actors.
One of the key factors in the changing attitudes of powerful actors after World War Two was the sheer devastation and loss caused by the conflict. Overall 60 million people had died worldwide, including 37 million civilians and 6 million Jews. This was loss unequalled even by the First World War and it lead the key players in Europe to question the methods of peacemakers at Versailles as well as the traditional power of the ‘nation-state’ itself. Versailles, and more specifically the reparations and ‘War Guilt Clause’, had almost certainly played a part in Hitler’s rise to power and the burning resentment within the German state. It would certainly not have been wise to have ignored this lesson and again sought to punish the aggressors. Nationalism and the ”Fascist glorification of the nation-state” was a stark lesson on the problems caused by a lack of coordination between European governments and many discussed the possibility of Federalist system and close cooperation (Pinder 1998, p4).
The French still had reservations about rebuilding Germany and integration was viewed by some as a way of taking some control of German policy. If they could make Germany commit to supra-national control and inter-governmental cooperation whilst she was in a weakened state then future governments would struggle to withdraw from these arrangements later on. Jean Monnet picked up on coal and steel as an initial area for cooperation, which would allow the French to disassemble the German war machine and exert an element of control over its resources. Joint control over these key manufacturing industries would make it nigh on impossible for one country to attack the other, given the difficulty of gaining the resources required and the massive hit it would take to its own economy. It was important for Europe as a whole that it developed multi-lateral security through cooperation and joint ventures, in order to avoid the type of ‘security competition’ that lead to the problems and divisions in the build up to World War Two (Art 2007, p6) It could easily be argued that Monnet was himself a federalist, advocating strong powers for European government, but was intelligent enough to see that people would only accept the idea in small steps; it would never be possible to make an immediate switch to a ‘United States of Europe’ but he had much grander plans for the development of the ECSC (Burgess 1991, p27).
A second key factor is a decline in global influence. After World War Two those nations, especially Britain and France, that had been major world powers in the past began to realise that they no longer had sufficient influence in the world if operating alone. The growth of the USA and USSR, with their massive populations and geographical domination, had the economic and military power to completely engulf Europe in a ‘Cold War’ with pressure exerted from both sides. It became apparent that European governments could only hope to control the actions of these key players on European soil if they spoke together.
Whilst Britain was happier to downplay its European ties in favour of the Atlantic Alliance and Commonwealth, the French especially were worried that they no longer had the global influence or economic fire-power that once saw these two nations dominate the world with vast empires; it became clear that only a united Europe could carry any weight globally (Senior Nello 2009, p18). The USA was happy with any idea that prevented a continent-wide despair and an influx of Communism. It was, at least in part, the provision of Marshall Aid from 1947 that lead to the creation of the Organisation for European Economic Cooperation (OEEC), with the job of deciding how the money was to be distributed (Weigall and Stirk 1992, p39). This was the first official union of the major European states and the start of an ‘economic community’ which has evolved in to the modern European Union.
Even those states which rejected the mainstream development of economic union, through the ECSC, were not averse to the idea of cooperation. Britain, the Swiss, Austrians, Portuguese and Scandinavian nations rejected the Coal and Steel Community but instead formed a separate alliance, the European Free Trade Association (EFTA). Cooperation was seen as the most effective method of economic development and the split between ‘The Six’ and the EFTA was over the style of its implementation, not its principles.
Thirdly the western European powers had to look outwards. As well as internal issues the European states also needed to protect themselves from the external threat of Soviet Russia and the impact of the Cold War. Europe was divided in half through Berlin and those countries to the west of the wall were determined to prevent a domino effect and the spread of Communist influence. The Treaty of Rome (1957) set up a European Economic Community; a unity of the same six nations of the ECSC but with even stronger links and broader cooperation. Article 2 of the treaty set out its key objectives, which included increased stability and steady expansion; a clear sign that those six nations were consciously defending themselves against the ‘Evil Empire’ and sought closer cooperation with other European states (Senior Nello 2009, p27). The uprising in Czechoslovakia in 1948 had been a real cause for concern, as was the development of Soviet nuclear arms. These Cold War security issues amongst many others evidenced the fact that ‘The Six’ had to work together and expand to find safety in numbers.
The European states were, to an extent, duty bound to act against the USSR because of the level of aid from the USA and the debts they owed. US troops were stationed in West Germany, which was seen to be the most vulnerable, but the neighbouring states were uncomfortable with the idea of German rearmament. The North Atlantic Treaty Alliance (NATO) signed in 1949 was an attempt to protect Germany, and the rest of the European mainland, under a banner of unity and integration whilst avoiding the risk of a renewed German threat (Taylor 2007). It was also another example of integration in action, but on a larger scale. At the time NATO comprised 12 nations whilst Europe’s union was only 6.
After the initial successes of the 1940s and 1950s the ‘European Project’ took off and even Britain, who were initially ”of’ Europe but not ‘in’ Europe” (Churchill 1946) applied for membership in 1961 and 1967 (only to be vetoed by Charles de Gaulle). The fourth factor in the push for integration is the success of integration in itself. The rise in living standards targeted by the Rome Treaty made those nations, chiefly of the South and the Scandinavians, see the benefits of integration for their economies and this remained a key selling point right up to the fall of the Berlin Wall in 1989-1991 when the former Eastern Bloc states were equally keen to join the EC.
The idea of ‘ever-closer union’ gained momentum ”…and its own prophets who exhibit zealous faith as to its destiny” (O’Neill 2009, p 4). Its usefulness and mutual benefits saw the idea of integration take deep root within many political elites and, despite a certain separation from the people at large, levels of cooperation continued to grow throughout the second half of the twentieth century.
In conclusion it is clear that after half a century of tension and conflict there was a real push for closer ties and cooperation within Europe after 1945. Whilst the East came under the shadow of the USSR and stagnated, practically every nation to the west of the Berlin Wall saw sense in the notion of a united European union as a means to economic growth and security; even if they didn’t initially want a part in it themselves (as with Britain). It was important, especially for the French, that Germany be contained and controlled. The ECSC brought these two nations together with shared resources and has led to over 60 years of peaceful friendship. Second the former European powers had lost much of their global influence and fallen far behind the US and Soviet Union; the only way for them to have a significant voice on an international stage was by joining together to work for mutual gain. Third was the external security concern of Communism, which was combated through the NATO alliance and defensive cooperation. Finally, all of these factors in unison lead to a rise in living standards and levels of security that Europe had not experienced for centuries. The success of the integration project was its own catalyst for ‘ever-closer union’ and the growth of the Community.
Art, R. J. (2007) Why Western Europe needs the United States and NATO. The Political Quarterly, Wiley-Blackwell Publishing, Oxford, UK.
Burgess, M. (1991) Federalism and European Union. Routledge, London, UK.
Churchill, W (1946) Speech at Zurich 19/09/1946 sourced from Weigall, D. and Stirk, P. (1992) The origins and development of the European Community. Leicester University Press, UK.
Kegley Jr., C. J. (2009) World Politics; Trend and Transformation. Cengage Learning, CA, USA.
Ross, G. (2009) ‘Politics and Economics in the Development of the European Union’ in Kesselman, M. and Krieger, J. (2009) European Politics in Transition. Cengage Learning, CA, USA.
Pinder, J. (1998) The building of the European Union. Oxford University Press, UK.
Senior Nello, S. (2009) The European Union: Economics, Policies and History. McGraw-Hill Education, Berkshire, UK.
Taylor, J. (2007) Motives for European Integration Since 1945 taken from http://www.helium.com/channels/565-Politics-in-Europe
Weigall, D. and Stirk, P. (1992) The origins and development of the European Community. Leicester University Press, UK.
WW2 History (2011) taken from http://www.secondworldwarhistory.com/world-war-2-statistics.asp on 21/12/2011.
Written by: Ben Bradley
Written at: Nottingham Trent University
Written for: BA Politics
Date Written: December 2011
1. Exploring political and legal culture
Typically and importantly, in exploring the systemic aspects of the Union in our attempts both to reach conceptual understanding as well as, instrumentally, to explain its success and failures, we reach out to the political and the legal. As regards the former, our systemic approach is to focus on institutional structure and decisional process. As regards the latter, our systemic approach focuses not on the substantive, material, primary rules of Union law but on what we commonly call the “legal order” and its own operating system—the systemic secondary rules and principles that hold together the substantive content. The interaction between the political and legal for long has been a mainstay of the field, a rich and productive seam, the mining of which has enabled us to give a broader and deeper understanding of both the conceptual and the operational.
In this exploratory essay, I reach out to prior questions as regards both the political and the legal, questions concerning the culture that undergirds political structure and process as well as legal order. Political and legal culture are “prior” in an ontological sense, they inform specific institutional arrangements and, at times give them meaning. Culture, including political and legal culture, is never static. It may inform the specific institutional arrangements, but, in turn, it is itself informed, shaped, and modified by the arrangements in a continuous cycle of interaction. This poses a formidable methodological Gordian knot, which may explain why, despite our long-held understanding of the importance of culture in any systematic analysis of polity, it has received somewhat less attention in European Union studies.
My way of cutting through the knot, rather than unraveling it, has been to examine the temporally “prior,” the prior-in-time, through what, I hope, is a fresh look at some of the most noted foundational instruments (texts) of European integration. This is an inevitably limiting methodology since it cuts out the dynamic, that continuous interaction between political institution and processes and political culture. However, even this static methodology has yielded some results, which I found both unexpected and illuminating as regards the political, the legal, and their interaction. I believe these results contribute both to our conceptual understanding as well as, instrumentally, to the extant explanatory apparatus of the successes and failures of the integration narrative.
2. Europe, the current circumstances
This is an interesting time to be reflecting on the European construct. Europe is at a nadir, which one cannot remember for many decades and which, various brave or pompous or self-serving statements notwithstanding, the Treaty of Lisbon has not been able to redress. The surface manifestations of crisis are with us every day on the front pages: the euro crisis and discord over Libya being the most current. Beneath this surface, at the structural level, lurk more profound and long-term signs of enduring challenge and even dysfunction and malaise.
First, internally, there is the persistent, chronic, troubling democracy deficit, which cannot be talked away. Then there is a deeper legitimacy crisis, whereby the citizens’ growing indifference is turning into hostility, and the ability of Europe to act as a political mobilizing force seems not only spent but even reversed. Finally, in the world arena, Lisbon notwithstanding, there is the equally persistent, chronic, and troubling failure of Europe to translate its economic might into hard political power and the enduring (and, in my view, irresponsible) abdication of a serious commitment to security, leaving the field, as it has for decades, to a less and less engaged America.
At some level, the same could have been said ten and even twenty years ago. What is of interest is the trajectory that, on all three issues, seems to be negative, with things getting worse rather than better.
As indicated, what I hope is somewhat novel in this essay is an attempt, first, to link these enduring problems to the political and legal culture of the integration process and, in turn, to link that culture to some of the founding moments of the Union reflected in foundational documents. In what follows, I will first elaborate somewhat on the three aspects of the European circumstance identified above and then turn to an exploration of those early moments.
The manifestations of the so-called democracy deficit are persistent, and no endless repetition of the powers of the European Parliament will remove them. In essence, it is the inability of the Union to develop structures and processes that adequately replicate or “translate” at the Union level even the imperfect habits of governmental control, parliamentary accountability, and administrative responsibility that are practiced with different modalities in the various member states. In essence, the two primordial features of any functioning democracy are missing—the grand principles of accountability and representation.
As regards accountability, even the basic condition of representative democracy, namely, that at election time the citizens “‘can throw the scoundrels out’”—that is, replace the government—does not operate in Europe. The form of European governance, governance without government, is and will remain for considerable time, perhaps forever, such that there is no “government” to throw out. Dismissal of the Commission by Parliament (or approving the appointment of the Commission president) is not quite the same, not even remotely so. Startlingly, the political accountability of Europe is surprisingly weak. There have been some spectacular political failures of European governance. The embarrassing Copenhagen climate fiasco; the weak (at best) realization of the much-touted Lisbon agenda (a.k.a. Lisbon strategy or Lisbon process); the very story of the defunct “Constitution,” to mention but three. It is hard to point, in these instances, to any measure of political accountability, of someone paying a political price, as would be the case in national politics. In fact, it is difficult to point to a single instance of accountability for political failure as distinct from personal accountability for misconduct in the annals of European integration. This is not, decidedly not, a story of corruption or malfeasance. My argument is that this failure is rooted in the very structure of European governance. It is not designed for political accountability. In similar vein, it is impossible to link, in any meaningful way, the results of elections to the European Parliament with the performance of the political groups, within the preceding parliamentary session, in a way that is part of the mainstay of political accountability within the member states. Structurally, dissatisfaction with “Europe” when it exists has no channel to affect, at the European level, the agents of European governance.
Likewise, at the most primitive level of democracy, there is simply no moment in the civic calendar of Europe where the citizen can influence directly the outcome of any policy choice facing the Community and Union in the way that citizens can when choosing between parties that offer sharply distinct programs at the national level. The political color of the European Parliament is only very weakly translated into the legislative and administrative output of the Union. The political deficit, to use the felicitous phrase of Renaud Dehousse is at the core of the democracy deficit. The Commission, by its self-understanding linked to its very ontology, cannot be “partisan” in a right–left sense, neither can the Council, by virtue of the haphazard political nature of its composition. Democracy normally must have some meaningful mechanism for expression of voter preference predicated on choice among options, typically informed by stronger or weaker ideological orientation. That is an indispensable component of politics. Democracy without politics is an oxymoron.
Thus, the two most primordial norms of democracy, the principle of accountability and the principle of representation, are compromised in the very structure and process of the Union.
The second manifestation of the current European circumstance is evident in a continued slide in the legitimacy and mobilizing force of the European construct and its institutions. I pass over some of the uglier manifestations of European “solidarity” both at governmental and popular level as regards the euro crisis or the near abandonment of Italy to deal with the influx of migrants from North Africa as if this was an Italian problem and not a problem for Europe as a whole. I look, instead, at two deeper and longer-term trends. The first is the extraordinary decline in voter participation in elections for the European Parliament. In Europe as a whole the rate of participation is below 45 percent, with several countries, notably in the East, with a rate below 30 percent. The correct comparison is, of course, with political elections to national parliaments, where the numbers are considerably higher. What is striking about these figures is that the decline coincides with a continuous shift in powers to the European Parliament, which today is a veritable co-legislator with the Council. The more powers the European Parliament, supposedly the vox populi, has gained, the greater popular indifference to it seems.
No less consequential is a seemingly contagious spread of “anti-Europeanism” in national politics. What was once in the province of fringe parties on the far right and left has inched its way into more central political forces. The “question of Europe” as a central issue in political discourse was for long regarded as an “English disease.” There is no growing contagion in member states, North and South, East and West, where political capital is to be made among nonfringe parties by anti-European advocacy. The spill-over effect of this phenomenon is the shift of mainstream parties in this direction as a way of countering the gains at their flanks. If we are surprised by this it is only because we seem to have airbrushed out of our historical consciousness the rejection of the so-called European constitution, an understandable amnesia since it represented a defeat of the collective political class in Europe by the vox populi, albeit not speaking through but, instead, giving a slap in the face to the European institutions.
The final feature of the current circumstance is a manifestation of an equally persistent and, at times, embarrassing European lack of both capacity and resolve (and a lack of resolve to have the capacity) to defend and protect the values it professes to hold most dear. It is only the same propensity for amnesia that enables us to avoid this problem—to look in our collective mirror without at least some measure of shame. In the 1990s, in the heart of Europe, not even 500 kilometers (about 310 miles) from Rome, for the second time in the same century, Europe allowed that which it had vowed would never be allowed to happen again, something the European construct was meant to guarantee would never happen again; namely, the genocide (so qualified by the World Court) of a non-Christian religious minority. And then, when finally the endless talking came to an end, and the resolve was found to prevent the Bosnian humanitarian catastrophe from repeating itself in Kosovo, Europe discovered that it did not possess the capacity to realize its resolve. Once again, the “cavalry” from across the Atlantic had to be called in. Europe alone could not plan, target, let alone execute this relatively simple operation.
Bosnia points, in my eyes, to a deeper facet of the political failure. The Srebrenica incident, where Dutch soldiers allowed the worst atrocity of that war to take place without any attempt to intervene and put a stop to it. These could have been Italian or British soldiers or soldiers from any other of our member states. And these immobile soldiers were, like all of us, firm believers in human rights, solidarity, and all the other values we profess. Their values were in place but evidently they lacked the virtues necessary to vindicate such. They lacked the courage that is born from a conviction that some things, like preventing a mass slaughter of the innocent for the simple reason that they do not share your faith, is worth killing for and dying for. They were the product of a culture in which it would appear that nothing is worth dying for or killing for, and, if it is, it should be others who do the dying and killing. If anyone wants to entertain the illusion that Kosovo was an aberration, we now have Libya, with a repetition of at least part of the Kosovo pathology: that without massive American military involvement, Europe—let us be clear—would simply have been unable to undertake any action in its so-called mare nostrum.
It is not only a question of arms. All the Lisbon efforts to strengthen and give coherence to the international manifestation of the European Union were showed up in their embarrassing poverty. Not only was there the expected absenteeism from the Libyan crisis management of the European presidents and “foreign minister,” with the usual member state leaders taking front and back seat, but, even at this intergovernmental level, Europe was seen as fragmented and fractured, with the world treated to a divided vote among the very pillars of European integration within the Security Council.
3. Europe as political messianism
The critique of the democracy deficit of the Union has itself been subjected to two types of critique. The first has simply contested the reality of the democracy deficit by essentially claiming that the wrong criteria have been applied to the Union. The lines of debate are well-known. For what it is worth, I have staked my position above. However, I am more interested in the second type of critique, which implicitly is based on the distinction between democracy and legitimacy. Since the Union, not being a state, cannot replicate or adequately translate the habits and practices of statal democratic governance, its legitimacy may be found elsewhere.
In analyzing the legitimacy (and mobilizing force) of the European Union, in particular, against the background of its persistent democracy deficit, political and social science has long used the distinction between process legitimacy and outcome legitimacy (also known as input/output, process/result, and so forth). The legitimacy of the Union, more generally, and of the Commission, more specifically, even if suffering from deficiencies in the statal democratic sense, are said to rest on the results achieved—in the economic, social, and, ultimately, political realms. The idea hearkens back to the most classic functionalist and neofunctionalist theories.
I do not want to take issue with the implied normativity of this position—a latter day panem et circenses approach to democracy, which at some level, at least, could be considered quite troubling. It is with its empirical reality that I want to take some issue. I do not think that outcome legitimacy alone explains all or, perhaps, even most of the mobilizing force of the European construct. Instead, I would argue, that at the conceptual level there is a third type of legitimation that, in my view, has played, for a long time, a much larger role than is currently acknowledged. In fact, in my view, it has been decisive to the legitimacy of Europe and to the positive response of both the political class and citizens at large. I will also argue that it is a key to a crucial element in the Union's political culture. It is a legitimacy rooted in the politically messianic.
In political messianism, the justification for action and its mobilizing force derive not from process, as in classical democracy, or from result and success, but from the ideal pursued, the destiny to be achieved, the promised land waiting at the end of the road. Indeed, in messianic visions the end always trumps the means.
Mark Mazower, in his brilliant and original history and historiography of twentieth-century Europe,1 insightfully shows how the Europe of monarchs and emperors, which entered World War I, was often rooted in a political messianic narrative in various states (in Germany, and Italy, and Russia, and even Britain and France). It then oscillated after the war toward new democratic orders—that is, a shift to process legitimacy—which then oscillated back into new forms of political messianism in fascism and communism. As the tale is usually told, after World War II, the Europe of the West was said to turn back to democracy and process legitimacy. It is here that I want to point to an interesting quirk, not often noted.
On the one hand, the Western states, which were later to become the member states of the European Union, became resolutely democratic, their patriotism rooted in their new constitutional values, with narratives of glory abandoned and even ridiculed and messianic notions of the state losing all appeal. Famously, former empires, once defended with repression and blood, were now abandoned with zeal.
And yet, their common venture, European integration, was in my reading a political messianic venture par excellence, the messianic becoming a central features of its original and enduring political culture. The mobilizing force and principle legitimating feature was the vision offered, the dream dreamt, the promise of a better future. It is this feature that explains not only the persistent mobilizing force (especially among elites and youth) but also the key structural and institutional choices made. It will also give more depth to explanations of the current circumstance of Europe.
4. The Schuman Declaration as a manifesto of political messianism
The Schuman Declaration is somewhat akin to Europe's “Declaration of Independence” in its combination of vision and blueprint. Notably, much of its text found its way into the preamble of the Treaty of Paris, the substance of which was informed by its ideas. It is interesting to reread the declaration through the conceptual prism of political messianism. The hallmarks are easily detected as we would expect in this constitutive, magisterial document. It is manifest in what is in the declaration and, no less importantly, in what is not therein. Nota bene: European integration is nothing like its European messianic predecessors—that of monarchies and empire and, later, of fascism and communism. It is liberal and noble, yet politically messianic it is, nonetheless.
The messianic feature is notable in both its rhetoric and substance. Note, first, the language used—ceremonial and “sermonial,” with plenty of pathos (and bathos).
World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it… .
The contribution which an organised and living Europe can bring to civilization is indispensable …
… a first step in the federation of Europe [that] will change the destinies of those regions which have long been devoted to the manufacture of munitions of war …
[A]ny war between France and Germany becomes not merely unthinkable, but materially impossible.
This production will be offered to the world as a whole without distinction or exception …
[I]t may be the leaven from which may grow a wider and deeper community between countries long opposed to one another by sanguinary divisions.
It is grand, inspiring, Churchillian, one might even say with a tad of irony. Some old habits, such as the “white man's burden” and the missionary tradition, die hard:
With increased resources Europe will be able to pursue the achievement of one of its essential tasks, namely, the development of the African continent.
But it is not just the rhetoric. The substance itself is messianic; namely, a compelling vision that has animated generations of European idealists, where the ever-closer union among the peoples of Europe, with peace and prosperity as icing on the cake, constitutes the beckoning promised land.
It is worth exploring, further, the mobilizing force of this new plan for Europe. At the level of the surface language, it has the straightforward, pragmatic objective of consolidating peace and reconstructing European prosperity. However, there is much more within the deep structure of the plan.
Peace, at all times an attractive desideratum, would have had its appeal in purely utilitarian terms. But it is readily apparent that, in the historical context in which the Schuman plan was put forward, the notion of peace as an ideal probes a far deeper stratum than simple swords into ploughshares, sitting under one's vines and fig trees, lambs and wolves lying down together—the classic biblical metaphors of peace. The dilemma posed was an acute example of the alleged tension between grace and justice that has taxed philosophers and theologians through the ages—from William of Ockham (premodern), Friedrich Nietzsche (modernist), and the repugnant but profound Martin Heidegger (postmodern).
These were, after all, the early ’50s, with the horrors of war still fresh in the mind, and, in particular, the memory of the unspeakable savagery of German occupation. It would take many years for the hatred, in countries such as the Netherlands, Denmark, or France, to subside fully. The idea, then, in 1950, of a community of equals as providing the structural underpinning for long-term peace among yesteryears’ enemies, represented more than the wise counsel of experienced statesmen. It managed to tap into the two civilizational pillars of Europe: the Enlightenment and the heritage of the French Revolution and the European Christian tradition.
Liberty was already achieved with the defeat of Nazi Germany, and Germans (like their Austrian brethren-in-crime) embraced with zeal the notion that they, too, were liberated from National Socialism. Here was a project, however, encapsulated in the Schuman Declaration, that added to the transnational level both equality and fraternity. The Versailles version of peace was to take yesteryear's enemy, diminish him, and keep his neck firmly under one's heel. Here, instead, was a vision in which the enemy was regarded as an equal—Germany was to be treated as a full and equal partner in the venture—and engaged in a fraternal interdependent lock such that, indeed, the thought of resolving future disputes violently would become unthinkable. This was, in fact, the project of the Enlightenment taken to the international level, as the misogynist Kant himself had dreamt. To embrace the Schuman plan was to tap into one of the most powerful idealistic seams in Europe's civilizational mines.
The Schuman plan was also a call for forgiveness, a challenge to overcome an understandable hatred. In that particular historical context, the Schumanian notion of peace resonated with, was evocative of, the distinct teaching, imagery, and values of the Christian call for forgiving one's enemies, for love, for grace—values so recently consecrated in their wholesale breach. The Schuman plan was, in this sense, evocative of both confession and expiation and redolent of the Christian belief in the power of repentance and renewal and of the ultimate goodness of humankind. This evocation is not particularly astonishing given the personal backgrounds of the founding fathers—Adenauer, De Gaspari, Schuman, Monnet himself—all seriously committed Catholics.
The mobilizing force, especially among elites, the political classes that felt more directly responsible for the calamities from which Europe was just exiting, is not surprising given the remarkable subterranean appeal of the two most potent visions of the idyllic “kingdom”—the humanist and religious combined in one project.2 This also explains how, for the most part, both right and left, conservative and progressive, could embrace the project.
It is the messianic model that explains, in part, why for so long the Union could operate without a veritable commitment to the principles it demanded of its aspiring members—democracy and human rights. Aspirant states had to become members of the European Convention of Human Rights (ECHR) but not of the Union itself. They had to prove their democratic credentials while the Union itself did not—two anomalies that hardly raised eyebrows.
Note, however, that its messianic features are reflected not only in the flowery rhetoric. In its original and unedited version the declaration is quite elaborate in operational detail. However, you will find neither the word “democracy” nor the phrase “human rights.” It's a let’s-just-do-it type of program animated by great idealism (and a goodly measure of good old state interest, as a whole generation of historians such as Alan Milward and Charles Maier, among others, have demonstrated). The European double helix from its inception has been Commission and Council: an international, supposedly apolitical transnational administration/executive (the Commission) collaborating not, as we habitually say, with the member states (Council) but with the governments, the executive branch of the member states, which for years and years had a forum that escaped in day-to-day matters the scrutiny of any parliament, European or national. Democracy is simply not part of the original vision of European Integration.
This observation is hardly shocking or even radical. Is it altogether fanciful to tell the narrative of Europe as one in which “doers and believers” (notably the most original of its institutions, the Commission, coupled with an empowered executive branch of the member states in the guise of the Council and COREPER), an elitist (if well-paid) vanguard, where the self-appointed leaders from whom grudgingly, over decades, power had to be arrested by the European Parliament? And even the European Parliament has been a strange vox populi. For has it not been, for most of its life, a champion of European integration, so that to the extent that, inevitably, when the Union created fears (only natural with such a radical transformation of European politics), the European Parliament did not seem the place citizens could go to to express those fears and concerns.
5. Law and the rule of law
The horrors of World War II but also of the six years leading up to it within Germany provoked a conceptual reconsideration of the rule of law. One may take as an example the degradation and dispossession of the Jews within Germany in the first eight years of the regime prior to their deportation and mass murder. There were, of course, violent and lawless episodes such as Krystallnacht in 1938, which saw the burning and looting of most synagogues and in which the government was complicit by commission (incitement and encouragement) and omission (failure to prosecute the perpetrators). However, what is striking is the exceptional nature of this episode. For the most part, the degradation and dispossession were orderly, systematic, following a legal and, hence, lawful path. The exclusion of Jews from public life was effected by the infamous Nuremberg Law of 1935, which contained elaborate legal definitions and mechanisms. The disposal of Jewish property followed a similar path of legality. Similar legal structures, including courts and judicial procedures, were put in place to enforce even the most invidious features of the regime. Enemies, real and imagined, were not hunted down by clandestine death squads or simply “disappeared.” They were arrested, tried, and then, lawfully, executed. The quiet chilling horror of legalized and bureaucratized discrimination, humiliation, and death is captured by a marvelous book by Tom Lampert3 which presents some episodes captured through extrapolation from official files and the strength of which is the very absence of blood and gore. In effect, the process was achieved through, and with full respect for, the rule of law.
It is this reality that, already in the context of the Nuremberg trials, provoked a conceptual reassessment. Since the rule of law was considered as one of the assets of liberal democracies, one could not grace German practice in those years with that appellation. Put differently, one had to move away from a formalist, entirely positivist (even Kelsenian) notion of the rule of law and replace it with one that would, for example, incorporate the source and procedure of authority and authorship of the legal rules and procedures, as essential components, into an understanding of the rule of law. A legal regime not validated in democratic practices and not respecting human rights would not qualify as a manifestation of the rule of law.
We may return, now, to the analysis of the Schuman declaration and the early foundations of European integration. We have already noted the conspicuous lexical and substantive absence of democracy and human rights from the original document's rhetoric and structures. Equally conspicuous is the heavy reliance on law and legal institutions. The Treaty of Paris—with its explicit reference to supranationalism—represents a radical and unprecedented exercise in the legalization of a transnational regime, far exceeding the already innovative ECHR. It involves institutions of governance, of transnational administration, of adjudication and enforcement. The political project of European integration was to be realized by an economic program (the Coal and Steel Community, European Economic Community) effectuated through and by the rule of law. Over the years, one has celebrated that audacious and fateful choice. Notably, giving such centrality to a judicial organ thus enabled the European Court of Justice and the law it administered to play in later years, years of political stagnation, the decisive role it played in the construction of European integration.
Electing to place such pronounced reliance on the law and legal institutions for the achievement of the political and economic project was not only an audacious but also a prudentially wise choice. Transnational legality helps prevent free riding and provides stability and continuity to any acquis even in periods of political instability and wavering commitment. Famously, once the constitutional revolution was effectuated through the introduction of direct effect, transnational legality harnessed individuals, pursuing their personal interests, as a powerful agent of compliance by member states with their treaty obligations.
Inevitably, however, it also meant an account of the principle of the rule of law that was old school: formalist, self-referential, and self-legitimating. Why should I obey? Either because its “the law” or because it is in the service of the self-legitimating messianic dream. Indeed, I would argue, that political messianic projects by their very nature go hand in hand with a formalist, self-referential concept of the rule of law.
It should not need saying that, here too, it is not my intention to argue any substantive similarity with the national socialist regime. The European integration project is as noble as national socialism was vile. But I am arguing that the European construct represents an interesting structural and conceptual continuity. If I am right in this characterization (and I assume it will be contested), interesting implications follow in understanding the relationship between law and politics in the narrative of European integration.
It is quite common, when assessing its jurisprudence, to cast the European Court, virtuously, in a dialectical relationship with (a typically stalling) political process. The following has been told in many, many variants over the years:
In the face of political stagnation and stasis, in the late ’60s, and a lack of “political will” (a favorite, meaningless phrase) the Court steps in and compensates with its remarkable constitutionalizing jurisprudence, virtually salvaging European integration.
In the face of a growing democratic legitimacy, the Court develops its human rights jurisprudence. Community (and Union) norms might suffer from democratic deficiencies, but at least they will be protected against violation of fundamental human rights.
In the face of the failure of the harmonization process in constructing the common market place, the Court steps in with its highly innovative doctrine of functional parallelism (mutual recognition) in Cassis, providing a jurisprudential breakthrough to move ahead.
There is more than a grain of truth in all the variants, both more and less sophisticated, of this narrative. However, in all of them, the political problem is extraneous to the Court, which, within the limits of its powers, steps in to correct that which politics and politicians are unable to do. According to this view, the Court cannot (and should not) solve all the problems, but it is always cast as part of the solution rather than part of the problem. It is tempting, particularly in the present circumstance of political challenge.
However, in the light of my thesis on the rule of law, it becomes possible to see the Court as part of the problem and not only as part of the solution. The argument is obvious enough and follows from the formalist premise of the rule of law. The very same case law, inescapably and inextricably, implicates the Court in the very issues of democratic and social legitimacy that are, at least partially, at the root of current discontent.
I want to argue, further, that the Court has responsibilities all of its own that do not even fit under the rubric of “implicated.” But before I explain this thesis I want to state clearly what I am not arguing.
My critique is not part of the argument “the Court has no legitimacy,” gouvernement des juges, and all that. I do not think Europe has or had a gouvernement des juges (whatever that means) nor do I find fundamental fault with the hermeneutics of its essential jurisprudence. On the contrary—in a deep sense, I think the Court gave effect to and sought to render effective the project of the high contracting parties as encapsulated in their respective treaties. It is, simply, that, as I have argued, the messianic project was not particularly concerned with democracy (or, at inception, human rights). It sought its legitimacy in the nobility of its cause. Thus, importantly, this critique does not have, as its purpose, to argue that the constitutional jurisprudence was a normative mistake, a road that should not have been taken. But the road taken had and continues to have consequences inherent in its messianic nature.
My approach rests on two propositions. First, it highlights a certain irony in the constitutional jurisprudence. As noted above, it was often perceived (and there are indications in the cases that it was so perceived by the Court itself) as being a response to, and part of, a broader political discourse of integration, often a response to nonfunctioning dimensions of the political process. But there has been, both by the Court itself and its observers a myopic view that has failed to explore more deeply some of the consequences and ramifications of the constitutional jurisprudence. There has been a refusal to see the way in which the essential legal order of constitutional jurisprudence is part and parcel of the political democratic legitimacy crisis. Very often one has the impression that though the political (in the sense of institutions) is well understood in relation to the case law, the social (in the sense of human dimension and communities) has been far less understood.
How then is the Court implicated in the democratic deficit and legitimacy crisis? Our starting point can be the fountainhead of this part of the constitutional jurisprudence, Van Gend en Loos itself. In arguing for the concept of a new legal order the Court reasoned in the following two famous passages as follows:
The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community.
This view is confirmed by the preamble to the Treaty which refers not only to governments but to peoples. It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and also their citizens. Furthermore, it must be noted that the nationals of the states brought together in the Community are called upon to cooperate in the functioning of this Community through the intermediary of the European Parliament and the Economic and Social Committee. (Emphasis added.)
The problem is that this “cooperation” is extremely weak. This is, in truth, a serious “dumbing down” of democracy and its meaning by the European Court. At the time, the European Parliament had the right to give its opinion—when asked, and it often was not asked. Even in areas where it was meant to be asked, it was well-known that the Commission and Council would tie up their bargains ahead of such advice, which thus became pro forma. But can that level of democratic representation and accountability, when seen through the lenses of normative political theory, truly justify the immense power of direct governance that the combined doctrines of direct effect and supremacy have placed in the hands of the then Community institutions? Surely posing the question is to give the answer. In some deep, unintended sense, the Court was giving its normative imprimatur to a caricature of democracy, not to the thing itself.
The implication of the Court of Justice in the democratic travails of the Union is easily stated even if usually uncomfortably discussed. The late Federico Mancini, in his Europe: The Case for Statehood, forcefully articulated the democratic malaise of Europe.4 There were many, myself included, who shied away from Mancini's remedy, a European state, and shied away from his contention that this remedy was the only one which was available. However, few quibbled with his trenchant and often caustic denunciation of the democratic deficiencies of European governance.
But could the Court distance itself from this malaise, so trenchantly and caustically denunciated? It is precisely on these occasions, I have argued, that I rejoice most that I am not a judge on the Court. What would I do if I felt, as Mancini did, that the European Community suffered from this deep democratic deficit, which he described so unflinchingly and which according to him could only be cured by a European State? Would I want to give effect to a principle that rendered the Community's undemocratic laws—adopted, in his words, by “numberless, faceless and unaccountable committees of senior national experts” and rubberstamped by the Council—supreme over the very constitutional values of the member states? If democracy is what one cared about most, could one unambiguously consider much of the Community edifice a major advance? Whatever the hermeneutic legitimacy of reaching supremacy and direct effect, the interaction of these principles with the nondemocratic decision-making process was and is highly problematic. Similar dilemmas would, of course, face national judges.
The paradox is, thus, that the legitimacy challenge to the Court's constitutional jurisprudence does not rest, as often has been assumed, in its hermeneutics—a good outcome based on a questionable interpretation. Rather, quite the opposite: An unassailable interpretation but with an outcome that underpins, supports, and legitimates a highly problematic decisional process. Substantively, then, the much-vaunted Community rights, which serve, almost invariably, the economic interests of individuals, were “bought” at least in some measure at the expense of democratic legitimation.
Procedurally, we find a similar story. The secret of the principle of the rule of law in the legal order of the European Union is that genius process of preliminary references and preliminary rulings. The compliance pull of law in liberal Western Democracies does not rest on the gun and coercion. It rests on a political culture that internalizes, especially public authorities, obedience to the law rather than to expediency. Not a perfect but one good measure of the rule of law is the extent to which public authorities in a country obey the decisions, however uncomfortable, of their own courts. It is by this very measure that international regimes are so often found wanting, why we cannot quite in the same way speak about the rule of international law. All too frequently, when a state is faced with a discomfiting international norm or decision of an international tribunal, it finds ways to evade them.
Statistically, as we know, the preliminary reference procedure is, overwhelmingly, a device for judicial review of member state compliance with their obligations under the treaties. It is ingenious for two reasons: First, it deploys individuals, vindicating their own rights, as the monitors and enforcers of Community obligations vis-à-vis the member states. It has been called the private-attorney-general model. And second, it deploys national courts. The judgment is spoken through the mouths of member state courts. The habit of obedience associated with national law is, thus, attached to European law. The gap between the rule of law and the rule of international law is narrowed, even closed.
However, it is precisely in this context that we can see the problematic nature of the dark side of this moon. The situation implicated in preliminary references always posits an individual vindicating a personal, private interest against the public good. Paradoxically, European rights, in some interesting way, become anticommunity rights. If the social reality of the European construct were stronger, this could be seen as mitigating such an effect. But the reality of the situation, from a social perspective, is that—for good legal reasons—the principal artifact of the rule of law in the thin political space constituted by Union places the individual at odds with his or her thicker political space. This is how it should be, legally. This is what creates the most effective compliance pull. But this is why it also contributes to the national social and political turn against the Union.
The argument about the rule of law I am trying to make is that formalist, positivist, and Kelsenian models are no longer accepted as representing meaningful and normatively acceptable forms of the rule of law, if not respectful of two conditions: rootedness in a democratic process of lawmaking and respectful of fundamental human rights. The European Court of Justice accepted the second of these conditions in an activist jurisprudence, beginning in 1969, that proclaimed that European norms not respectful of the common constitutional traditions of the member states and enshrined in the ECHR would be unacceptable. It understood that even democracies may lead to a tyranny of the majority. Its jurisprudence was bold since there was no hint of that proposition in the treaties. Indeed, when the Court decided its first cases the words human rights or fundamental rights were nowhere to be found in the treaties. There has never been, however, a similar jurisprudence as regards the decisional processes of the Union. In that respect, the Court is complicit in the status quo.
6. Defending Values
The second story, brief and rude, is usually considered a historical curiosity; however, it, too, has had a profound effect on the political culture of the Union and European Integration. I refer to the saga of the European Defence Community. A treaty was actually signed in May 1952 but failed, by a relatively small number of votes, to be ratified in the French Parliament in May 1954, and the project was abandoned.
What is most striking about this historical event is that the governments were actually able to agree among themselves on a treaty concerning this most hallowed of “sovereign” core. It made huge sense. Quite apart from the fact that, history notwithstanding, a war among the partners of the Union was an unreal possibility, this would be a very symbolic and concrete step to make it unthinkable. Even more importantly, in the face of an external threat and the ambiguity of American patronage, this project which at one and the same time brought about considerable savings while, at the same time, enhancing the defense capabilities of Europe jointly and severally.
My contention is that this “childhood” trauma has had profound effects, not just material but, principally, political and cultural. It became part of a European faith that defense, security, and military matters had to be kept separate from the European construct—in a “it is not politically feasible, it is not politically desirable” unholy alliance of arguments. It has bred amazing pathologies, not the least wasteful replications of the defense efforts of the member states coupled with a total reliance on American force. If America has become the policeman of the world, it is, in part, because Europe allowed it to become so—since, when in trouble, Europe itself would call not its own police but 911. Paradoxically, the failure to cooperate has also weakened each state individually, since the magnitude of expense simply removed certain projects from national agendas.
Even worse, Europe failed to develop, slowly and painfully, the habits of cooperation, consensus building, and the like in this field, which has remained outside the European construct. As with democratization, it has had to graft alien bodies—European Political Cooperation, Third Pillar, Common Defense and Security, et cetera.
Worst of all, Europe developed a whole new rationalization that was grafted on to the original political messianic project—the ‘civilian power’—in a questionable attempt to justify the failure of its own early project. Here, there has been a veritable spill-over also into national politics. Reasonable people can debate the extent of any existential threat to Europe. However, there can be no debate that, at times, unless one is a pacifist (a comfortable luxury when your friendly neighbor is not), the only way to prevent the worst kind of trampling on the most hallowed values might require the decisive use of force. The consequences of this failure are to be found in the graveyards of Bosnia, Darfur, and elsewhere.
7. End game
The political messianic and its concomitant corollary in a central but formal conception of the rule of law were offered not only for the sake of conceptual clarification but also as an explanation of the formidable success of European integration. They produced a culture of praxis, achievement, ever expanding agendas. Given the noble dimensions of European integration one ought to see and acknowledge their virtuous facets.
However, that is only part of the story. They also explain some of the story of the decline in European legitimacy and mobilizing pull that is so obvious in the current circumstance. Part of the very phenomenology of political messianism is that it always collapses as a mechanism for mobilization and legitimation. It obviously collapses when the messianic project fails. When the revolution does not come.
But interestingly, and more germane to the narrative of European integration, even when successful, it sows the seeds of its collapse. At one level, the collapse is inevitable, part of the very phenomenology of a messianic project. Reality is always more complicated, challenging, banal and ultimately less satisfying than the dream which preceded it. The result is not only absence of mobilization and legitimation, but actual rancor. The original Promised Land, Canaan, was a very different proposition, challenging and hostile, to the dream which preceded it. Independent India, or Kenya, or even the USA were very different to the dreams which preceded them and their like. Individually this is the story of many a marriage and love affair. Just as paradise becomes such, only when lost, The land itself, always falls short of the promise. It is part of the ontology of the messianic. The emblematic manifestation of this in the context of European integration is the difference between the 868 inspiring words of the Schuman dream and the 154,183 very real words of the (defunct) European Constitution.
However, in the case of Europe, there are additional contingent factors which explain the collapse of the messianic narrative as a mobilizing and legitimizing factor. At one level, Europe is a victim of its own success. The passage of time coupled with the consolidation of peace and the internalization of the alternative interstate discourse that Europe presented, has been so successful that to new generations of Europeans, both the pragmatic and idealist appeal of the Schuman vision seem simply incomprehensible. The reality against which their appeal was so powerful—the age-old enmity between France and Germany and all that—is no longer a living memory, a live civilizational wire. A wonderful state of affairs, in some considerable measure, is also owed to the European constructs.
At another level, much has changed in societal mores. Europe, in large part, has become a post-Christian society, and the profound commitment to the individual and his or her rights, relentlessly (and, in many respects, laudably) placing the individual at the center of political attention, has contributed to the emergence of self-centered individuals. Social mobilization in Europe is at its strongest when the direct interest of the individual is at stake and at its weakest when it requires tending to the needs of the other, as the recent euro crisis, immigration crisis, and as other like instances will readily attest. So part of the explanation for the loss of the mobilizing force of the Schuman vision is in the fact that what it offers either seems irrelevant or does not appeal to the very different idealistic sensibility of contemporary European society. The result is that if political messianism is not rapidly anchored in the legitimation that comes from popular ownership, it rapidly becomes alienating and, like the Golem, turns on its creators.
Democracy was not part of the original DNA of European integration. It still feels like a foreign implant. With the collapse of its original political messianism, the alienation we are now witnessing is only to be expected. And the formal rule of law only serves to augment the alienation. There are no easy fixes to these problems. That is the nature of problems that are not rooted in institutional arrangements but are a reflection of what has become part of a deep-seated political culture.
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