On Europe: federation and republic

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About Jakub Jermář

Jakub is a software engineer. He loves history and is a contributor to free and open source software. On the political front, he is the translator of the European Federalist Papers into Czech. His views on Europe, expressed through blogs, seminars, and social media, are outright federalist. The current model of the European Union does not conform with his ideal. It is a confederation, not a union of citizens. Jakub holds a Master's degree in Computer Science from the Faculty of Mathematics and Physics of Charles University in Prague, Czech Republic.

About a year ago, Jakub and I had an exchange of views on the notion of the European Union as a confederation. In the meantime, not much has changed in terms of the overall architecture of the EU. What applied then continues to do so. European integration is a gradual, slow process. It will take at least a couple of years from now to even have some concrete results on ‘Brexit’, let alone the prospect of far-reaching amendments to the Treaties.

In that regard, this very discussion could be considered superfluous at first sight. We still examine the same or closely-related items. And we do not concern ourselves with the day-to-day politics, important as those may be. Our focus is on the broader issues, those magnitudes that remain more-or-less constant. The definitive features of the EU.

But this discussion is no mere rewording of our previous one. A year in a researcher’s life is long enough for the evolution of their ideas. Writing for myself here, since November 8, 2015 I have published three books, two of which are specifically about the EU, while the third and most recent one is more theoretical (though could still be read in light of European politics).

My understanding is that Jakub can make a similar claim on intellectual evolution. On November 19, 2016 he delivered a seminar on federalism to JEF members. I believe there are some new or otherwise refined arguments in there. From the slides he presented, there is one (no.14) which outlines a model for distinguishing federations from confederations. It also doubles as a guide for mapping political views on the outlook of the EU. That in itself is a major contribution.

With this discussion, we have the chance to tackle anew at least some of the themes peculiar to the concept of a European federation or federal republic. Both Jakub and I can put forward our theses in anticipation of arriving at some sort of a synthesis.

On a technical note, this article is organised in thematic sections. These cover the following questions:

Is there a European people? Can the demos qualify as such without being self-conscious?
Are there federalist solutions for the EU? Can ‘Treaty change’ transform the current model into an altogether different entity, say, a federal republic?
How may historical claims on sovereignty as national be overcome? Can there be an outright European union of citizens given the normative function of nation states?

On the presence of the European demos

PROT. In your presentation you suggest—if I read it correctly—that the quintessence of a federation is that it is a union of citizens. Sovereignty rests in the people. They are the ones to confer it to institutions and arrangements thereof through a constitution. The public bodies are, in that regard, performing the functional role of rendering concrete the will of the people. There is no way where the authorities have claims on sovereignty in and of themselves.

I find this approach to be most interesting, if anything for the mere fact that it stands in contradiction to the ‘traditional’ view of sovereignty as national. By that I refer to the tenet which treats the nation as the impersonal agency of sovereign will. The magnitudes of “nation” and “people” are distinct in that regard, or at least they could be interpreted as such. The nation is a broader concept. It has a transcendent nature. It is not bound by time. It is not rendered manifest in any one person. To use Platonic discourse, an individual is an ‘instance’ of the abstraction that is the nation. All individuals combined continue to be as much just like all instances of Beauty, Justice, Likeness etc. do not equal Beauty, Justice, Likeness etc. as such, for aggregates are not absolute. In more concrete terms, the nation encompasses past, present, and future generations of the people in addition to their specific historical-cultural values—to what we may practically label as their “constitutional identity”.

Couched in those terms, we can appreciate the reasoning behind Article 3 of the Declaration of Human and Citizen Rights (1789) (in French Déclaration des droits de l’homme et du citoyen):

The principle of all sovereignty resides essentially in the nation. No body, no individual can exercise authority which does not emanate expressly from it (my translation).

My point is this: Europe is a continent with multiple nation states. These are historical constructs that embody in various ways the aforementioned worldview. And so we have Germans as distinct from the French, Italians from the Dutch, Portuguese from the Hungarians, and so on. Against this backdrop, can we apply the notion of “We the people” directly on those living across Europe? Can we consider them a nation? And, above all, do they themselves think of their social-political lifeworld as that of members of this pan-European people?

I would like to have your thoughts on that set of questions, because I think your approach is that of accepting the historical nations as givens in order to forge a civic identity therefrom. So you say “We the citizens of [names of nation states]”.

JAKUB. We need to ask what is the purpose of “the nation”. Is it something that can stand alone without “the people” or is it rather an empty shell on its own?

During and after the American Revolution a common theme was to say that the ultimate end of the government is the happiness of the governed (i.e. the people). We can find bits of and variations on this in Paine’s Common Sense, Jefferson’s Declaration of Independence, Hamilton’s and Madison’s Federalist, the US Constitution and numerous public speeches and other texts of the era.

I am quite fond of this attitude which puts the emphasis on “the people” and takes it away from “the state” or “the nation”. The people establish their government and become one body politic for some common good. Why take pride in a nation or state if life there is a misery? That would be a failure of the whole endeavour and should prompt the people to attempt to reform their government.

Maybe I am generalising here too much, but it seems that the happier countries in the world focus on defining and seeking the common good of the people whereas the less happy ones tend to put an emphasis on the nation and search for differences to separate them from other nations. “The people” is more concerned with the present citizens, because the past ones don’t care anymore and the future ones will have their own say in shaping their government later. “The nation”, as you say, is transcendent, so it is basically eternal and not much subject to change.

When stressing that a federation is a union of citizens, I am saying that it is essentially a republic. Just as the European “nation states” (well yes, we have some constitutional monarchies too—we can try considering them a special sort of republics) are. As such, it is a projection of the will of the people and so are the current nation states. With regard to nation states, we have inherited the current situation. We can change it or keep it. Changing our government at this level involves one extra step besides the one needed to create a republic on our common level.

The distinction between Germans and French, Italians and Dutch, etc. can again be looked at from two different angles. The first angle is that of Europe of nation states functioning as a straitjacket that confines one to one’s nation state and makes it impossible for one to change anything about it. Such Europe makes claims of exclusivity on one’s identity. The second angle is Europe of citizens that happen to live under different jurisdictions (German or French etc.) They can choose the jurisdiction under which they want to live simply by attaining new citizenship (and thus becoming part of the new people) and moving to another place. They, as the masters of their own destiny, can also find some common new identity rooted in their common needs and create a new jurisdiction that will exist in parallel to their existing jurisdictions and identities.

For this to happen, the citizens need to be aware of such a possibility. When you live in a straitjacket that makes claims of exclusivity on your identity, such a realisation may be difficult if not impossible to make. Another precondition is the existence of some common good around which the new identity, the new people should form. I think there is a problem with the former rather than with the latter in the present Europe. When you have educated citizens who are not hostages of their own nation states and who can agree with the citizens of the other nation states on creating a new level of government for their common goals, they write themselves down a constitution. At that precise moment, they become one political people, a demos.

Treaties cannot deliver a federation

PROT. You suggest that the way EU politics are now conducted gives rise to a certain order that cannot be undone from its own mechanisms. Treaty change, no matter how thorough, will not deliver a federation qua union of citizens. That makes perfect sense. It is an analytical statement after all, in that it further explains the very practice of amending the Treaties. These are inter-state covenants. There is no direct involvement of the European people. Amending the Treaties is not tantamount to a constitutional convention.

Here I have two comments, one regarding the gist of your argument, the other about tactics or political outlook.

I agree with the salient point. The European integration process has some intrinsic qualities that cannot be overcome from within. Namely gradualism and intergovernmentalism. Without going into the technicalities, the present order is founded on nation states as a form of broadened international cooperation. The Treaties do provide for a more complex distribution of competences than the ‘typical’ inter-state agreement, though the primacy of nation states and their expression through intergovernmentalism, is not contested. But even intergovernmentalism is not among equals. Votes in the Council of the EU (the co-legislative institution) are in accordance with demographics (which also is the case in the Parliament). More populous countries thus have a permanent advantage in both ‘chambers’ of the legislature (and beyond as in the case of the European Central Bank’s capital key or the European Stability Mechanism’s core capital which translate into weight of votes or contribution).
While I find this system to be suboptimal, I can understand the reasons behind its formation as such. The recent history of Europe as one of nation states cannot be ignored. There never was a vision for establishing a European federation. All they wanted to do was deepen their economic ties. Over time some normative elements have been included to the EU corpus, but these remain either underdeveloped or not fully enforceable. For citizens who recognise these issues and who would rather opt for a federation, what should our approach towards this system be? Should we be anti-EU? Or have a more nuanced stance with elements of reformism and abolitionism? My concern is that we may oppose something bad in expectation of substituting it with something better, but without a very clear alternative—and plan to implement it—chances are we will end up even worse off.

What would your approach be?

JAKUB. There is a chance that educated, open-minded people who are fully aware of their potential to take care of their common good in the best way possible—by creating a republic (and thus a federation)—will decide not to take that step and will want to continue with the current setup. That’s certainly a possibility. We will never know if that possibility is real until all possibilities are seriously considered, until our citizens reach the understanding and awareness suggested above and finally, somebody asks them about it.

So far, the European citizens have been presented with (and also asked about) only one possibility: Europe of nation states that to some extent cooperate with each other. The extent varies according to who is proposing it (EU sceptics vs. EU optimists), but it still remains isomorphic to a confederation. What is alarming is that sometimes someone will try to dress a confederation (league of states, intergovernmental system) into a federation’s clothes, adding much confusion to the debate and working against the goal of citizens’ full understanding.

It should be said—and I have said that repeatedly—that continuing with the present system or even deepening it will not get us any closer to a federation. Quite the contrary. It will get us closer to a more integrated (or loose) confederation, but will not make the European Union isomorphic to a federation. Not even if we artificially increase the involvement of the citizens in the functioning of the EU or reform the EU’s institutions. Those are only comforters that prevent us from reaching the real goal, which should be a real democracy on the European level: a republic / a federation. The ultimate power will still lie in the nation states and not in the European citizens.

Now, I understand that there is a lot of inertia in thinking about the EU. There has been a tremendous amount of energy invested in this project so the common sentiment among the pro-EU people, many of whom consider themselves federalists (!!!), is against throwing all of that away and starting anew with a real federation. Also the politicians from the member states and in the European Parliament are not going to help with a federation due to their vested interests in the EU. In a federation they are going to lose power. But throwing all of the EU away is exactly what needs to be done. Orderly. When there is a ratified federal constitution to switch to. We need to stop trying to cultivate the EU in favour of seriously talking about a federation. There is nothing to wait for. The longer we linger in this EU limbo, the longer it will take for the federation to come about.

Mutual recognition and normativity of nation states

PROT. I want to bring up a jurisprudential concept, though without going into a legalistic tangent. The entire body of European law, the very functioning of the EU, is based on the presumption that all Member States share the same core values. These concern democracy, the rule of law, and fundamental rights (which, strictly speaking, are three distinct categories), though they do extend to every area of policy where the Union is competent. Mutual trust and recognition are a prerequisite for any kind of activity or policy with a cross-border dimension. If a Member State does not trust that its neighbour abides by the European legal-normative standard, then the entire system may fall into disrepute or even jeopardised. To give an example, Justice and Home Affairs issues, such as the European Arrest Warrant can only work if the state supposed to extradite a suspect indeed believes that the country of destination will respect fundamental rights, such as fair trial. Without that belief, the EAW may not work.

Where I am going with this is to the normative claims of nation states. I alluded earlier to the concept of “constitutional identity”. This can be understood as a historically instituted-and-accepted set of values that are taken as givens in that national tradition. In Germany, for instance, the institutional independence of the central bank—the Bundesbank—was treated as near-sacrosanct long before such a provision was enshrined in the EU Treaties. Similarly, the federal constitutional court of Germany has stood by its key institutional function in the context of the German basic law, to the extent where it even interprets the legality of European policies by assessing their compatibility with the national constitution.¹

We see in such cases and more generally that the nation state has some deep rooted claims on its ethical role. And this typically implies a commitment to a certain nationality or national culture. Which, by the by, brings us back to the perceived transcendence of “the nation” as a distinct category from “the people”.

I suppose a European federation would assume a similar role, whereby the federal level itself embodies and implements a certain constitutional identity. To that end, I see a certain tension, which I outline as follows:

the federation is a union of citizens, not nation states;
nation states cannot have an ethical role in and of themselves, since it is the people who enforce it, inter alia, through the constitution;
this presupposes that the people are, from a moral-political perspective, homogeneous, so that indeed the constitutional identity is discrete, recognisable;
at the scale of Europe at-large the European people which will found the federation must also have a minimum of homogeneity of the sort here considered;
without such a foundation the federation cannot assume the ethical role of the nation state(s), as there is no necessary basis for it.

The kind of moral threshold that applies within nations must thus be extended throughout Europe. Similarly, we may then be able to speak of mutual trust and recognition between different sections of this emergent people. The key, I think, is homogeneity. Though not of language or origin. But of civic-political values and outlook.

Do you think we have that? Or, to put it in the context of current politics, does the EU contribute to the formation of such an identity?

JAKUB. I think this will be guaranteed by the assumed existence of some common interests around which the federation is formed. Those could not exist without some basic shared values. So the federal citizens are to be expected to be homogeneous with regard to these shared values and common interests and heterogeneous with regard to other things. This is no wonder, because a federation is on its federal level a single republic, pretty much like any unitary republic. The difference is only in the number of the republican levels of government.

For an alternative

I wish to thank Jakub for his thoughtful comments and insights. I enjoy such exchanges of views. They are didactic. Most helpful for revising, refining, developing ideas.

What we may gather as the gist of this article are the following points:

A European demos is self-instituted as such through the creation and ratification of a constitution for the European federation/republic.
Europe is, in general terms, on a cultural-historical path of reifying the nation as an impersonal agency of political will. This manifests in a European integration process whose normative foundation is the construct of the nation state. An EU edifice with intergovernmentalism as its midpoint. To overcome the present inertia, the focus must shift to “the people” irrespective of their national background.
The EU essentially is a union of nation states, not citizens, real people. The complexity of European politics just contributes to the overall confusion between a genuine federation (republic) and the federal system (isomorphic to a confederation) that is the EU.
A federalist, properly so called, must seek to dissolve the EU in an orderly fashion. A republic, a union of citizens, would be established in its stead.

A case in point are the ‘unconventional’ measures of the ECB known as the Outright Monetary Transactions. The European Law Blog’s analysis offers a good guide. [^]