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Max Planck Encyclopedia of Public International Law [MPEPIL]

European Integration

JHH Weiler

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 May 2019

Subject(s):
Regional organizations

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

European Integration reflects both the telos and ethos for which the European ‘construct’—the various European Communities and the extant European Union—were established. Part of that telos and ethos are reflected in the particular ‘method’ adopted by the architects of the process. In this entry the focus will be on those features rather than the institutional set up or material economic provisions of the European Union and its constituent Treaties. Deciphering the political and juridical codes of Europe is the key to an understanding of European Integration both as an end and means.

A.  Origins: Political Culture

In the evolving political history of Europe through the 20th century, European Integration emerges after World War II as the most recent project of political ‘messianism’ (see also European Union, Historical Evolution). It presented a powerful image of peace and prosperity as a justification for action. Its mobilizing force derived 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. Mark Mazower, in his brilliant and original history and historiography of 20th-century Europe, 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, Italy, and Russia and even Britain and France). It then oscillated after the War towards new democratic orders; that is to process legitimacy, which then oscillated back into new forms of political messianism in fascism and communism. After World War II, 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, 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.

By contrast, in their common venture, European Integration, was a political messianic venture par excellence, the messianic becoming a central feature of its original and enduring political culture. The mobilizing force and principle legitimating feature was the vision offered, the dream dreamt, and the promise of a better future. It is this feature which explains not only the persistent mobilizing force (especially among elites and youth) but also key structural and institutional choices made. It will also give more depth to explanations of the current troubling circumstance of and in Europe.

The Schuman Declaration issued on 9 May 1950 ([1980] 13 Bulletin of the European Communities 14–5), 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, establishing the European Coal and Steel Community (ECSC), 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. European Integration is, of course, nothing like its European messianic predecessors—that of monarchies and empire and later fascism and communism. It is liberal and noble, but its politically messianic features define in part its unique political identity.

The messianic feature is notable in both its rhetoric and substance. 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 [which] 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.

The substance too is messianic: a compelling vision which has animated generations of European idealists where the ‘ever closer union among the people of Europe’, with peace and prosperity is an icing on the cake, constituting the beckoning promised land. It is the messianic model which explains (in part) why for so long the Union, realizing the project of European Integration 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 for the Protection of Human Rights and Fundamental Freedoms (1950), but the Union itself did not. They had to prove their democratic credentials, but the Union itself did not.

In its original and unedited version the declaration is quite elaborate in operational detail. But you will find neither the word democracy, nor human rights. It’s a ‘Lets-Just-Do-It’ type of programme 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 has from its inception 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 many 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. The narrative of Europe is 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 Committee of Permanent Representatives [‘COREPER’]), an elitist (if well-paid) vanguard, were 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 most of its life, it has been a champion of European Integration, to the extent that, inevitably, when the Union created fears (only natural in such a radical transformation of European politics) the European Parliament did not feel the place citizens would go to express those fears and concerns.

The principal material instrument used to realize the project was economic. The principal systemic instrument was law.

10  Economically, European Integration followed a path of a deepening and widening form of market integration, beginning with the narrow, but symbolically important sector of coal and steel, and then moving to the economy as a whole. First through the progressive establishment of a common market place which allowed the free movement of all factors of production and then by an aggressive programme of harmonization of the principal disciplines of the regulatory State with the culmination in the creation of economic and monetary union including a European Central Bank (ECB) and a common currency in which a majority of the Member States participate. Fiscal authority was largely left in the hands of the Member States. The tension between Monetary Union and Member State fiscal sovereignty is a source of severe governance issues at times of asymmetrical recession putting strains on European Integration.

B.  The Constitutional Framework—the Uniqueness of European Integration

11  Law played an important role in the evolution of European Integration charting a new and original form of ‘federalism’ which encapsulates the original method and the deepest values of the construct.

12  In the vision of the great thinker and teacher of federalism, the late Dan Elazar the federal principle should not be confused with its specific manifestation in the federal State (Elazar 3). Echoing the same thought, Pescatore, the Marshall of European Law, observed:

[T]he methods of federalism are not only a means of organising States. [F]ederalism is a political and legal philosophy which adapts itself to all political contexts on both the municipal and the international level, wherever and whenever two basic prerequisites are fulfilled: the search for unity, combined with genuine respect for the autonomy and the legitimate interests of the participant entities. (at ix–x)

13  It is, thus, not surprising that comparisons between the distinct federalisms in North America and Europe have constituted a staple feature in the on-going discussion concerning European Integration (see, eg Bowie and Friedrich; Macmahon for early comparative analyses in the formative years. For subsequent analyses of the more mature system see, eg Sandalow and Stein; Cappelletti, Seccombe and Weiler; Lenaerts). Institutional arrangements have attracted a great deal of attention because of the apparent divergence of the European experience from the typical federation: in contrast with the classical model of the federal State, and despite considerable refinements, Europe’s institutional structure still adheres to the original supranational design of Commission-Council-Parliament and continues to guarantee a decisive voice in European governance to the governments of the Member States. The formal empowerment of, say, the European Parliament over the years has been counterbalanced by informal empowerment of the Medusa-like Council. For its part, the Commission has had to struggle to preserve its own weight in the decisional process. Though superficially (and to some, optimistically) one could compare the Commission to a federal Executive Branch, the Council to a Senate type State chamber and the Parliament to a popular chamber, the realities of an intergovernmental Europe are still forcefully in place. To use somewhat archaic language of statecraft, institutionally European Integration is closer to the confederal than it is to the federal.

14  Constitutional arrangements, by contrast, have attracted considerable comparative attention because of their apparent convergence with the experience of the federal State. Typically federations allocate certain powers to federal institutions and typically, policies and laws emanating from the exercise of such power are the supreme law of the land, meaning they are the law of the land in the sense of operating without the intermediary of local government and in cases of conflict they trump conflicting norms. Federal State constitutions create, always, a vertical hierarchy of a triple nature: a hierarchy of norms which, in turn, is rooted in a vertical hierarchy of normative authority which, in turn, is situated in a hierarchy of real power. Despite many original intentions, federations end up with a concentration of both constitutional and institutional power at the federal level.

15  As a result of a combination of express Treaty provisions, such as those stipulating that certain types of Community legislation would be directly applicable (originally Art. 189 Treaty establishing the European Economic Community [signed 25 March 1957, entered into force 1 January 1958] 294 UNTS 17; Treaties, Direct Applicability); of foundational principles of international law, such as the general principle of supremacy of treaties over conflicting domestic law, even domestic constitutional law (compare Art. 27 Vienna Convention on the Law of Treaties [1969]; see also Oppenheim’s International Law vol I 84–85; European Community and Union Law and Domestic [Municipal] Law) and of the interpretations of the European Court of Justice (see generally Weiler [1999]; European Union, Court of Justice and General Court), a set of constitutional norms regulating the relationship between the Union and its Member States (or the Member States and their Union) has emerged which is very much like similar sets of norms in most federal States. There is an allocation of powers (which as has been the experience in most federal States has often not been respected) there is the principle of the law of the land (in the EU called ‘direct effect’) and there is the grand principle of ‘supremacy’ every bit as egregious as that which is found in the American Federal Constitution itself.

16  Put differently, the constitutional discipline which Europe demands of its constitutional actors—the Union itself, the Member States and State organs, European citizens and others—is in most respects indistinguishable from that which you would find in advanced federal States.

17  But there remains one huge difference: Europe’s constitutional principles, even if materially similar, are rooted in a framework which is altogether different. In federations, whether American or Australian, German or Canadian, the institutions of a federal State are situated in a constitutional framework which presupposes the existence of a ‘constitutional demos, ’ ie a single pouvoir constituant made of the citizens of the federation in whose sovereignty, as a constituent power, and by whose supreme authority, the specific constitutional arrangement is rooted. Thus, although the federal constitution seeks to guarantee State rights and although both constitutional doctrine and historical reality will instruct us that the federation may have been a creature of the constituent units and their respective peoples, the formal sovereignty and authority of the people coming together as a constituent power is greater than any other expression of sovereignty within the polity and hence the supreme authority of the Constitution—including its federal principles.

18  One of the great fallacies in the art of ‘federation building’ as in nation building, is to confuse the juridical pre-supposition of a constitutional demos with political and social reality. In many instances, constitutional doctrine presupposes the existence of that which it creates. The demos which is called upon to accept the constitution, is constituted, legally, by that very constitution and often, that act of acceptance is among the first steps towards a thicker social and political notion of constitutional demos. Thus, the empirical legitimacy of the constitution may lag behind its formal authority—and it may take generations and civil wars to be fully internalized—as the history of the US will testify. Likewise, the juridical presupposition of one demos may be contradicted by a persistent social reality of multiple ethnoi or demoi who do not share, nor grow to share, the sense of mutual belongingness transcending political differences and factions, and constituting a political community essential to a constitutional compact of the classical mould. The result will be an unstable compact as the history of Canada and modern Spain will testify. But, as a matter of empirical observation, I am unaware of any federal State, old or new, which does not presuppose the supreme authority and sovereignty of its federal demos.

19  In Europe, that presupposition simply does not exist. Simply put, Europe’s constitutional architecture has never been validated by a process of constitutional adoption by a European constitutional demos and, hence, both as a matter of normative political principles and empirical social observation, the European constitutional discipline does not enjoy the same kind of authority which may be found in federal States where their federalism is rooted in a classic constitutional order. It is a constitution without some of the classic conditions of constitutionalism. There is a hierarchy of norms—Community norms trump conflicting Member State norms. But this hierarchy, is not rooted in a hierarchy of normative authority nor in a hierarchy of real power. Indeed, European federalism is constructed with a top-to-bottom hierarchy of norms, but with a bottom to top hierarchy of authority and real power.

20  This could result in perennial instability. Instead, one of the virtues of the European construct is that it produces not only a salutary normative effect but also a surprisingly stable political polity. Member States of the European Union accept their constitutional discipline with far more equanimity than, say, Quebec. There are, surely, many reasons for this, but one of them is the peculiar constitutional arrangement of Europe.

21  This distinct constitutional arrangement is not accidental. Originally, in a fateful and altogether welcome decision, Europe rejected the federal State model. In the most fundamental statement of its political aspiration, indeed of its very telos, articulated in the first line of the Preamble of the Treaty of Rome and reflected in all subsequent Treaties including the current Lisbon Treaty, the gathering nations of Europe ‘[d]etermined to the lay the foundations for an ever closer Union of the peoples of Europe’. Thus, even in the eventual promised land of European Integration, the distinct peoplehood of its components was to remain intact—in contrast with the theory of most, and the praxis of all, federal States which predicate the existence of one people. Likewise, with all the vicissitudes from Rome to the defunct ‘constitution’ to the current Lisbon Treaty, the Treaties have not departed from their original blueprint as found, for example, in Art. 2 EC of the Treaty in force, of aspiring to achieve ’ economic and social cohesion and solidarity among Member States’ (emphasis added). Not one people, then, nor one State—federal or otherwise.

22  Europe has been relaunched twice in recent times: in the mid-80s the Single European Act introduced, almost by stealth, the most dramatic development in the institutional evolution of the Community achieved by a Treaty amendment, ie majority voting in most domains of the Single Market. Maastricht, in the 90s introduced the most important material development, EMU. Subsequent Treaties, such as Amsterdam, Nice, and Lisbon have not fundamentally altered this arrangement, with the exception, perhaps, of the inclusion of a Charter of Fundamental Rights. Architecturally, the combination of a ‘confederal’ institutional arrangement and a ‘federal’ legal arrangement seemed for a time to mark Europe’s Sonderweg. It appeared to enable Europe to square a particularly vicious circle: Achieving a veritably high level of material integration comparable only to that found in fully fledged federations, whilst maintaining at the same time—and in contrast with the experience of all such federations—powerful, some would argue strengthened, Member States (see three classics: Milward; Hoffmann; Moravcsik).

23  The Constitutional Debate which occupied the first decade of the new Century ended with defeat. Part of the case for the formal Constitution was said to be a concern for the legitimacy of the European construct. Normatively, the disturbing absence of formal constitutional legitimation for a polity that makes heavy constitutional demands on its constituent Members was, it was claimed, problematic.

24  Conceptually, the disquiet with the current European constitutional arrangement must be understood against a European Constitutional discourse which for years has been dominated by a strange combination of Kelsen and Schmitt. It is Kelsenian in its attempts, under many guises, to describe, define, and understand the European Grundnorm—the source whence the authority of European constitutional disciplines derives. The search for this Kelsenian holy grail (whether or not acknowledged explicitly) underscores a vast majority of the academic literature theorizing European constitutionalism. And this holy grail is, typically, understood in Schmittian terms: The search is for the ultimate source of authority, the one that counts in the case of extremity, of conflict (whether the Grundnorm is internal to the legal order or outside it, is a contested matter: insightful in this genre is Eleftheriadis). That is the true criteria of the real Grundnorm.

25  Early ‘Europeanists’ liked to argue that the Grundnorm, typically expressed in, say, the principle of supremacy of European law over national law in case of conflict, had shifted to the ‘central’ or ‘general’ power, ie to Europe. That view is less in fashion today and is contested by those who point out that, both in fact and in law, ultimate authority still rests in national constitutional orders which sanction supremacy, define its parameters, and typically place limitations on it.

26  And yet, it is the status quo, the extant unique brand of European constitutional federalism which represents not only its most original political asset but also its deepest set of values.

C.  The Principle of European Constitutional Tolerance—Concept and Praxis

27  The reason the question of ultimate authority and constitutional Grundnorm seem so important is that the integrity of our national constitutional orders not simply as a matter of legal obedience and political power, but of moral commitment and identity is at stake. Our national constitutions are perceived as doing more than simply structuring the respective powers of government and the relationships between public authority and individuals or between the State and other agents. Our constitutions are said to encapsulate fundamental values of the polity and this, in turn, is said to be a reflection of our collective identity as a people, as a nation, as a State, as a Community, as a Union. When we are proud and attached to our constitutions we are so for these very reasons: they are about restricting power not enlarging it, they protect fundamental rights of the individual, and they define a collective identity which does not make us feel queasy the way some forms of ethnic identity might. Thus, in the endless and tiresome debates about the European Union constitutional order, national courts have become in the last decade far more aggressive in their constitutional self-understanding. The case-law is well known. National courts are no longer at the vanguard of the ‘new European legal order, ’ bringing the rule of law to transnational relations, and empowering, through EC law, individuals vis-à-vis Member State authority, but instead standing at the gate and defending national constitutions against illicit encroachment from Brussels. They have received a sympathetic hearing, since they are perceived as protecting fundamental human rights as well as protecting national identity. To protect national sovereignty is passé; to protect national identity by insisting on constitutional specificity is à la mode. The Lisbon judgment of the German Federal Constitutional Court ([30 June 2009] BVerfGE 123, 267) is but the latest instalment in this saga.

28  Thus, on this new reading, to submit to the constitutional disciplines of Europe without a proper Kelsenian constitution, which formally vests in Europe Schmittian ultimate authority, is not only something that contradicts an orderly understanding of legal hierarchy but also compromises deep values enshrined in the national constitution as well as a collective identity which is tied up with these values. Indeed, it is to challenge the idea of constitution itself.

29  Miguel Maduro, one of the most brilliant of the new generation of European constitutional thinkers, gives eloquent expression to this concern:

European Integration not only challenges national constitutions …; it challenges constitutional law itself. It assumes a constitution without a traditional political community defined and proposed by that constitution…. European Integration also challenges the legal monopoly of States and the hierarchical organisation of the law (in which constitutional law is still conceived of as the ‘higher law’). (Maduro 175. Maduro himself does not advocate a European constitution. I cite him simply for his striking diagnosis of the issue. It is superior to my own clumsy attempt to formulate the dilemma as a ‘Constitution without Constitutionalism, ’ as ‘doing before hearkening’[Weiler 1995])

30  Is this challenge so threatening? In part it is. Modern liberal constitutions are, indeed, about limiting the power of government vis-à-vis the individual; they do articulate fundamental human rights in the best neo-Kantian tradition; they do reflect a notion of collective identity as a community of values which is far less threatening than more organic definitions of collective identity. They are a reflection of our better part.

31  But, like the Moon, like much which is good in life, there is here a dark side too. It is, first, worth listening carefully to the rhetoric of the constitutional discourse. Even when voiced by the greatest humanists, the military overtones are present: we have been invited, to develop a patriotism around our modern, liberal, constitutions. The constitutional patriot is invited to defend the constitution. In some States we have agencies designed to protect the constitution whose very name is similar to our border defences. In other countries, we are invited to swear allegiance to the constitution. In a constitutional democracy we have a doctrine of a fighting democracy—whereby democratic hospitality is not extended to those who would destroy constitutional democracy itself. To be a good constitutional liberal, it would seem from this idiom, is to be a constitutional nationalist and the constitutional stakes are not only about values and limitations of power but also about its opposite—the power which lurks underneath such values.

32  Very few constitutionalists, and practically no modern constitutional court will make an overt appeal to natural law. Thus, unlike the ‘constitution’ in the parable, the formal normative authority of the constitutions around which our patriotism must form and which we must defend is, from a legal point of view, mostly positivist. This means that it is as deep or shallow as the last constitutional amendment—in some countries, like Switzerland or Germany not a particularly onerous political process. Consequently, vesting so much in the constitutional integrity of the Member State is an astonishing feat of self-celebration and self-aggrandizement, of bestowing on ourselves (in our capacity of constituent power) a breathtaking normative authority. Just think of the near sacred nature we give today to the constitutions adopted by the morally corrupted societies of the World War II Generation in, say, Italy and Germany and elsewhere.

33  A similar doubt should dampen somewhat any enthusiasm toward the new constitutional posture of national courts which hold themselves out as defending the core constitutional values of their polity, indeed its very identity. The limitation of power imposed on the political branches of government is, as has been widely noticed, accompanied by a huge dose of judicial self-empowerment and no small measure of sanctimonious moralizing. Human rights often provoke the most strident rhetoric. Yet constitutional texts in our different polities, especially when it comes to human rights, are remarkably similar. Defending the constitutional identity of the State and its core values turns out in many cases to a defence of some hermeneutic foible adopted by five judges voting against four.

34  Finally, there is also in an exquisite irony in a constitutional ethos which whilst appropriately suspicious of older notions of organic and ethnic identity at the very same time implicitly celebrates a supposed unique moral identity, wisdom, and, yes, superiority, of the authors of the constitution, the people, the constitutional demos, when it wears the hat of constituent power and, naturally, of those who interpret it.

35  It was Samuel Johnson who suggested that patriotism was the last refuge of the scoundrel. He was, of course, only partly right. Patriotism can also be noble. But it is an aphorism worth remembering when we celebrate constitutional patriotism, national or transnational, and rush to its defence from any challenges to it. How, then, do we both respect and uphold all that is good in our constitutional tradition and yet, at the same time, keep it and ourselves, under sceptical check?

36  The current constitutional architecture (which of course can be improved in many of its specifics) encapsulates one of Europe’s most important constitutional innovations, the Principle of Constitutional Tolerance.

37  The Principle of Constitutional Tolerance, which is the normative hallmark of European Federalism, must be examined both as a concept and as a praxis. First, then, the concept. European Integration has been, historically, one of the principal means with which to consolidate democracy within and among several of the Member States, both old and new, with less than perfect historical democratic credentials. For many, thus, democracy is the objective, the end, of the European construct. This is fallacious. Democracy is not the end. Democracy, too, is a means, even if an indispensable means. The end is to try, and try again, to live a life of decency, to honour our creation in the image of God, or the secular equivalent. A democracy, when all is said and done, is as good or bad as the people who belong to it. The problem of Haider’s Austria is not an absence of democracy. The problem is that Austria is a democracy; that Haider was elected democratically, and that even the people who did not vote for him are content to see him and his party share in government. A democracy of vile persons will be vile.

38  Europe was built on the ashes of World War II, which witnessed the most horrific alienation of those thought of as aliens, an alienation which became annihilation. What we should be thinking about is not simply the prevention of another such carnage. That’s the easy part and it is unlikely ever to happen again in Western Europe though events in the Balkans remind us that those demons are still within the continent. More difficult is dealing at a deeper level with the source of these attitudes. In the realm of the social, in the public square, the relationship to the alien is at the core of such decency. It is difficult to imagine something normatively more important to the human condition and to our multicultural societies.

39  There are two basic human strategies of dealing with the alien and these two strategies have played a decisive role in Western civilization. One strategy is to remove the boundaries. It is the spirit of ‘come, be one of us’. It is noble since it involves, of course, elimination of prejudice, of the notion that there are boundaries that cannot be eradicated. But the ‘be one of us’, however well intentioned, is often an invitation to the alien to be one of us, by being us. Vis-à-vis the alien, it risks robbing him of his identity. Vis-à-vis one’s self, it may be a subtle manifestation of both arrogance and belief in my superiority as well as intolerance. If I cannot tolerate the alien, one way of resolving the dilemma is to make him like me, no longer an alien. This is, of course, infinitely, better than the opposite, exclusion, repression, and worse. But it is still a form of dangerous internal and external intolerance.

40  The alternative strategy of dealing with the alien is to acknowledge the validity of certain forms of (non-ethnic) bounded identity but simultaneously to reach across boundaries. We acknowledge and respect difference (and what is special and unique about ourselves as individuals and groups) and yet we reach across differences in recognition of our essential humanity. What is significant in this are the two elements I have mentioned: on the one hand, the identity of the alien, as such, is maintained. One is not invited to go out and, say, ‘save him’ by inviting him to be one of you. One is not invited to recast the boundary. On the other hand, despite the boundaries which are maintained, and constitute the I and the Alien, one is commanded to reach over the boundary and accept him, in his alienship, as oneself. The alien is accorded human dignity. The soul of the I is tended to not by eliminating the temptation to oppress but by learning humility and overcoming it.

41  The European current constitutional architecture represents this alternative, civilizing strategy of dealing with the ‘other’. Constitutional Tolerance is encapsulated in that most basic articulation of its metapolitical objective in the Preamble to the EC Treaty mentioned earlier in this encyclopedia entry:

Determined to lay the foundations of an ever closer union among the peoples of Europe.

42  No matter how close the Union, it is to remain a union among distinct peoples, distinct political identities, distinct political communities. An ever closer union could be achieved by an amalgam of distinct peoples into one which is both the ideal and/or the de facto experience of most federal and non federal States. The rejection by Europe of that One Nation ideal or destiny is, as indicated above, usually understood as intended to preserve the rich diversity—cultural and other—of the distinct European peoples as well as to respect their political self-determination. But the European choice has an even deeper spiritual meaning.

43  An ever closer union is altogether more easy if differences among the components are eliminated, if they come to resemble each other, if they aspire to become one. The more identical the ‘other’s’ identity is to my own, the easier it is for me to identify with him and accept him. It demands less of me to accept another if he is very much like me. It is altogether more difficult to attain an ‘ever closer union’ if the components of that Union preserve their distinct identities, if they retain their ‘otherness’ vis-à-vis each other, if they do not become ‘one flesh’, politically speaking. Herein resides the Principle of Tolerance. Inevitably I define my distinct identity by a boundary which differentiates me from those who are unlike me. My continued existence as a distinct identity depends, ontologically, on that boundary and, psychologically and sociologically, on preserving that sentiment of otherness. The call to bond with those very others in an ‘ever closer union’ demands an internalization (individual and societal) of a very high degree of tolerance. Living the Kantian Categorical Imperative is most meaningful when it is extended to those who are unlike me.

44  In political terms, this Principle of Tolerance finds a remarkable expression in the political organization of the Community which defies the normal premise of Constitutionalism. Normally in a democracy, we demand democratic discipline, ie accepting the authority of the majority over the minority only within a polity which understands itself as being constituted of one people, however defined. A majority demanding obedience from a minority which does not regard itself as belonging to the same people is usually regarded as subjugation. This is even more so in relation to constitutional discipline. And yet, in the Community, we subject the European peoples to constitutional discipline even though the European polity is composed of distinct peoples. It is a remarkable instance of civic tolerance to accept to be bound by precepts articulated not by ‘my people’ but by a community composed of distinct political communities—a people, if you wish, of others. I compromise my self-determination in this fashion as an expression of this kind of internal (towards myself) and external (towards others) tolerance.

45  Constitutionally, the Principle of Tolerance finds its expression in the very arrangement which has now come under discussion: a federal constitutional discipline which, however, is not rooted in a statal type constitution.

46  Constitutional actors in the Member State accept the European constitutional discipline not because as a matter of legal doctrine, as is the case in the federal State, they are subordinate to a higher sovereignty and authority attaching to norms validated by the federal people, the constitutional demos. They accept it as an autonomous voluntary act, endlessly renewed on each occasion, of subordination, in the discrete areas governed by Europe to a norm which is the aggregate expression of other wills, other political identities, other political communities. Of course, to do so creates in itself a different type of political community, one unique feature of which is that very willingness to accept a binding discipline which is rooted in and derives from a community of others. The Quebecois are told: in the name of the People of Canada, you are obliged to obey. The French or the Italians or the Germans are told—in the name of the peoples of Europe, you are invited to obey. In both constitutional obedience is demanded. When acceptance and subordination, is voluntary, and repeatedly so, it constitutes an act of true liberty and emancipation from collective self-arrogance and constitutional fetishism—a high expression of Constitutional Tolerance.

47  The Principle of Constitutional Tolerance is not a one way concept—it applies to constitutional actors and constitutional transactions at the Member State Level, at the Union Level, and among the Member States too. This dimension may be clarified by moving from concept to praxis, to an examination of Constitutional Tolerance as a political and social reality.

48  It is most present in the sphere of public administration, in the habits and practices it instils in the purveyors of public power in European polities from the most mundane to the most august. At the most mundane administrative level, imagine immigration officials overturning practices of decades and centuries and learning to examine the passport of Community nationals in the same form, the same line, with the same scrutiny of their own nationals. A similar discipline will be practiced by customs officials, housing officers, educational officials, and many more subject to the disciplines of the European constitutional order.

49  Likewise, a similar discipline will become routine in policy setting forums. In a myriad of areas, be it a local council or a parliament itself, every norm will be subject to an unofficial European impact study. So many policies in the public realm can no longer be adopted without examining their consonance with the interest of others, the interest of Europe.

50  The judicial function, too, ranging from the neighbourhood giudice conciliatore to the highest jurisdictions becomes part of the narrative: European law, the interest of others, is part of the judicial normative matrix.

51  The examples chosen are both daily and commonplace but also overturn what until recently would have been considered important constitutional distinctions. This process operates also at Community level. Think of the European judge or the European public official, who must understand that in the peculiar constitutional compact of Europe, his decision will take effect only if obeyed by national courts, or if executed faithfully by a national public official, both of whom belong to a national administration which claims from them a particularly strong form of loyalty and habit. This, too, will instil a measure of caution and tolerance.

52  What defines the European constitutional architecture is not the exception, the extreme case which definitively will situate the Grundnorm here or there. It is the quotidian, the daily practices, even if done unthinkingly, even if executed because the new staff regulations require that it be done in such a new way. This praxis habituates its myriad practitioners at all levels of public administration to their concealed virtues.

D.  The Tensions of European Integration

53  The political messianic culture and the constitutional architecture offer an explanation of the formidable success of European Integration but also for its current challenging circumstance. They produced a culture of praxis, achievement, and ever expanding agendas. Given the noble dimensions of European Integration one ought to see and acknowledge their virtuous facets. They also explain some of the story of decline in European legitimacy and mobilizing pull which 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 inevitably collapses—for 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 rancour. The promised land, Canaan, was a very different proposition to the dream which preceded it. Independent India, or Kenya, or even the US were very different to the dreams which preceded them and their like. 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. 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.

54  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 which are not rooted in institutional arrangements but are a reflection of what has become part of a deep-seated political and legal culture.

Select Bibliography

  • RR Bowie and CJ Friedrich (eds), Studies in Federalism (Little Brown Boston 1954).
  • AW Macmahon (ed), Federalism: Mature and Emergent (Doubleday Garden City 1955).
  • H Kelsen ‘On the Pure Theory of Law’ (1966) 1 IsLR 1–7.
  • DJ Elazar (ed), Self Rule/Shared Rule (Turtledove Ramat Gan 1979).
  • P Pescatore ‘Foreword’, in T Sandalow and E Stein (eds), Courts and Free Markets vol 1 (Clarendon Oxford 1982) ix–x.
  • S Hoffmann ‘Reflections on the Nation-State in Western Europe Today’, in L Tsoukalis (ed), The European Community: Past, Present and Future (Blackwell Oxford 1983) 21–37.
  • M Cappelletti M Seccombe J Weiler (eds) Integration Through Law: Europe and the American Federal Experience (De Gruyter Berlin 1985–88) vols 1–5.
  • K Lenaerts (ed), Two Hundred Years of US Constitution and Thirty Years of EEC Treaty: Outlook for a Comparison (Story-Scientia Brussels 1988).
  • R Jennings A Watts (eds) Oppenheim’s International Law vol 1, Peace (9th ed Longman London 1992).
  • AS Milward The European Rescue of the Nation-State (Routledge London 1992).
  • JHH Weiler ‘“… We Will Do, And Hearken” (Ex. XXIV: 7): Reflections on a Common Constitutional Law for the European Union’, in R Bieber and P Widmer (eds), The European Constitutional Area (Schulthess Zurich 1995) 413–68.
  • PZ Eleftheriadis ‘Aspects of European Constitutionalism’ (1996) 21 ELR 32–43.
  • C Schmitt The Concept of the Political (University of Chicago Press Chicago 1996).
  • PZ Eleftheriadis ‘Begging the Constitutional Question’ (1998) 36 JComMarSt 255–72.
  • MP Maduro We, The Court: The European Court of Justice and the European Economic Constitution (Hart Oxford 1998).
  • M Mazower Dark Continent: Europe’s Twentieth Century (Allen Lane London 1998).
  • A Moravcsik The Choice for Europe (Cornell University Press Ithaca 1998).
  • JHH Weiler The Constitution of Europe (CUP Cambridge 1999) 10–101.
  • JHH Weiler ‘The Promised Constitutional Land’ (2001) 12 Kings College Law Journal 5–16.
  • JHH Weiler ‘In Defense of the Status Quo: Europe’s Constitutional Sonderweg’, in JHH Weiler and M Wind (eds), European Constitutionalism Beyond the State (CUP 2003) 7–23.

Select Documents

  • Charter of Fundamental Rights of the European Union (done 7 December 2000, entered into force 1 December 2009) (2001) 40 ILM 266.
  • Lisbon judgment of the German Federal Constitutional Court ([30 June 2009] BVerfGE 123, 267).
  • Schuman Declaration (9 May 1950).
  • Treaty on European Union (signed 7 February 1992, entered into force 1 November 1993) [1992] OJ C191/1 (Maastricht Treaty).
  • Treaty Instituting the European Coal and Steel Community (signed 18 April 1951, entered into force 23 July 1952) 261 UNTS 140.
  • Treaty of Nice Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts (signed 26 February 2001, entered into force 1 February 2003) [2001] OJ C80/1.
  • Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community (signed 13 December 2007, entered into force 1 December 2009) [2007] OJ C306.