In a number of recent articles and addresses, the President of the European Court of Justice has observed that the EU operates outside the paradigms of the nation-State. The consequences of his conclusion are as far-reaching for the theorisation of the EU as the findings of Galilei and the substitution of the heliocentric model for the Ptolemaic world vision of the past have been for science. Yet, his repeated analysis has hardly been noticed by international lawyers and political theorists.
Guest blog by Jaap Hoeksma.
Paradigmatic blindness
The academic disregard of the EU’s breakaway from the prevailing template in International Relations, known as the Westphalian system, may well be attributed to paradigmatic blindness. The founding fathers of the present EU are certainly not to blame! At the start of the process of European integration, they stated their intentions as clearly as possible. After two devastating world wars within 30 years on European soil, they wanted to break the vicious circle of war by trying to secure the survival of ‘the Old Continent’. In the words of Schuman they wanted to make the renewed outbreak of war between them not only unthinkable but also materially impossible. Elaborating this line of thought, the founding states expressed their intention in the preamble to the 1951 Treaty of Paris, establishing the European Coal and Steel Community, to pursue a ‘henceforward shared destiny’. They envisaged to attain their goal by ‘pooling sovereignty’ over coal and steel as indispensable materials for the conduct of war.
Theoretical implications
In hindsight, it seems hardly comprehensible that the theoretical implications of these entirely unprecedented decisions should not have been noticed. From the conceptual point of view, the founding states abandoned the sacrosanct principle of absolute sovereignty which the Westphalian system of International Relations had emphasized since its emergence in the aftermath of the Middle Ages. Admittedly, they did so ‘in a limited field for a limited period of time’ but after they had experienced that it was possible for states to share the exercise of sovereignty without losing statehood, they decided to broaden the scope of their experiment to the whole of the economy. They signed the Treaty of Rome in 1957 with the explicit intention to ‘establish the foundations of an ever closer union between the European peoples’ and invited other democratic European states to join their experiment. By restricting participation in their endeavour to democratic states, they underlined their conviction that the pooling of sovereignty is only feasible among democratic states. Hence, it may be concluded that they replaced the perennial hostility between absolutely sovereign states of the Westphalian system with the solidarity and mutual trust required for the construction of an ever closer union among the peoples of Europe.
The State or IO-frame
Despite the unmistakable clarity of the foundational declarations political theorists continued to study the emerging polity through the lens of the paradigm which the new and so far unidentified entity had wilfully and purposely abandoned. While the federalists and the intergovernmentalists propagated diametrically opposed views about the political finality of the process of European integration (Sarmiento 2026), they agreed on the Westphalian dogma that it would have to result in either the creation of a federal State or in the establishment of a confederal Union of States. Consequently, realists in International Relations perceived the process as a zero-sum game in which the gains of one party implied the losses of other participants, while unitarian federalists insisted that the polity first had to evolve into a State before it could function as a European democracy. This shared prejudice prevented them from observing that the EC/EU was crafting its own path towards the envisaged ‘ever closer union’ in defiance of Westphalian dogma’s. In fact, scholars created the State or Union of States-frame in the debate about the political finality of European integration which was to hamper its spontaneous evolution into a democratic union of democratic states.
A Union of democratic states which also constitutes a democracy of its own
The gap between theory and practice of European integration was further widened in the wake of the 1973 Declaration on European Identity. The watershed of this official policy statement drafted by the Member States in relation to the traditional template was that they not merely identified themselves as ‘a Union of democratic States’ but added their intention to make their Union as democratic as they had promised each other to be and to remain. While the -by then 9- Member States triggered the democratisation of the polity per se, the federalists criticised its democratic deficit. For their part, the intergovernmentalists contributed to the widening of the gap by insisting that it is principally impossible for unions of states to be democratic. Even after the introduction of EU citizenship in 1992 and of the values of the Union in 1997, the American political theorist Dahl cited the EU as proof for his thesis about the irreconcilability of international organisations and democratic governance. At the height of the euro-crisis, his American law colleague Weiler underlined in the same vein that ‘democracy is not in the legal DNA of the EU’.
The need for a democratic theory of European integration
The EU has paid a high price for the academic failure to establish the nature of the beast. Scholarly prejudice prevented political theorists and international lawyers from observing the original paradigm shift implemented by the founding fathers at the start of the experiment and the subsequent democratisation of the EU. As a result, the Union and its British proponents were unable defend the EU against the allegations of the Leave-campaign that it had turned into a Fourth Reich from the yoke of which the UK had to be liberated.
A decade onward, the European Union has increasingly come under attack from internal and foreign forces. Yet, the EU still does not have a democratic theory of European integration 70 years after the signing of the Treaty of Rome by 6 democratic states. If the polity wants to face both the challenges from within, notably posed by the surge of far-right parties, and those posed by autocratic regimes, the EU should embrace its constitutional identity as a democratic union of democratic states, while political theorists should finally pay attention to the observations of the EUCJ-President concerning the Union’s paradigm shift and underpin the functioning of the Union as a European democracy with a democratic theory of European integration.
For further reading: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5386112