Res publica and European Democracy

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Update April 5, 2016: For a more up-to-date analysis, see seminar European constitutional order and res publica.

Gerald-Christian Heintges (@geirchris), a friend of mine and fellow European republican/federalist, brought to my attention a 2011 publication from Gothenburg University’s Professor Ola Zetterquist, titled “A European res publica”. The author concludes with the following (emphasis my own):

The EU is not a state but it is a form of government that secures important values that have been the focus of state power ever since the Roman republic. If a republican view is taken where law and government are designed to secure freedom as non domination and law as a coherent recta ratio we could move beyond the monolithic Swedish conception of democracy and welcome the fact that we have become members of a European republic, with a European res publica.

In the present essay, I provide an extended commentary on the themes covered in that study and on topics that may be closely related to the ideas therein. As a general remark, I may state that I disagree with the professor on their conclusion, which is predicated on their thinking of the res publica as a value that indeed exists prior to and independent from a republic. My assertion is that the common good, for it to be truly common, can only be properly grasped and formulated, not just once but continuously, within the milieu of a constituted polity, a democracy functioning in accordance with the rule of law.

Democracy as the principle of self-rule

It is often claimed that Athens is the birthplace of democracy. Indeed there was a period in time, when ancient Athens was at its prime, where decisions concerning the state were adopted by the demos: a group of people—citizens—enjoying the right to participate in the decision-making processes that determined the governance of their city (women, slaves, metics, freed slaves were excluded from citizenship).

Though the ancient Athenians had proto-democratic processes for collective action, their polity lacked a credible framework of values and rules for capturing and promoting the general good in line with practical reason. The system was thus not robust to abuse, often culminating in the kind of arbitrariness that, inter alia, sentenced Socrates to death and forced Aristotle to flee the city.

Because of its inherent lack of adequate safeguards, the will of the many could—and did—become tyrannical. Since we are using a Greek term for popular rule, we might as well note the word for mob-rule: ochlocracy.

Its well-known shortcomings notwithstanding, the Athenian paradigm can prove fecund and be important to our thinking, not so because it introduced majority voting among citizens, but because it dared to strip authority of its mystical pretences on divinity, to demystify and to humanise it by virtue of applying the principle of autonomy (self-rule).

[I recommend studying the work of French philosopher Cornelius Castoriades, especially his book The Imaginary Institution of Society]

The institutions of the polity were not justified by means of divine providence or by the operation of some other transcendental item. They were rather understood as being anchored in the very capacity of humans to collectively shape their inter-subjective relations, including the sub-stratum of norms within which these could occur.

In my view and with the benefit of historical hindsight, the democracy of ancient Athens provides us with at least three important insights:

autonomy: authority cannot be divorced from popular will, for rule may then become exogenous to those being ruled (heteronomy);
continuity: the exercise of self-rule, for it to remain autonomous, has to be continuous, otherwise demagogues or the prevailing conditions may force oscillations between ochlocracy and tyranny;
democratic sovereignty: popular sovereignty, expressed in the rule by the many, is a necessary but not sufficient condition for a democratic state, meaning that for it to function properly, it needs to be complemented by and interoperate with state sovereignty, realised in a nexus of rules and institutions that frame the exercise of authority, while preventing arbitrariness.

Freedom in a nominal context

As a former libertarian (anarchist influenced by the Austrian School of economics), I used to subscribe to the view that human is born free and that any piece of law can only be a restriction on individual liberty. The work of Murray Rothbard, among others, reinforced my idea that the only acceptable kind of legislation is one which documents a “negative freedom” (freedom from), practically codifying the quintessential anarchist principle of non-aggression.

I was, in other words, thinking that liberty, narrowly conceived as individual liberty, starts as a maximum quantity of sorts that inexorably diminishes within the milieu of political affairs.

Having shifted to a much more eclectic position, I find such a narrative to be largely erroneous. At first, it disregards the very fact that human is always in a circumstantial condition of dependence. Agency is not transcendental, it is not prior to or beyond the specifics, but contextual, so that the “self” manifests as a situational agent and/or patient.

As a child, human depends on adults for their very survival. As an adult, they remain dependent on other humans for almost every kind of activity. Just think of how many people an “ordinary consumer” relies on when they go to buy their groceries: on the market owner opening their shop, on the suppliers bringing in the goods, on the producers having delivered on their labour, on there being regulations in place for food safety and concomitant standards, on the payment systems working properly, on there being a financial sector for making payments possible, on there having been technological advances to make payments efficient etc.

The division of labour, apart from providing an insight into how a market functions, does also entail the notion of inter-dependence. Each person focuses on a fraction of all there is, trusting in others to deliver their own part in what eventually emerges as a whole. It also furnishes an early understanding of the contextuality of agency, since a given person is supplier in a certain setting and consumer in another.

Instead of thinking of liberty as a magnitude that diminishes within social life, I think we should reverse the direction. Liberty is made available and expanded upon within the social/political milieu. The decontextualised human qua absolutely free agent is a romanticised chimera, and I would argue that such a being, deprived of the common good delivered by the polity, would lead a harsh, brutish existence.

Freedom is, in this sense, an emergent quality. In its quantitative emanation, it opens up to the individual a broader set of possibilities through ever-expanding networks of inter-subjective relations (e.g. the economy). Qualitatively, it is in and with law that an individual or group thereof may be protected from arbitrary rule. The very presence of a market is the product of social-cultural institutions, such as the principle of private property (apart from the res publica the Romans had the res privata).

Arbitrariness, by virtue of its underlying exceptionalism, of being ad hoc and unbridled, cannot be a universalisable value, and therefore cannot partake of the rationality necessary for rendering an item as common in a multitude. Put differently, the res publica is good so long as it is common, and should remain common so as to be good.

If we combine this with the idea of autonomy as demystified authority, we reach an appreciation of the political as the nominal, as that milieu of intersubjective and interobjective relations which frames and determines human(s) beyond the natural context in which they may be immersed in.

By that, I mean that there is no decontextualised person qua agent of individualism, be it in its anarchic or more liberal conception, for there always exists a milieu, which however is not limited to the natural world, to the forces of natural determinism, but rather extends to the nominal world that humans create among themselves (language, social roles, aesthetic values, political norms, etc.).

While on the subject of inter-dependence, we may note that the typical individualist view of agency conveniently omits the role of parents, especially mothers, on the formation of subjectivity. As a certain strand of continental feminist philosophy correctly points out, this is patriarchy in disguise. From the feminist eZine, we get the following summary of Julia Kristeva’s and Kelly Oliver’s work on the matter:

The mother—child relationship, contrary to patriarchal thought, is not an animal relationship; rather, it is the precursor for all social relationships. Our first relationship is one of dependence on a caring being who nurtures us to become more autonomous. This autonomy is the product of loving relationships. This view of autonomy differs dramatically from classical liberalism, wherein autonomy is invoked to protect us from paternalism. The legacy of classical liberal thought is for us to be suspicious of dependency, rather than celebrate how early attachment and dependency on the mother lays the foundation of our adult self.

Democratic sovereignty

In the past I used to conceive of politics as a horizontal layer where “popular sovereignty” is—or should be—made manifest. Having become more synthetic in my reasoning, I find a certain truth in the Hobbesian (from Thomas Hobbes) understanding of the sovereign state as a political order that remains free from interference.

A “free people” without a strong state, will either descend into a kind of ochlocracy which may then turn into a tyranny of sorts or will run the risk of being dominated by those who do not partake in their magma of principles and beliefs.

As with the ancient Athenian polis that did have a form of popular sovereignty, the Hobbessian conception of state sovereignty is a necessary yet insufficient condition for a democratic polity. Such a state is only perceived as free in a negative sense, in juxtaposition to some other state. This does not entail the normative claims on self-rule, nor does it expand the notion of the common good as something beyond peace and security.

My synthesis of democratic sovereignty therefore consists of “popular sovereignty” as rule by the people and “state sovereignty” in the form of an independent polity. These two are, in my view, consubstantial and connatural. If any of the two is absent we witness a sovereignty mismatch, that may satisfy any of the following two basic possibilities or permutations therein:

where popular sovereignty is present, without there being any—or sufficient—state sovereignty, an ochlocracy or tyranny of sorts will eventually emerge;
where state sovereignty is present but is not underpinned by popular sovereignty, tyranny or various forms of illiberal and ever-restricting forms of governance may be established.

No real European res publica

Professor Zetterquist makes a cogent argument for the EU to be considered as a legal order that is independent from that of its Member States, and that, therefore, the European res publica already exists, being ultimately interpreted by the Court of Justice of the EU (CJEU).

While established on a kernel of truth, I find this view to be rather problematic. The judiciary does indeed have an important function to perform in interpreting the laws and in upholding the practical morality that underpins the legal order. Yet we should not remain oblivious to the fact that courts emerge through human covenant, they are by-products of autonomy as materialised in the creation and ratification of constitutional law, thus not being independent from the framework of primary rules within which they operate.

And there lies the problem: the primary law of the EU consists of inter-state treaties. When thinking of inter-state affairs, we had better not perceive of them as substantively equivalent to popular deliberations within a single body politic. Inter-governmentalism, which still is the default modus operandi of the EU, as I have analysed over an extended series of articles on this website, presupposes—indeed rests on—the inherently nationalist (pro-nation-state) world-view of “us” versus “them”, of conflicts of interest that inevitably coagulate along national lines.

No inter-governmental body, such as the European Council, or its quasi-legal equivalent, the Eurogroup, can be treated as a platform for the fusion of interests among representatives of a unified demos, who collectively pursue their common interest. These inter-governmental fora are yet another theatre of inter-state, inter-national relations, which is reflected, among others, in their partitioned accountability.

The European Council (and the Eurogroup) is not accountable as a body to the European Parliament, while each of its members—the individual heads of state or government—are only answerable to their respective electorate/parliament. Put simply, Ms. Merkel is not accountable to the Greeks, just as Mr. Tsipras is not answerable to the Germans. Whatever mandate each of them has, is to promote the national interest, and to work for Europe so long as that telos is aligned with the national common good.

Inter-governmentalism can only proceed from banal nationalism and, a fortiriori, from the kind of mindset that has rendered “Europe” a special case of foreign policy, while turning “Brussels” into a centre for the exercise of top-down control.

In this regard, there can be no genuinely European common good, but only a compromise between competing national common goods (or in the case of the July 12 Euro Summit, an outright capitulation of a desperate government).

We cannot speak of a true European res publica if the very primary law of the Union, the corpus of law that substantiates this ostensible constitutional order, as well as a whole range of policies from economic governance to criminal law and asylum, are contingent on inter-governmental bargaining. We can, at best, refer to elements of a potential European common good, which are enshrined in the Treaties, and/or fleshed out in CJEU rulings.

The gist is that a genuine res publica cannot be fully formulated independent from a unified body of citizens and outside the framework of a single, albeit decentralised, polity. For the European common good to be properly realised, the creation of a European Demos and a European state is required.

I would call this a “republic”, but since Prof. Zetterquist seems to suggest that res publica and republic are independent from one another, I employ the term I prefer the most: European Democracy, with the “D” being capitalised to signify the presence of a state, founded on a codified corpus of primary law, a constitution, which operates as a federation for practical purposes, and which is permeated by the aforementioned democratic sovereignty.

For the record, I see no practical distinction between the concepts of “res publica” and “republic”. A stateless res publica, as in the case of the EU is either not genuine or largely inadequate, while a republic is a polity established on a rational understanding of the common good whose purpose of existence is to preserve and promote that good not just in some abstract sense, but in relation to—and in accordance with—the will of those people who actually exist: the citizens.

With the euro as stateless fiat money, and with its governance being largely quasi-confederal and inter-governmental, we already experience the ramifications of the EU’s sovereignty mismatch: a centralised-and-centralising technocracy.

I do think we should remain vigilant, so as to be in a position where we can pierce through the phenomenality of things, to see that behind Europe’s much-vaunted common values, as enshrined in law, there exists an inter-state-treaties-based formation that preserves the very element of alienation to Europe, the item that deprives any common good of its Europeanness: nationalism (pro-nation-state) as made manifest within the framework of inter-governmental rule-formation and rule-making.

In conclusion, I believe we would be doing ourselves a disservice if we were to blithely proclaim, as Prof. Zetterguist does, that we should “welcome the fact that we have become members of a European republic, with a European res publica”. In so claiming, we are lowering the bar, demanding from Europe to deliver less than what is normatively desirable, less than what we would like to have in our polity. The EU is not an independent constitutional order, because its supposedly independent constitutional object, the “EU state”, cannot amend its own primary law. Indeed the EU presents us with an extra body of law, which remains supra-national, yet its presence is fully dependent on the Member States.

The inter-state nature of the Union, which renders the entire edifice a quasi-confederation (supra-national rules and politics on an inter-governmental backdrop), decisively hampers any effort to shape a genuine European res publica. This will be realised in a European Democracy, a single federation with a unified body of citizens. The common good will be grasped and pursued, not just once but continuously, within the milieu of a constituted polity, a democracy functioning on the basis of the rule of law. The rest is ways of compromising with the status quo, excuses for keeping the EU on its current technocratic path, and for preserving its suboptimal condition as an ever-centralising non-republic.