In an August 8 article titled “The EU Needs to Admit Mistakes” Professor Erik Jones concludes thus:
The EU has a political union that is good at making rules but bad at admitting mistakes. They exist – and we can all name them – but they are viewed as aberrations from the ideal of a rules-based organization. That is unfortunate. Europe’s political union should be better at admitting when it would be a mistake to follow the rules it makes, because admitting those mistakes is the first step in learning from them.
Mr. Jones’ analysis is cogent and insightful. The gist of his thesis is that a rules-based system that leaves little scope for discretion can be disproportionately rigid and, hence, incompatible with circumstantial needs.
I think this is the most valid criticism of the European Union and the Economic and Monetary Union as they currently stand. As I have repeatedly noted before, these are inter-state, quasi-confederal entities that, depending on the area of policy, operate in accordance with the tenet of “common rules without common politics”.
What I mean by “common politics” is the capacity of a citizenry to decide in common, following democratic principles, the best course of action for the attainment of its present and future needs. More concretely, that would entail moving beyond the current inter-governmental arrangements where it is Member States that hold real power and exercise it in accordance with narrow national interests.
Common rules are not a problem per se. They become flawed, indeed inimical to context-specific requirements, when they are insulated from the very capacity of a people to revise them after they enter into force.
Europe’s supra-national level of politics represents a certain “constitutional order”. I use quotation marks to denote the absence of a proper, codified corpus of primary law that founds a republic. The EU is the product of inter-state treaties. These serve as its primary law. It is an international organisation whose constitutional subjects are its Member States, not some European demos.
That is no mere theory of mine. It is a legal provision enshrined in the very first article of the Treaty on European Union, where the “High Contracting Parties” that agree to establish a Union among themselves are the states.
Here is the opening statement from Ar.1 TEU:
By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called “the Union” on which the Member States confer competences to attain objectives they have in common.
The five paradoxes of inter-governmentalism
The first paradox of Europe’s inter-governmental modus operandi for rule formation is that the “constitution” of the EU cannot be changed by the EU itself. No European institution, no pan-European entity of any sort can proceed with a constitutional reform. For a change to occur, the Member States have to agree unanimously. That very power substantiates their role as constitutional subjects of this order. In that sense, we can claim that, strictly speaking, the supra-national level, the “European state” so to speak, is alienated from its own legal foundation: the first case of heteronomy.
The second paradox is that common rules belong to no common entity. For instance, the rules of the Stability and Growth Pact (SGP) do not reflect the rule-forming-rule-making capacity of a single state: they are an instance of an inter-state accord. Their shared nature is one of joint commitment and partitioned accountability. All Member States are bound by the same rules. No single [European Union] state is accountable for them, with accountability being exercised only indirectly at the national level. The effect of that is that no common body of citizens can exercise scrutiny over the whole collective of decision-makers that agreed on the SGP, just as in the context of the euro-crisis none other than German citizens can hold Ms. Merkel accountable even though her administration’s policies affect non-Germans as well.
The third paradox is that European citizenship does not entail the substantive capacity for rule formation, i.e. the most fundamental of powers in a democracy: for citizens to be the constitutional subject, to act as the body that holds the authority to legitimise and to determine the form and scope of its polity. The European Parliament, the only EU institution that enjoys democratic legitimacy, has relatively little power, especially on constitutional issues. The EP cannot initiate legislation, nor can it engage in an ex post review of the Treaties for the purpose of amending them. In that regard, the political rights stemming from European citizenship are, in principle, substantively inferior to those of national citizenship.
The fourth paradox is that the scope of national citizenship is severely narrowed when it comes to EU affairs. Contrary to the constitutional order of a given republic, where citizens can change their own rules, either directly or by representation, the legal order of the Union is not contingent on the sovereign will-formation of a citizenry. To that end, while each body of citizens can proceed with the reformulation of its own polity’s qualities, it cannot, in and of itself, alter the aspect of politics/law that has a European reach. This is the second case of heteronomy, where the rules that shape the citizens’ lives are exterior, exogenous, and alien to them, always there yet always beyond their reach.
The fifth paradox is that national parliamentary control is devoid of substance on matters that are contingent on the conformity of the national government with the supra-national set of rules. Many provisions, especially those peculiar to the economic governance of the euro, are meant to be permanent and binding in nature, and have an automatic or mostly automatic application. A government conforming with its own obligations to, say, reduce its budget deficit to 3% or have no structural deficit higher than 0.5% of GDP, will be forced to cut spending or proceed with measures to raise revenues regardless of whether the parliament wants or agrees to that. In that respect, that aspect of the fiscal policy of the government cannot be questioned by the parliament insofar as its ultimate purpose is concerned. That is the third case of heteronomy, where neither the executive nor the legislative functions have genuine ownership of the rules that appear to be their own.
A mismatch of sovereignty
I have claimed that the European Union’s most fundamental flaw is its sovereignty mismatch. Contrary to any given republic, where there exists a positive feedback loop between the sovereign will-formation of the citizens and sovereign will-realisation of their respective state, the EU has “common governance” on certain areas of policy without the virtuous cycle of legitimation that makes modern democracy what it is.
Because we have neither a European demos nor a European kratos (state), we are left with a sub-optimal, quasi-confederal system that produces multifaceted heteronomy, and which inevitably and by its very design engenders technocracy or instances thereof. The end result is a system that debases democratic life, even though it should enhance and expand it.
Constitutional matters tend to be the most remote, the most abstract if you will. Yet as we have witnessed time and again, especially in the context of the euro-crisis, they are by far the most important when we come to realise that inter-governmentalism and the inter-state constitutional nature of the EU impose severe constraints on our capacity as citizens to exercise our autonomy, be it at the national or the supra-national level.