THE HEALTH OF NATIONS Part 6 pot

the crisis of european constitutionalism 213 dialect of German, which would eventually come to dominate and as- similate the Norman French of the latest (and last) occupying class. And if we were cousins of those tribes who would come to identify themselves as Germans, those tribes were cousins, or closer, of the tribes who would come to identify themselves as French. And the proto-Germans would get rid of the Slav tribes from what would one day become the territory of the German Democratic Republic. And the proto-French would go beyond the Somme and then beyond the Loire and frenchify the sur- vivors of the Romanisation of Gaul, and so link up with the Lombards who had moved from northern Europe to become the proto-Italians in conjunction with the aboriginal Romanised tribes of Italy, including tribes in southern Italy who had been colonised by the Greeks . . . and so on and on. 7.85 The expression multinational Europe (1100–1500) reminds us that it took manic efforts on the part of kings and their servants, and the spilling of much blood, to make these motley tribes believe that they were a nation, genetically and/or generically distinct from neighbour- ing nations, to separate the royal property of one so-called nation from another, to combine highly effective subordinate social systems (feudal estates, the dioceses of bishops, city-states, free towns) into centralised power-systems. When French kings were kings of England and English kings were also kings of France, what was England, what was France? British kings continued to bear the title ‘King of France’ long after they had ceased to control any part of France. Multinational Europe also re- minds us that it is only ideologically motivated historiography that has monopolised the historical imagination of the people with its stories of the antics of kings and emperors and soldiers, whereas the central social activity was, as it always had been, economic, that is, the transfor- mation of labour and desire into goods and services to which different economic agents attach differential but commensurable value. It is the international character of trade in the High Middle Ages, the cosmopoli- tanism of the towns, and the development of an international business consciousness which should attract our attention and admiration, as it should have attracted the gratitude and not merely the greed of the holders of ultimate political power. 7.86 The expression social Europe (1500–1800) reminds us of a very striking thing, the most important pattern of all – that, after 1453 (the sack of Constantinople and the end of the eastern (Byzantine) empire), 214 european society and its law the people of Europe rediscovered the most important kind of European unity, a unity of consciousness in the very period which is convention- ally presented as the period during which Europe decomposed into a modified state of nature wherein the leading politico-military actors were conceived as being ‘in the posture of gladiators’ (to borrow an expression used by Hobbes) in relation to each other. 7.87 Social Europe saw a great new flowering of a shared European consciousness, a consciousness which had been preserved, almostmirac- ulously, in unbroken succession from ancient Greece and Rome. Even in the darkest days of tribal Europe, when the lamp of civilised society burned low, the light of the mind burned steadily in the monasteries, those common organisations of the spirit, to be handed on to their intel- lectual heirs, the universities, in the twelfth century. It was the Church of Rome which had carried a most significant part of the intellectual, so- cial and even political legacy of the ancient world through tribal Europe into multinational Europe. And then, in the period of social Europe, the European spirit manifested itself luxuriantly in the fine arts, mu- sic, literature, the law and social institutions, philosophy, humanistic scholarship, the natural sciences, technology, agriculture. Social Europe was a European Union of the Mind, a single market of consciousness, with free movement of artists and intellectuals, of intellectual capital, of the products of hand and brain. Renaissance humanism, the scientific revolution, the enlightenment of the eighteenth century, Romanticism, the industrial revolution, the political revolutions after 1776 – they were all the work of the wonderful unity-in-diversity of the European mind. 7.88 Social Europe also reminds us that, ever since the period of tribal Europe, we Europeans have been capable of layered loyalty – loy- alty to family, village, guild and other social corporations, town, es- tate, province, nation, the Pope, the Emperor – loyalty to our religion, to Europe (in relation to non-Europe), to the City of God as well as the City of Man. Each loyalty has seemed perfectly compatible with all the others. Some of us, from ancient Greece onwards, have even claimed to be cosmopolitans, members of the international society of the whole human race, the society of all societies. As Europeans acquired an ever-increasing sense of their own individuality during the period of social Europe, that new personal self-awareness included an ever- increasing awareness of the complex and multiple and ever-changing social parameters of our personal identity, the social subjectivity of our personal subjectivity. the crisis of european constitutionalism 215 7.89 And social Europe reminds us that, even among the degenerate controllers of the public realms of the nations, there were signs of prac- tical socialising. We think of Hugo de Groot (Grotius) as the prophet of universal international law. But he, and his great Spanish predecessors, can also be seen in their specifically European context, as voices in a new politico-military wilderness, the voice of old Europe recalling the integrity of old Europe’s values, values of sociality and rationality, in the face of the terrible challenges of a new political world in Europe, of a new-old world outside Europe. 7.90 So what changed after 1800, to make inter-statal Europe, the Europe of the triumphant Public Realms? What made Hegel’s essay of 1802 on the reconstituting of Germany so prophetic? What has led so many Europeans to believe that inter-statal Europe is Europe’s natural and settled state? How is it that the European mind has produced the European Union that we know, a misbegotten and anachronistic prod- uct of inter-statal Europe, of one uncharacteristic phase of European history, standing in the way of a true European reunifying, of another self-surpassing achievement of the great and ancient tradition of Europe’s unity-in-diversity? 7.91 We can offer a rudimentary explanation of the complex his- torical process by which such a thing came about. We can begin to find our way into the heart of Europe’s darkness. What we find is that the European Union is a product of a particular developmental process in the most dynamic European societies, a process which enabled the state (in its internal sense) to acquire an ideal, real and legal hegemony over the other totalising complexes of society (especially society and nation and economy) and to acquire an external hegemony over all other transnational phenomena (the internal state externalised to become the state of so-called international relations and international law). 7.92 But the social hegemony of statism has passed its apogee, and all the totalising social concepts are undergoing radical reconceiving. We will be obliged to conclude that the European Union, in its present and potential state, is an exotic relic of a fading social order, like the late-medieval Church of Rome or the latter-day Holy Roman Empire. 7.93 Alexis de Tocqueville’s discussions of the American and French Revolutions are among the greatest achievements of human self- contemplating. Among his many powerful and prophetic insights was the idea that the new kind of democracy had within it the seeds of to- talitarianism, to use a modern word which he did not use. He quotes 216 european society and its law a warning uttered by Thomas Jefferson in a letter to James Madison in 1789: ‘The tyranny of the legislature is really the danger most to be feared, and will continue to be so for many years to come. The tyranny of the executive power will come in its turn, but at a more distant period.’ 60 7.94 De Tocqueville said that, as the number of public officials in- creases, ‘they form a nation within each nation’ and that governments would come more and more to act ‘as if they thought themselves respon- sible for the actions and private condition of their subjects . . . [while] private individuals grow more and more apt to look upon the supreme power in the same light’. 61 7.95 And so it happened: the controllers of the public realm came to be a nation within each nation, a social class with its own class-interests, and then, as they began to identify with each other transnationally, a transnational class with its own class-interests. And the European Union is the product of their ideals and their ambitions. European Union is the partial integrating of the public realms of Europe by the controllers of the public realms of Europe. (The public realm is that part of the total social process of a society which consists in the exercise of those social powers which have been conferred by society to serve the public interest of that society.) Ideas and illusions 7.96 The form of the constituting of the European Union has been determined and profoundly distorted by certain peculiar characteristics of the minds of the controllers of the public realms, idea-complexes that we may call technocratic fallacies. 60 A. de Tocqueville, Democracy in America (tr. H. Reeve; New York, Schocken Books; 1961), i, p. 318. 61 Ibid., ii, pp. 323–4, 336–7. Aristotle had foreseen the tyrannical potentiality of democracy. In what he called a monarchical democracy, the people become monarchical, one ruler composed of many persons. ‘Hence such a democracy is the exact counterpart of tyranny among monarchies; its general character is exactly the same. Both lord it over thebetter class of citizen and the resolutions of the one are the directives of the other; the tyrant’s flatterer is the people’s demagogue, each exercising influence in his sphere, flatterers on tyrants, demagogues on this type of popular body. They are able to do this primarily because they bring every question before the popular assembly, whose decrees can supersede the written laws. This greatly enhances their personal power because, while the people rule over all, they rule over the people’s opinion, since the majority follow their lead.’ Aristotle, The Politics, iv.4 (tr. T. A. Sinclair; Harmondsworth, Penguin; 1962), p. 160. the crisis of european constitutionalism 217 7.97 The first fundamental fallacy has been the idea that a consti- tution is a legally formulated arrangement of institutions. The second is the idea that there is something called the economy which is au- tonomous in relation to the rest of social phenomena, that res economica is systematically separable from res publica, and even from res privata. The third fallacy is the idea that democracy can be conducted as if it were a species of diplomacy, as if diplomacy can be democracy by other means. 7.98 The life-threatening effects of these fallacies can be detected in the deep-structure of the European Union system and, with the conclu- sion of the deplorable Treaty on European Union in 1992, the constitu- tional situation has become worse rather than better. 62 At the heart of the system remains the fantasy of the Diplomatic General Will, the idea that the controllers of the public realms of the member states are able to represent the totality of the national interests of the participating peo- ples, and hence that the public interest of the EU – which is expressed in the law of the EU – is nothing more than the aggregate of the public interests of the member states, mediated through the collective willing of the public-realm controllers. The underlying supposition is that the infinitely complex and intense social phenomenon known as politics, which is at the heart of the process of will-formation in a democracy, can be transmuted and subsumed in a bargaining process among the controllers of the respective public realms, spuriously legitimated by mobilising the ante hoc or post hoc consent of this or that institution within the member states. 7.99 At the heart of the system remains also the fantasy of the Aggregate Economy, the idea that an EU economy and market can be made by the legal and administrative co-ordination of the national economies and markets, and hence the idea that the economic public in- terestof the EU– which is expressed in itseconomic and monetary policy, and in economic legislation, and in the interpretation and application of economic legislation – can be treated as being the aggregate of the 62 The Maastricht Treaty introduced into the EC Treaty technocratic fantasies in providing separate legal-constitutional regimes for so-called Economic Policy and so-called Monetary Policy and in arbitrarily legislating certain transient capitalist dogmas, with collective pun- ishments for recalcitrant member states. And it provided a new non-EC (intergovernmental) system for so-called Common Foreign and Security Policy, Police and Judicial Co-operation in Criminal Matters andJustice and Home Affairs (this last aspect being more or less reintegrated into the EC system by the Treaty of Amsterdam of 1997). 218 european society and its law economic public interests of the member states. The underlying sup- position is that the organising of the infinitely complex and intense social phenomenon of interactive (public and private) economic decision- making of a capitalist social system can be transmuted and subsumed into the routine interactive decision-making of government ministers, diplomats, national and international administrators, and national and international judges. 7.100 Such ideas directly conflict with other ideaswhose social power we have come to understand through many centuries of European social philosophising and through the last two centuries of intense lived social experience. They run directly counter to the constitutional psy- chologies of the people and peoples of Europe which have been dis- cussed above. They are ideas which wholly misconceive the nature of the self-constituting (ideal, real and legal) of our societies. They are ideas which come from the shared consciousness of a rootless class, the class of technocrats, whose job it is to manage the public realms of our societies abstractly and instrumentally and professionally, rather than through moral and political and emotional commitment. Such peo- ple have been allowed to determine the revolutionary reconstituting of European society. 7.101 Against such ideas we must insist on other ideas. The self- constituting of a society is the social self-constituting of human con- sciousness. What is called the economy of a society is simply that part of such self-constituting which is the socialising of human effort and human desire. So-called democracy is that part of such self-constituting which is the socialising of the human will. The self-constituting of the most dynamic form of society, that is to say, democratic-capitalist soci- ety, is an inextricable integrating of consciousness, effort, desire and will. 7.102 To unravel the historical process by which technocratic falla- cies came to dominate and to impede the process of Europe’s reunifying requires an understanding of the developmental relationship between the real constituting of our societies, during the period which we have called inter-statal Europe, and the idealisation of that process in the idea- complexes known as democracy, capitalism and the state (in its internal and external manifestations). 7.103 It was no coincidence that Jean-Jacques Rousseau and Adam Smith both proposed, almost simultaneously, new ways of imagining the real-constitution processes which would later be ideally constituted in the social theories which came to be known as democracy and capitalism. the crisis of european constitutionalism 219 And it was no coincidence that they did so at the very time when our societies had brought to full consciousness such powerful ways of im- agining their social totality. The ideal-real-legal interaction of the two – democracy-capitalism/society-nation-state – has been the story of the amazing development of our societies over the last two centuries. Rousseau’s general will and Smith’s invisible handwere metaphorsof won- derful explanatory power, but they were far more than metaphors – and they were close analogues of each other. 63 Their hypothesis was that it is possible to aggregate human action socially, to aggregate the infinite particularity of human willing and human effort – and, most wonder- fully of all, such aggregating can produce what we may call surplus social effect, an output that is much more than the sum of the inputs. They had apparently constructed ideally an engine of unlimited social progress, ensuring ever-increasing human well-being through the universalised forms of law and wealth. 7.104 It turned out that democracy and capitalism involved a whole- sale transformation of society, a re-constituting of society. The nine- teenth century found a new instrument for social self-reconstituting, a novum organum which was a very old instrument reconceived, namely, the public realm of society, the res publica. The ancient public realm, which had been the personal property of kings and of one self-serving oligarchy after another, became the means of revolutionary social trans- formation. The public realm provided a superstructure within which society could be reconstituted, redistributing all forms of social power, including economic power (especially property-power), political power (especially over the legislative process), and psychic power (over the 63 ‘[T]he rulers well know that the General Will is always on the side which is most favourable to the public interest, that is to say, most equitable; so that itis needful only to act justly, to be certain of following the General Will.’ J J. Rousseau, Discourse on Political Economy, in The Social Contract andDiscourses (tr. G. D. H. Cole; London, J. M. Dent & Sons; 1973), pp. 296–7. ‘As every individual, therefore, endeavours as much as he can both to employ his capital in the support of domestic industry, and so to direct that industry that its produce may be of the greatest value; every individual necessarily labours to render the annual revenue of the society as great as he can. He generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it . and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention.’ A. Smith, An Inquiry into the Nature and Causes of the Wealth of Nations (1776), bk iv, ch. 2. On what German writers call respectively das Problem J J. Rousseau (individualist or collectivist?) and das Problem Adam Smith (is a Smithian-capitalist economy natural or artificial?), see E. Cassirer, The Question of Jean-Jacques Rousseau (tr. P. Gay; Bloomington, Indiana Univer- sity Press; 1954), and J. Viner, ‘Adam Smith and laissez faire’, in The Long View and the Short (Glencoe, The Free Press; 1958), pp. 213–45. 220 european society and its law contents of the public mind). 64 The public-realm superstructure came tobereferredtoasthestate, another ancien r´egime form reformed. 65 7.105 The ancient constitutional psychologies adjusted themselves to these developments, seeing the superstructural public realm as the self-governing of society as the republican will of the nation, as the self- constituting of a people as state. (InGermanyandJapanintheperiod up to 1914, it proved possible for the constitutional needs of capitalism to be met by technocratic rather than by democratic forms. And we see now in various countries outside Europe a form of social transformation which might be called state capitalism.) 7.106 The superstructural public realms recognised each other ex- ternally – recognition even became a technical term of international law – so that, regardless of the status of the state internally within the different societies and of the extreme practical inequality among the states, they could treat each other as so-called sovereign equals, since each seemed to be performing a similar social-structural function. The status in statu,to adapt Metternich’s formula, could also be a status ex statu. 66 Their more romantic apologists could even suppose that the states together formed a sort of inter-statal society. 67 And it was soon found that the age-old ruling-class game known as diplomacy could still be played according to the old rules, as a game among the controllers of the new public realms. And the age-old aspiration known as international law could continue to perform its old-regime function, marginally controlling the external activity of the new state-machines, reconciling piecemeal their so-called interests. 7.107 The immense increase in the aggregate energy of the new- regime societies gave great force to what has been referred to above as competitive nationalism. There was a new way of increasing the relative power of the social totality – not by war, colonisation or annexation, but by increasing the organisational efficiency of society, and by increas- ing its aggregate wealth. The most dynamic new-regime societies had 64 The ‘public mind’ is the collective consciousness of a society which functions in the same way as the consciousness of individual human beings from which it emerges and to which it returns to modify the contents of individual consciousness. The nature and the role of the public mind are considered in ch. 4 above. 65 Once again, it is de Tocqueville who offers a fascinating exploration of the origins, in ancien r´egime France, of such a repositioning of ‘the state’. A. de Tocqueville, The Old Regime and the French Revolution (1856) (tr. S. Gilbert; Garden City, Doubleday Anchor Books; 1955), pt 3, ch. 3. 66 See text at fn. 70 below. 67 H. Bull, The Anarchical Society: a Study of Order in World Politics (London, Macmillan; 1977). the crisis of european constitutionalism 221 become vast wealth-machines. The pursuit of external power through wealth is the continuation of war by other means. The peoples of Europe were conscripted into a set of competing lev´eesenmassein time of war and a set of permanent working armies in time of peace (with reserve armies of (unemployed) labour, to borrow Marx’s metaphor). The two so-called World Wars of the twentieth century were wars made by the controllers of the national wealth-machines, by the nations within our nations. Europe’s social progress was bought at the expense of Europe’s social unity. And the consequence was a twentieth century whose first half was spent in war among the new competing state wealth-machines, and whose second half has been spent in a feverish collective effort by the controllers of the public realms to overcome their past, by seeking to create a self-transcending status ex statu, the European Union. 7.108 The making of the European Union, as an external hegemonic public realm, reflects the social hegemony which the national public realms had accumulated over the last two centuries, the self-creating of the state as intra-societal superpower. That process had reached its natural limit with the development of the mixed economy after 1929. Not content with having made capitalism possible by providing its necessary political, social, economic and legal conditions, the public realm became a master of the so-called economy, that is to say, the socialising of human effort and desire. The public realm became a direct economic actor (especially through state-owned enterprises), and it became the manager of allmanagers (in themanagement of themacro-economy) and through fine-tuning of the micro-economy (anti-trust law, consumer protection, etc.). 7.109 After 1945, the public realms, which had caused such inde- scribable suffering and destruction, rehabilitated themselves by organ- ising yet another reconstituting of our societies. And it was from that reconstituting that the European Economic Community was born, a superstructural reconstituting through the forming of a communal ex- ternal capitalist economy. It was, ironically, the beginning of the end of statist hegemonism. The European Community dawned in the dusk of the world which had made it. 68 7.110 Over recent decades we have begun to reconstitute ourselves ideally, that is to say, in terms of the ideas by which we organise our 68 The Austrian dissent to the classical and neo-classical economic orthodoxy had been re- asserted in the 1930s with the work of Ludwig Mises and Friedrich von Hayek. Joseph Schumpeter’s History of Economic Analysis had been published in 1954. 222 european society and its law lives. Our societies are changing, as we renegotiate the terms and con- ditions of our sociality. The public mind can no longer be managed by the controllers of the public realm. Our nations are being reconceived, as the people reconsider the various sources of their personal identity. The nature and the function of the state (in the internal sense) is now an open question, following extensive redistribution of the economic and administrative functions of government. The process known as global- isation has put in question the system of management of transnational phenomena through inter-statal activity. Democracy, as an idea and an ideal, is being tested against its practical manifestations. Capitalism, as an idea and an ideal, is being tested against its practical effects. 7.111 It is the equivocal achievement of the European Community that it has succeeded in surviving from one new age into another. To redeem it and to perfect European Union will require an unprecedented effort of our long-accumulated constitutional wisdom. Making the future 7.112 What, then, must we do? 69 7.113 We must first dispose of three courses of action which, strangely and embarrassingly, are precisely the three courses of action which are available at the present time. (1) The first is nuclear fusion (or ‘enhanced co-operation’), the prus- sianisation of the European Union, that is to say, the final rationalisation of the Community system, among a limited number of European states, so that it becomes a supplementary state-system, welded onto the na- tional constitutional systems, an endogenous communal constitutional exo-skeleton (i.e. secreted out from the national systems but shared ex- ternally among them all), in which the constitutional problems of dual legal supremacy and dual democratic legitimacy would at last be faced and resolved. Official Germany has seemed to support this line of action, 69 In his pre-revolutionary tract of 1886, Tolstoy said: ‘In the matter with which I am engaged, what I had always thought has been confirmed, namely, that practice inevitably follows theory and, I will not say justifies it, but cannot be different, and that if I have understood a matter about which I have thought, I cannot do it otherwise than as I understand it.’ He also said: ‘What constitutes the chief public evil the people suffer from – not in our country alone – is the Government . . . ’ L. Tolstoy, What Then Must We Do? (tr. A. Maude; Bideford, Green Books; 1991), pp. 107, 163. [...]... and acting of society-members, up to and including the sacrifice of their lives for the society 8.35 The central focus of the parathesis society is an idea of the common wealth, the common interest and the common destiny of the society and its members The central focus of the parathesis nation is an idea of the common identity, the unity, and the common destiny of the society and its members The central... an idea of Hegel’s: theory and practice form a syllogism of action of which the middle term is value The history of Europe is the sum total of all the actions taken by Europeans and, therefore, the history of Europe is the enactment of the values which have been involved in the choices, the acts of will, which have made those actions The history of Europe is the product of the consciousness of all Europeans,... Roman Church, the Church was, and is, the faithful, and also something which transcends the faithful In the Holy Roman Empire, the Union’s participating governments were masters of the totality when they acted together in the Council and they were subjects of the Union when they acted individually under the law of the Union In the United States of America, the horizontal relationship of the constituent... with the intelligence and determination of a Bismarck to energise the process) (2) The reconstituting of German 21 There is a fine irony in the mirror symmetry between the wording of the Act of Parliament known as the Act of Supremacy 1559, which terminated the legal authority of the Church of Rome in England, and the wording of section 2 of the European Communities Act 1972, which introduced the legal... relevance for the American mind.28 The process of development of the social consciousness of Old Europe has separated itself from the development of the social consciousness of New Europe across the Atlantic Ocean In particular, the story of the operation of the syllogism of action in Europe contains a special, and dramatic, chapter relating to the making of three particular concepts of social totality... consciousness of the people and the peoples of Europe of the necessity of new social forms of European society Necessity in this context means that the social forms of European society must be seen as a necessary part of the self-identifying of the people and the peoples of Europe and a necessary part of their socialising, that is to say, of their social self-constituting with a view to their survival... Europe, of a collective consciousness which can process the concepts, the ideals, the values, the purposes, the policies, the crisis of european constitutionalism 227 the priorities, the hopes and the fears of the people and the peoples of Europe – that never-ending dialectical process of collective selfcontemplating, self-correcting, self-perfecting which is the work of the public mind of a society The. .. as Montesquieu recommended, the spirit of the laws and the spirit of the nation should be in conformity with each other 32 8. 36 It is a major challenge to the making of the idea of European Union that the spirits of the laws of the different member societies are the product of radically different historical circumstances, of radically different constitutional psychologies, of radically different value-filled... painting implies the pattern of vision The syntax of speech implies the order of language The rationality of thinking implies 32 He quotes with approval a saying of Solon (the law-giver of Athens, seventh–sixth century BCE) which the makers of the European Union might well bear in mind : ‘I have given them the best [laws] they were able to bear.’ Baron de Montesquieu, The Spirit of the Laws (1748) (tr... 1804 as ‘Emperor of the French’ (taking the crown from the hands of the Pope), was the true successor of the Frankish King Charlemagne, who had been crowned by the Pope as Emperor in the year 800, and whose kingdom had been divided following his death The East Frankish (German) King, Otto I, invaded Italy, took the title King of Italy, and in 962 (the traditional date of the founding of the Holy Roman . 9. 8 The concept of European Union Imagining the unimagined The self and the other: the dilemma of identity – The one and the many: the dilemma of power – Unity of nature, plurality of value: the. And the European Union is the product of their ideals and their ambitions. European Union is the partial integrating of the public realms of Europe by the controllers of the public realms of Europe interest of the EU – which is expressed in the law of the EU – is nothing more than the aggregate of the public interests of the member states, mediated through the collective willing of the public-realm