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Part of my critique of the “Plan B” for Europe is that it is essentially an inter-governmentalist project. It has no vision for overcoming the present constitutional constraints of the European Union as an inter-state-treaties-based formation. Instead, it seeks to establish an inter-national system among leftist states (assuming they will become so) that will continue to operate in a similar fashion to today’s EU: a quasi-confederal order that will be heavily dependent on inter-governmental bargaining, without there being any real space for trans-border and trans-national politics through the establishment of a European Demos.
So why is that necessarily a problem? Will not leftists put forward the kind of policies we want for a progressive Europe? What can possibly be our objection to an EU-like system that has embraced leftist values instead of neoliberalism?
At first, the answer derives from the fact that primary law and secondary law are not reducible to one another. By that, I mean that a corpus of primary law, preferably a codified constitution, the document which provides the foundation and “abstract structure” of the state, has a different scope than day-to-day policies that are legally substantiated. Think of primary law as a polity’s documented ethos, and secondary legislation as the context-aware application of such practical morality.
Once that distinction is drawn, we may proceed to the examination of the constitutional order. A constituted polity consists of a subject, an object, and the modalities of inter-operability thereof. To that end, we may enlist the following:
- the constitutional subject is the agency that bears legitimacy, the one that exercises sovereignty from the bottom or that initiates the exercise of sovereignty;
- the constitutional object is the entity on which legitimacy is given, the one that exercises sovereignty from the top or that exercises sovereignty at a later stage;
- in conceptual terms, sovereignty is a compound that is formed through the circular relation between the subject and the object, so that “popular sovereignty” cannot be hypostatised without a sovereign state, while “state sovereignty” cannot be legitimate without popular consent.
In a typical republic, the constitutional subject is the body of citizens. The constitutional object is the state that grants and renders such citizenship meaningful. As for the interplay between legitimacy and accountability, we have the following:
- the body of citizens elects the executive and the legislative functions of the state in a single or in separate elections (depending on whether the system is parliamentary or presidential); this is the exercise of sovereignty from the bottom;
- the democratically-mandated functions of the state assume the role of governance, with the executive being the one that implements and pursues policies on all fronts, and the legislative promulgating laws that make the executive’s acts legally-binding; this is the exercise of sovereignty from the top;
- the process is cyclical and takes place within the boundaries of the constitution, so that neither the bottom nor the top can be made separate from one another; this practically means that neither the body of citizens can be alienated from its own state, nor can the state’s functions become insulated from popular will-formation; the process of self-rule is therefore continuous.
These constitutional issues provide an outline of a republic’s essential features. Without them, representative democracy within a rules-based system would not exist.
The emergent problem
Now that we have reminded ourselves of the background knowledge, let us return to the titular question: why not inter-governmentalism?
In an inter-governmental formation, as is the EU for the most part, the constitutional subject of the supra-national order that emerges is not an indivisible body of citizens, but the Member States.
Here is the tricky part and where many well-meaning citizens tend to make the mistake of thinking of the EU as a proper democracy in its own right: each Member State is—or should be—in its own respect a republic that operates along the lines of a constitutional order, as outlined above. Yet the body of Member States, the aggregation and inter-operation of republics, does not necessarily constitute a republic, a “greater” democracy perhaps. This emergent state of affairs is not a constitutional order in the proper sense, for the following reasons:
- The body of Member States as such is not directly accountable to a unified body of citizens. Instead each Member State’s government is only accountable to its own citizens. We therefore have joint authority—the supra-national rule—with partitioned accountability (e.g. Ms. Merkel is not accountable to the Greeks, as Mr. Tsipras was not accountable to the Germans).
- The primary law of the supra-national level, the European Treaties, cannot be reviewed or amended by a European body of citizens, nor by any given parliament, be it the European or a national one, for a European Demos qua subject of legitimacy does not exist constitutionally, while the Treaties are inter-national in nature. Put differently, we citizens in our capacity as European citizens cannot change the Treaties on which the EU is established—only the Member States can do that (in this regard, European citizenship is substantively inferior to a national one).
- Sovereignty from the top is not exercised by a single state, but by a society of states, implying that the interests of the space as such, of the Union at-large, are not actually represented in this specific regard, with the European Commission, the executive function of the EU, being an entity that receives its mandate from the European Council not the European citizens, spitzenkandidaten litanies to the contrary notwithstanding.
We therefore end up having a supra-national formation that exercises sovereignty from the top (common rules) without having received sovereignty from the bottom (common politics), meaning that a republic’s subject-object inter-operation, the virtuous cycle of self-rule between legitimacy and accountability, does not really exist.
I have been describing this emergent phenomenon of inter-governmental rule formation as a sovereignty mismatch. The mismatch can be encapsulated in another phrase I use: “common rules without common politics” (which captures the spirit of the EU and especially of the Economic and Monetary Union, the euro).
In this article, I have not written anything about leftist ideals and views on policy. The reason is that I find that discussion to be secondary in nature (it mostly concerns secondary law). The constitutional issues in themselves provide all that is needed to examine a given polity’s main features. This is why I claim that some “enlightened” inter-governmentalism among leftists does nothing whatsoever towards tackling the fundamental flaw of the actual EU: its sovereignty mismatch. It will rather preserve and perpetuate the issue, only giving it a different character.
To conclude on a slightly more leftist tone, for I am after all a leftist-ecologist, inter-governmentalism prevents us from having trans-border and trans-national politics. Instead, we will remain trapped in an inwardly nationalistic (pro-nation-state) mentality, since interests in an inter-national order always, and perhaps necessarily by design, tend to coagulate along national lines.
[On a side note, this is why I also draw a distinction between cosmopolitanism and internationalism, for the latter presupposes nations, and implicitly preserves the states thereof, as if those were not products of history, modernity in particular.]
For that and as concerns the way forward, my prescriptive argument on constitutional affairs (which is not “my own”) is the creation of a European Democracy: a federal republic founded on a codified corpus of primary law that will supersede the existing inter-state-treaties-based system of the European Union.
This will be a genuine constitutional order, with the potentiality for a pan-European democracy and common politics for the 21st century, beyond the nation state and the normative achievements of the 18th and 19th centuries.