Year XXXVII, 1995, Number 2 - Page 114




A paper in the last issue of The Federalist, in a wide-ranging survey of the present state of European integration, commented that the European Union is not legitimate.[1] This argument, while seemingly straightforward, has a number of quite extensive implications.
I propose to examine it in the light of two observations, each of which will illuminate an aspect of federalist strategy towards the IGC in 1996.
To start with, we have to define what we mean by legitimate. In one sense, of course, only a truly federal system of government can claim to be legitimate. However, to assert that, at any time, only perfection is good enough is to render political debate useless. In fallible human society, we are looking for ways in which the ordering of affairs can be improved. A doctor does not reject a potential cure because it will not give his patients immortality.
Legitimacy, then, may be found in something less than a federation.
It is common for legitimacy to be defined empirically, that is by attempting to ascertain whether or not a political system has the support of its people in practice. This approach is useful, but is still not quite sufficient for it leaves no scope for the presence of ideology. As an ideologue myself, I will treat as legitimate a political system that ought to be supported by its people.
That “ought to” will in turn be identified in a political system which maximises the extent to which it resembles or makes possible federalism (and not necessarily federation) at any moment in time.
Such a political system should be distinguished from the parties and governments that inhabit it. It is the political system to which legitimacy attaches, based upon rules, written and unwritten, principally found in a constitution.
It has long been recognised that a constituent assembly is the only modern means of creating a new constitution: it is the only way of bestowing legitimacy upon such a document.[2]
The Philadelphia Convention of 1787 is perhaps our model for such a process; as well as being the first, it also produced a federation. It is of a convention such as this that Tom Paine writes. The absence of such a convention in the development of the British constitution led him to denounce that country’s government in the terms that he did: “From the want of a constitution in England to restrain and regulate the wild impulse of power, many of the laws are irrational and tyrannical, and administration of them vague and problematical.”[3]
This view of the British system of government cannot be let pass without comment. Tom Paine himself was writing in response to Edmund Burke’ s Reflections on the Revolution in France.[4] That was, and remains, a classic statement of English conservatism; in constitutional terms, it has much still to say.
Returning to my definition of legitimacy – the best that is possible at the time – popular constitutional conservatism plays a large part in defining what is possible.
The British constitution has changed significantly since the 1790s, eliminating many of Tom Paine’s criticisms, but without a defining constitutional moment. It is a sad fact that, in constitutional terms at least, many people prefer what they know to what they do not, the evident flaws of what they know notwithstanding:
“And always keep a hold of Nurse
For fear of finding something worse.”[5]
As with the British constitution, so with the European. If Germany has given the European Union a model for a central bank and if France has given a model for a civil service, Britain has given a model for a constitution. While the Treaty of Rome established the basic lines along which the government would run, in no way does it adequately describe the way in which the Union works now. The Single European Act introduced Qualified Majority Voting in the Council and overcame the national demands for a veto, the Maastricht Treaty bestowed important new powers on the European Parliament.
These are significant and dramatic steps, but do not result from equivalently significant and dramatic processes. Inter-governmental conferences have not attracted the same attention as constituent conferences would have done, and nor do they deserve to.
The advances towards federalism that are possible following an IGC are much fewer than those that might arise from a constituent assembly. The problems caused by too much nation state influence in Europe are not so apparent to those in power in those nation states than to those who are their victims. The reduction in the size of the problem naturally results in the reduced scale of the proposed solution. The exclusion of the public from the constitutional process inevitably limits the possible outcome of that process.
In that sense, the writers of the Maastricht Treaty got it exactly right. The referendum results in Denmark and France prove that no greater advance towards federalism could have resulted from the twin IGCs of 1991.
Let us return to the question with which I started. Is the European Union legitimate?
The absence of a defining constitutional moment does not of itself mean that it is not. The British political system, which to any rational observer is riddled with holes and the potential for corruption, nonetheless retains its legitimacy. Parties advocating constitutional reform are growing in importance (because one important party is slowly adopting such a programme) but the continuing legitimacy of the system has two consequences.
First, opponents of the system will still contest it on its own terms: the electoral system is the most famous but by no means the only example of this. Secondly, the proposals for reform that are made are still limited by the conditions to which people have grown used.
For democratically minded people in Britain, these two obstacles are matters of regret but they indicate the legitimacy of the system by which they are governed. The British people are famously conservative in constitutional terms and it would be quite wrong to assume that the people of Europe as a whole are necessarily the same. But the difference in this regard does not matter. The point is that the people are broadly content with what they have got. The system of government is still regarded as legitimate: its laws are obeyed; its taxes are paid.
It is interesting to note that in the parts of the EU where this does not happen so consistently, this is due to a contempt for the exercise of any political power and not just that of the European institutions.
Parties advocating the status quo or something very similar dominate elections at both European and national level in most of Europe. The treaty amendments they sponsor are in general ratified by overwhelming parliamentary votes and by narrow referendum victories. The idea that the status quo is tolerable is false, to be sure, but that is the state of public opinion with which federalists have to work. For there does not exist within the federalist ranks a Lenin, seeking to bring forward federation in Europe in defiance of public opinion.
The first conclusion to note in this discussion of the legitimacy of the EU is therefore that federalists should not raise their expectations too high: the 1996 IGC will not produce radical reforms. If it were likely to do so, national governments would not have called it; it were to do so, popular opinion might well reject it.
Demands for radical change will come from those who are excluded from the constitutional process rather than from those who are included within it. An important part of any federalist strategy must be to harness those people, to raise those voices. For it is from them that calls for significant progress will come.
It should be noted at this juncture that the legitimacy of the EU is becoming called into question because of the extension of its powers. The fact that many of its policies are ineffective is secondary to the fact that it operates such policies at all. The EU is attempting to create a “European” consciousness among its citizens, hoping to provide new legitimation for a political structure that plays an ever larger part in their lives, just as Jürgen Habermas noted that it would.[6]
For the most part, the federalist movement itself has gone along with this broad pro-EU stance, because of the promise of what the EU can achieve. This has been a matter of controversy historically; progress towards federalism in the last ten years has won over most of the lingering doubters.
That progress – principally the Single European Act and the Maastricht Treaty – has amounted to a substantial reduction in national sovereignty and the transfer of considerable power to supranational institutions. No federalist can look at that and not see the seeds of future reforms. The problem we face is how to achieve them. Again, the concept of the nearest we can get to federalism comes into play.
The most striking recent development in the debate in advance of the IGC has been the famous paper by Wolfgang Schäuble and Karl Lamers.[7] The publication of this document has transformed the debate. It has proposed a significant advance towards a supranational system of parliamentary democracy and, most importantly, it has suggested that this will be possible only within a restricted number of countries. The existing union of 15 states has reached the end of its useful life.
The proposal for supranational parliamentary democracy is of course attractive to federalists. Such a political system would lie at the heart of a European federation. Part of the reaction of the federalist movement to the Schäuble/Lamers paper has been one of relief that a significant political force somewhere in Europe has taken the idea of supranational parliamentary democracy to heart. But what that paper has not taken to heart is federalism.
This is the second point to note. The debate about which countries should be included in the hard core and which should not – admittedly one of considerable interest – has obscured perhaps the more important debate of what principles the hard core itself will be based on. It is clear that those principles will not include federalism.
The very nature of a hard core operating a system of supranational parliamentary democracy means that those states not within the hard core will lose influence and control over some areas of common interest. That in itself does not have to be a problem. What it does propose, though, is a radical change of direction. There has been broad support for the EU as it is presently constituted, as we have seen. The EU which has attracted that support embodies two principles: a gradual progression towards democracy (broadly on the British model); and a gradual expansion in territorial extent.
The Schäuble/Lamers proposals opt for the former principle at the expense of the latter. In essence, they conclude that the strategy of progressive enlargement of the EU over the years has been a mistake.
Once more, that is not in itself a problem. What is the problem is the way in which this proposal has emerged.
The earlier conclusion that the IGC in 1996 will not produce radical proposals still holds. A proposal to break up the European Union and create something new would not be the result of public debate and understanding: it would arise out of the failure of politicians to agree. It would be borne in acrimony between different countries, in the hatching of an inter-governmental plot.
That is something that cannot carry legitimacy. It is in no sense a constituent process, nor will it possess the legitimacy of time in the manner of the present EU. An IGC cannot produce an acceptable radical solution. The Schäuble/Lamers proposals cannot represent the nearest thing to federalism that can be accepted: they will be rejected.
This means that the question of whether or not the EU is legitimate opens out into a discussion of how a federation can be achieved. That is inevitable. After all, federalists never consented to the EU on the grounds that it was an end in itself; its value lies primarily in what else it makes possible.
The fundamental problem is a mismatch between ends and means. The ends we desire are not attainable by the means we have been offered. (The demands of the UEF adopted at its Congress in October 1994 recognise this problem: the IGC is only an intermediate step before the launch of the constituent process.[8])
The authors of the hard core proposal have perhaps encountered the fundamental problem of legitimacy in the context of the European Union. The EU itself has a certain legitimacy drawn from what it has provided for its people and, crucially, what it can provide in the future. In this sense, therefore, the EU has a legitimacy that the IGCs which built it do not.
Richard Laming

[1] Guido Montani, “European Citizenship and European Identity”, in The Federalist, XXXVI (1994), p. 95.
[2] For example, see Lucio Levi, “Recent Developments in Federalist Theory”, in Three Introductions to Federalism, The Altiero Spinelli Institute for Federalist Studies, 1989.
[3] Tom Paine, Rights of Man (1792), Harmondsworth, Penguin Books, 1969.
[4] Edmund Burke, Reflections on the Revolution in France (1790), Harmondsworth, Penguin Books, 1987.
[5] Hillaire Belloc, “Jim”, from Cautionary Tales, 1907.
[6] Jürgen Habermas, Legitimation Crisis, 1975.
[7] Wolfgang Schäuble and Karl Lamers, Reflections on European Policy, 1994.
[8] UEF, “European Union Reform and Constitution”, in The Federalist, XXXVII (1995), p. 50.



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