THE HEALTH OF NATIONS Part 7 pptx

the concept of european un ion 259

The macro–micro fault-line

8.65 The development ofthe European Union has been structured on

the basis ofa series ofeconomic aggregates (customs union, common

market, single market, economic and monetary union) which were

treated as hypostatic paratheses and were given legally enforceable sub￾stance, and which were accompanied by some ofthe legal-constitutional

systems and paratheses associated with liberal democracy. The assump￾tion was that a coherent society at the European level would constitute

itself‘functionally’, as it was said – that is to say, as a natural by-product

or side-effect, as it were, of the economic constitution. Unfortunately,

the negating and the surpassing ofthe Keynesian revolution and the

reassertion ofthe micro-economic focus were more or less contempo￾raneous with the founding of the European Communities.55 And the

new focus ofthe economic constitution ofadvanced capitalist soci￾eties has proved to be part ofa radical transformation ofthe polit￾ical and economic constituting ofthose societies. Liberal democracy

and capitalism were mutually dependent systems ofideas which were

successful in managing the vast and turbulent flows of energy associ￾ated with industrialisation and urbanisation in one European country

after another. Democratic systems made possible the great volume of

law and administration required by capitalism. Capitalism made pos￾sible an increase in the aggregate wealth ofa nation which was capa￾ble ofbeing distributed, unequally, among the newly enfranchised cit￾izens/workers/consumers. Post-democracy is also a post-capitalism, a

counter-evolutionary absolutism,56 an integrating ofthe political and

economic orders under a system ofpragmatic, rationalistic, managerial

oligarchic hegemony, in which law and policy are negotiated, outside

55 M. Friedman’s ‘The demand for money: some theoretical and empirical results’ was pub￾lished in 1959 (67 Journal of Political Economy (1959), 327–51; republished in M. Friedman,

The Optimum Quantity of Money and Other Essays (London, Macmillan; 1969), 111–39).

J. Muth’s ‘Rational expectations and the theory ofprice movements’ was published in 1961

(29 Econometrica (1961), pp. 315–35; republished in Rational Expectations and Econometric

Practice (London, George Allen & Unwin; 1981) pp. 3–22). 56 The intense concern ofpost-democratic governments with the problem of‘education’ was

anticipated by A. R. J. Turgot (1727–81), statesman and economic philosopher, who recom￾mended state-controlled education to the French King as the ‘intellectual panacea’ which

would make society into an efficient economic system, changing his subjects into ‘young

men trained to do their duty by the State; patriotic and law-abiding, not from fear but on

rational grounds’. Quoted in A. de Tocqueville, The Old Regime and the French Revolution

(1856) (tr. S. Gilbert; Garden City, Doubleday & Company; 1955), pp. 160–1.

260 european soc iety and its law

parliament, among a collection ofintermediate representative forms –

special interest groups, lobbyists, focus-groups, non-governmental or￾ganisations, the controllers ofthe mass media, and powerful industrial

and commercial corporations – under the self-interested leadership of

the executive branch ofgovernment.57

8.66 The contradictions ofthe European Union as institutional sys￾tem add up to a structural fault which is at the core of that system and

which we are now in a position to identify as its chronic pathology. It is a

morbidity which is preventing us from imagining the institutional sys￾tem ofthe European Union as a society. It means that its half-revolution

may yet prove to be a failed revolution.

8.67 The contradictions ofthe European Union as institutional sys￾tem can be expressed as six dialectical tensions which are acting, not

as the creative tensions ofa healthy and dynamic society, but as de￾structive tensions. (1) The tension between the macro constitutional

order ofthe Union itselfand the micro constitutional orders ofits mem￾ber states. (2) The tension between the macro economic order ofthe

Union’s economic constitution (the wealth ofthe European nation) and

the micro economic constitutions ofits member states (each an eco￾nomic aggregate in its own eyes in a traditional form of conflict and

competition with all the others). (3) The tension between the Council

as the macro agent ofthe Union’s common interest and the Council

as a quasi-diplomatic forum for the reconciling of the micro ‘national

interests’ ofthe member states. (4) The tension between two rival forms

oflocalised imperialism (macro and micro; two cities or two swords; the

Thomist duplex ordo), in the form of emerging post-democracy at the two

levels – the national post-democratic managerial oligarchy externalised

57 Post-democracy may be a fulfilment ofthe gloomy predictions ofMax Weber and ofwhat

may have been, at least according to W. Mommsen, his instinctive preference for some

combination ofrational governmental professionalism and plebiszit¨are F¨uhrerdemokratie

(plebiscitory leader-democracy). W. Mommsen, Max Weber und die deutsche Politik 1890–

1920 (Tubingen, J. C. B. Mohr; 1959), pp. 48, 420. On Weber’s discussion ofthe combining of ¨

bureaucracy and leadership, see R. Bendix, Max Weber. An Intellectual Portrait (Garden City,

Doubleday & Company; 1960), pp. 440ff. At the heart of post-democracy is something akin

to the spirit ofnineteenth-century Prussian bureaucracy. ‘The fundamental tendency ofall

bureaucratic thought is to turn all problems ofpolitics into problems ofadministration.’

K. Mannheim, Ideology and Utopia. An Introduction to the Sociology of Knowledge (London,

Routledge & Kegan Paul; 1936), p. 105.

the concept of european un ion 261

as an intergovernmental managerial poliarchy, at the level ofthe European

Union. (5) The tension between the imperialist ambition ofa macro pan￾European confederal union and the federalising ambition of a micro

political union among a limited number ofstates. (6) The tension be￾tween the ambition ofthe Union to be a single macro international

actor and the survival ofthe micro ‘foreign policies’ of its participating

governments and their separate foreign diplomatic representation.

European Union as European society

8.68 To overcome these destructive tensions, to turn them into the

creative tensions ofa dynamic society, it is necessary to bring to con￾sciousness the European society which transcends the European Union

as institutional system. It is not possible to have a legal system without

the society ofwhich it is the legal system. It is not possible to have an eco￾nomic system without the society ofwhich it is the economic system. It

is not possible to have a political system without the society ofwhich it is

the political system. Ifthe European Union already has these systems, it

follows that there is already a latent European society which transcends

them and of which we can resume the self-conscious self-constituting as

idea, as fact, and as law. We can resituate the European Union within the

long historical process ofEurope’s social self-constituting. It has been

the purpose ofthe present study to begin that process.

8.69 Given the function of law within the self-constituting of a so￾ciety, the most urgent task is the re-imagining ofthe European Union’s

legal system. Law reconciles the ideal and the real, the power ofideas and

the fact of power. Law reconciles the universal and the particular, uni￾versalising the particular (law-making) and particularising the universal

(law-applying). Law provides detailed resolutions from day to day of the

dialectical dilemmas ofsociety – the dilemmas ofidentity (legal person￾ality), power (the distribution oflegal powers), will (the actualising of

value in the form of legal relations), order (constitutionalism), and be￾coming (law-making and law-applying). Our concept ofthe European

Union’s legal system must fully and efficiently recognise and actualise

its capacity to do these things.

8.70 This means that we must: (1) recognise that the national con￾stitutional orders now form part of a general constitutional order of

262 european soc iety and its law

the European Union;58 (2) install in the European Union system the con￾trolling idea ofthe common interest ofthe Union as overriding the indi￾vidual common interests ofits constituent societies;59 (3) integrate the

urgent problems ofsocial philosophy at the two levels, to re-explain and

rejustify the future of European Union, as society and as institutional

system, with the problem ofthe exercise and control ofpublic power

at both levels;60 (4) integrate the philosophical and practical problem

ofthe self-constituting ofEuropean society with the philosophical and

practical problem ofthe globalising ofhuman society.61

8.71 The crisis facing the European Union is a crisis of social phi￾losophy, a crisis ofthe ideal self-constituting ofa new kind ofsociety

and the enactment and enforcement of a new social philosophy in and

through a new kind oflegal system. European Union, the redeeming

parathesis ofEurope’s higher unity, is not a federation or a confedera￾tion, actual or potential, but a state ofmind. It is not merely a union of

states or governments, but a unity ofconsciousness. It is a new process

ofsocial self-constituting in the dimensions ofideas, ofpower and of

law. European Union, Europe’s society, is more like a family, a family

with a common identity beyond its countless separate identities, a com￾mon destiny beyond its countless separate destinies, a family with an

interesting past, not wholly glorious and not wholly shameful, and with

much need, at the beginning ofa new century, for collective healing, to

find a new equilibrium between its past and its future.

58 This means inter alia undoing the decisions ofthose national constitutional courts which

have conceived ofthe European Union as essentially an emanation from, and inherently

subject to, national ‘sovereignty’. 59 This means inter alia undoing those decisions ofthe Court ofJustice ofthe European

Communities which have tended to substitute a concept ofaggregated or reconciled national

interest for the concept ofthe particularising ofa Union common interest. 60 This means inter alia undoing the constitutional concept (reflected in the new Article 88

ofthe French constitution or the revised version ofArticle 203 (formerly 146) ofthe EC

Treaty) which treats the EU as essentially the exercise ‘in common’ ofnational governmental

powers. 61 See further in ch. 10 below.