A “european convention” chaired by former French President Valéry Giscard d’Estaing recently finished drafting a new constitution for the European Union, but the parallels with the Philadelphia Convention of 1787 that this inevitably conjures up for American observers are extremely misleading. Anyone who expects the current debate over European unification to mirror the historic contest in the United States between Federalists and Anti-Federalists is quickly disabused. That was an argument about the proper locus of sovereignty and the appropriate scale of the state. Politicians can sometimes be heard voicing such concerns in Europe today, but in scholarly and intellectual circles the predominant tendency is not to argue about where sovereignty should be lodged, but to call into question the concept of sovereignty; not to argue about how big the state should be, but to wonder about whether the era of the modern state is coming to an end.
This may seem odd at a time when the modern state seems to be enjoying the hour of its greatest triumph. Virtually the entire world now consists of independent states, their number greater than ever before. And the most important global institutions, beginning with the United Nations itself, are intergovernmental organizations whose members are states, represented by the delegates of their governments. Yet there is no denying the fact that in many quarters, especially in some of the advanced democracies, there is a widespread feeling that the modern state is becoming obsolete, that it is increasingly incapable of responding to the problems of the contemporary world, and above all to the challenges posed by globalization. It is this feeling that shapes the moral and political context in which European unification is unfolding. In one sense, of course, the eu is merely a regional organization, but the debate over its future is intimately bound up with the issue of globalization.
Globalization is a subject on everyone’s lips today, not just in Europe but around the world. I am inclined to believe that recent advances in telecommunications technology and in the internationalization of markets have created a greater degree of mutual interpenetration among societies worldwide than ever existed before. But the trends that are summed up by the term “globalization” are not new. Following the rise of multinational corporations and the oil price shocks of the 1970s, many observers called attention to the idea of international “interdependence.” And some scholars have plausibly argued that there was greater international openness and mobility during the period prior to World War i than there is today. In my view, what is distinctive about the current discourse on globalization is the jaundiced view that it takes of the modern state. After having long been regarded as the culmination of political evolution and the indispensable framework for freedom and democracy, the state is now often seen as a historically contingent institution built on shaky moral foundations. […]
What, then, is the attitude toward democracy of those who proclaim the obsolescence of the nation-state and welcome the erosion of the “Westphalian” notion of sovereignty? While there are some who ignore or are indifferent to this question, it would be inaccurate and unfair to claim that this is the general view of the champions of transnationalism. There is, for example, a lively and intense debate about the eu’s “democracy deficit” or “legitimacy deficit” and how to repair it. This concern even appears prominently in the eu’s Laeken Declaration, the official document that initiated the process leading to the new draft constitution. A cynic might say that this is the defensive response of European elites, worried that disillusionment among European publics with the remote and opaque decision making of the eu may derail the entire project of “ever closer union.” But I believe that it also reflects the fact that the global prestige of the democratic principle is perhaps higher than it has ever been — notwithstanding the growing tendency to question the legitimacy of the modern state.
As a result, many students and proponents of the eu seem to be groping toward the view that the eu can become a democratic non-state. They refuse to accept the dichotomy according to which the eu must be either 1) an essentially intergovernmental organization that derives its democratic legitimacy through the national parliaments of its member states or 2) a genuine federal state that derives its democratic legitmacy through governing institutions directly responsible to the European electorate. They say, with more than a little justification, that the eu already has gone well beyond being a merely intergovernmental institution yet falls far short of being a federal state. At the same time, their argument is not that the eu has found some “middle way” between intergovernmentalism and traditional federalism but rather that its organizing principles must be understood as existing on a different plane from the continuum that runs from intergovernmentalism to federalism. Thus, they define the eu as a non-state, non-nation polity (or entity).
It may be true that so far this is largely the language of academics rather than politicians or publics, but the argument has a considerable attraction for the latter as well. First, this non-state conception appeals to a strong antipolitical disposition that is seen today in many parts of the world but is especially powerful in Europe. This disposition is reflected in the enormous prestige enjoyed by “civil society” and by “nongovernmental organizations,” as compared to political parties or to governments. One way of viewing the non-state vision of the eu is that it promises to provide governance without the need for government. Indeed, some Europeans, far from wishing to build a new kind of polity, seem to aspire to the creation of a new nongovernmental organization — the eu as the world’s largest and most influential ngo. Second, the non-state conception seems to offer a means of what is frequently referred to as “squaring the circle” — that is, building an ever closer European Union without taking away the sovereignty of member states that many Europeans continue to hold dear.
According to the classic modern doctrine of sovereignty, of course, it was regarded as impossible to maintain sovereignty in both a political union and its constituent parts. In contemporary language, one might say that the lodging of sovereignty was regarded as a kind of “zero-sum game.” Here is how Alexander Hamilton, in Federalist 15, characterizes the opponents of the Constitution drafted by the Philadelphia convention: They aim, he charges, “at things repugnant and irreconcilable; at an augmentation of federal authority without a diminution of State authority; at sovereignty in the Union and complete independence in the members. They still, in fine, seem to cherish with blind devotion the political monster of an imperium in imperio.”
A bit further on, Hamilton elaborates on what he calls “the characteristic difference between a league and a government” — namely, that only the latter can extend its authority to individuals, while the authority of the former reaches no further than to member governments. Government, according to Hamilton, involves the power not only of making laws, but of enforcing them. For if they are without sanctions, “resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.” While governments may deal with recalcitrant individuals through the “courts and ministers of justice,” there is no way a league can enforce its decisions against one of the sovereign entities that compose it without resorting to military force. Thus, in a league “every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience.”
The Federalist goes on to support this reasoning by appeals both to the nature of man and to the experience of previous confederations. Because men love power, those who exercise sovereignty are likely to resist attempts to constrain or direct them. Thus, in confederations that attempt to unite sovereign bodies, there is inevitably a centrifugal tendency for the parts to free themselves from the center. The subsequent numbers of the Federalist then explore the experience of confederations both ancient and modern. The conclusion drawn from this examination of the historical record is emphatically stated at the end of Federalist 20 (a paper sometimes attributed jointly to Hamilton and James Madison) — namely, “that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil polity, by substituting violence in place of the mild and salutary coercion of the magistracy.”
Hamilton justifies this sweeping conclusion by appealing to “experience [which] is the oracle of truth.” Yet proponents of the new views put forward by theorists of the European Union would point precisely to the experience of European integration to contradict Hamilton’s conclusions. First of all, though in many respects it seems closer to a league than to a government in Hamilton’s terms, the eu, thanks to various rulings of the European Court and their acceptance by national courts, does have authority that in important respects reaches to individuals as well as collectivities. Second, in spite of the lack of a mechanism to enforce compliance, the decisions of the eu are largely accepted by member states — and this without resort to the sword.
In fact, the eu seems to present the spectacle of constituent units obeying the dictates of the center not only without violence but even without visible coercion. In trying to understand this unprecedented phenomenon, I have found particularly helpful a formulation offered by J.H.H. Weiler, one of the most distinguished scholars of European law. Weiler argues that the eu has evolved a federal constitutional or legal structure alongside a largely “confederal” or intergovernmental political structure. In other words, Europe has accepted the “constitutional discipline” characteristic of federalism without becoming a federal state. In effect, it has become a federal non-state whose decisions are accepted voluntarily by its constituent units rather than backed up by the modes of hierarchical coercion classically employed by the modern state. In fact, the eu combines a “top-to-bottom hierarchy of norms” with “a bottom-to-top hierarchy of . . . real power.” It achieves what Hamilton would have regarded as either disastrous or impossible — the separation of law from the power to enforce it.
However accurate Weiler’s analysis may be in describing the current state of the eu, it surely raises a couple of larger questions: First, what conditions have enabled this structure to work so far, and can it continue to do so? Second, presuming that the federal non-state can continue to maintain itself, what would be the ultimate consequences for democracy?
We’ve already begun to see the breakdown of this illusion, with the refusal of France and Germany to bring their budget deficits into compliance with EU rules. There is no sovereign body that can impose budget cuts and taxes and if there were, and it tried to, it’s all too easy to imagine the Germans and French taking to the streets to defend their welfare states.