THE HEALTH OF NATIONS Part 7 pptx

the concept of european union 259 The macro–micro fault-line 8.65 The development of the European Union has been structured on the basis of a series of economic aggregates (customs union, common market, single market, economic and monetary union) which were treated as hypostatic paratheses and were given legally enforceable sub- stance, and which were accompanied by some of the legal-constitutional systems and paratheses associated with liberal democracy. The assump- tion was that a coherent society at the European level would constitute itself ‘functionally’, as it was said – that is to say, as a natural by-product or side-effect, as it were, of the economic constitution. Unfortunately, the negating and the surpassing of the Keynesian revolution and the reassertion of the micro-economic focus were more or less contempo- raneous with the founding of the European Communities. 55 And the new focus of the economic constitution of advanced capitalist soci- eties has proved to be part of a radical transformation of the polit- ical and economic constituting of those societies. Liberal democracy and capitalism were mutually dependent systems of ideas which were successful in managing the vast and turbulent flows of energy associ- ated with industrialisation and urbanisation in one European country after another. Democratic systems made possible the great volume of law and administration required by capitalism. Capitalism made pos- sible an increase in the aggregate wealth of a nation which was capa- ble of being distributed, unequally, among the newly enfranchised cit- izens/workers/consumers. Post-democracy is also a post-capitalism, a counter-evolutionary absolutism, 56 an integrating of the political and economic orders under a system of pragmatic, rationalistic, managerial oligarchic hegemony, in which law and policy are negotiated, outside 55 M. Friedman’s ‘The demand for money: some theoretical and empirical results’ was pub- lished in 1959 (67 Journal of Political Economy (1959), 327–51; republished in M. Friedman, The Optimum Quantity of Money and Other Essays (London, Macmillan; 1969), 111–39). J. Muth’s ‘Rational expectations and the theory of price movements’ was published in 1961 (29 Econometrica (1961), pp. 315–35; republished in Rational Expectations and Econometric Practice (London, George Allen & Unwin; 1981) pp. 3–22). 56 The intense concern of post-democratic governments with the problem of ‘education’ was anticipated by A. R. J. Turgot (1727–81), statesman and economic philosopher, who recom- mended state-controlled education to the French King as the ‘intellectual panacea’ which would make society into an efficient economic system, changing his subjects into ‘young men trained to do their duty by the State; patriotic and law-abiding, not from fear but on rational grounds’. Quoted in A. de Tocqueville, The Old Regime and the French Revolution (1856) (tr. S. Gilbert; Garden City, Doubleday & Company; 1955), pp. 160–1. 260 european society and its law parliament, among a collection of intermediate representative forms – special interest groups, lobbyists, focus-groups, non-governmental or- ganisations, the controllers of the mass media, and powerful industrial and commercial corporations – under the self-interested leadership of the executive branch of government. 57 8.66 The contradictions of the European Union as institutional sys- tem add up to a structural fault which is at the core of that system and which we are now in a position to identify as its chronic pathology. It is a morbidity which is preventing us from imagining the institutional sys- tem of the European Union as a society. It means that its half-revolution may yet prove to be a failed revolution. 8.67 The contradictions of the European Union as institutional sys- tem can be expressed as six dialectical tensions which are acting, not as the creative tensions of a healthy and dynamic society, but as de- structive tensions. (1) The tension between the macro constitutional order of the Union itself and the micro constitutional orders of its mem- ber states. (2) The tension between the macro economic order of the Union’s economic constitution (the wealth of the European nation) and the micro economic constitutions of its member states (each an eco- nomic aggregate in its own eyes in a traditional form of conflict and competition with all the others). (3) The tension between the Council as the macro agent of the Union’s common interest and the Council as a quasi-diplomatic forum for the reconciling of the micro ‘national interests’ of the member states. (4) The tension between two rival forms of localised imperialism (macro and micro; two cities or two swords; the Thomist duplex ordo), in the form of emerging post-democracy at the two levels – the national post-democratic managerial oligarchy externalised 57 Post-democracy may be a fulfilment of the gloomy predictions of Max Weber and of what may have been, at least according to W. Mommsen, his instinctive preference for some combination of rational governmental professionalism and plebiszit¨are F¨uhrerdemokratie (plebiscitory leader-democracy). W. Mommsen, Max Weber und die deutsche Politik 1890– 1920 (T ¨ ubingen, J. C.B. Mohr; 1959), pp. 48, 420. On Weber’s discussion of the combining of bureaucracy and leadership, see R. Bendix, Max Weber. An Intellectual Portrait (Garden City, Doubleday & Company; 1960), pp. 440ff. At the heart of post-democracy is something akin to the spirit of nineteenth-century Prussian bureaucracy. ‘The fundamental tendency of all bureaucratic thought is to turn all problems of politics into problems of administration.’ K. Mannheim, Ideology and Utopia. An Introduction to the Sociology of Knowledge (London, Routledge & Kegan Paul; 1936), p. 105. the concept of european union 261 as an intergovernmental managerial poliarchy, at the level of the European Union. (5) The tension between the imperialist ambition of a macro pan- European confederal union and the federalising ambition of a micro political union among a limited number of states. (6) The tension be- tween the ambition of the Union to be a single macro international actor and the survival of the micro ‘foreign policies’ of its participating governments and their separate foreign diplomatic representation. European Union as European society 8.68 To overcome these destructive tensions, to turn them into the creative tensions of a dynamic society, it is necessary to bring to con- sciousness the European society which transcends the European Union as institutional system. It is not possible to have a legal system without the society of which it is the legal system. It is not possible to have an eco- nomic system without the society of which it is the economic system. It is not possible to have a political system without the society of which it is the political system. If the European Union already has these systems, it follows that there is already a latent European society which transcends them and of which we can resume the self-conscious self-constituting as idea, as fact, and as law. We can resituate the European Union within the long historical process of Europe’s social self-constituting. It has been the purpose of the present study to begin that process. 8.69 Given the function of law within the self-constituting of a so- ciety, the most urgent task is the re-imagining of the European Union’s legal system. Law reconciles the ideal and the real, the power of ideas and the fact of power. Law reconciles the universal and the particular, uni- versalising the particular (law-making) and particularising the universal (law-applying). Law provides detailed resolutions from day to day of the dialectical dilemmas of society – the dilemmas of identity (legal person- ality), power (the distribution of legal powers), will (the actualising of value in the form of legal relations), order (constitutionalism), and be- coming (law-making and law-applying). Our concept of the European Union’s legal system must fully and efficiently recognise and actualise its capacity to do these things. 8.70 This means that we must: (1) recognise that the national con- stitutional orders now form part of a general constitutional order of 262 european society and its law the European Union; 58 (2) install in the European Union system the con- trolling idea of the common interest of the Union as overriding the indi- vidual common interests of its constituent societies; 59 (3) integrate the urgent problems of social philosophy at the two levels, to re-explain and rejustify the future of European Union, as society and as institutional system, with the problem of the exercise and control of public power at both levels; 60 (4) integrate the philosophical and practical problem of the self-constituting of European society with the philosophical and practical problem of the globalising of human society. 61 8.71 The crisis facing the European Union is a crisis of social phi- losophy, a crisis of the ideal self-constituting of a new kind of society and the enactment and enforcement of a new social philosophy in and through a new kind of legal system. European Union, the redeeming parathesis of Europe’s higher unity, is not a federation or a confedera- tion, actual or potential, but a state of mind. It is not merely a union of states or governments, but a unity of consciousness. It is a new process of social self-constituting in the dimensions of ideas, of power and of law. European Union, Europe’s society, is more like a family, a family with a common identity beyond its countless separate identities, a com- mon destiny beyond its countless separate destinies, a family with an interesting past, not wholly glorious and not wholly shameful, and with much need, at the beginning of a new century, for collective healing, to find a new equilibrium between its past and its future. 58 This means inter alia undoing the decisions of those national constitutional courts which have conceived of the European Union as essentially an emanation from, and inherently subject to, national ‘sovereignty’. 59 This means inter alia undoing those decisions of the Court of Justice of the European Communities which have tended to substitute a concept of aggregated or reconciled national interest for the concept of the particularising of a Union common interest. 60 This means inter alia undoing the constitutional concept (reflected in the new Article 88 of the French constitution or the revised version of Article 203 (formerly 146) of the EC Treaty) which treats the EU as essentially the exercise ‘in common’ of national governmental powers. 61 See further in ch. 10 below. 9 The conversation that we are The seven lamps of European unity Public mind – The conversation – The sacred – The ideal – The imaginary – The real – The social – The suffering – The future Long before there was a Europe of the European Union, there was a Europe of the European Mind. Europeans have spoken to each other in a permanent conversation across frontiers, the kind of conversation which generates the subjectivity of a community. The future of Europe is not merely the future of the European Union but the future of the European mind. It is possible to identify the constituent elements of Europe’s mental unity with which Europeans have designed the architecture of a true European community, a community of unity-in-diversity. It is possible also tosee thatEurope’s mind is in a pathological state, sclerotic and defeatist in the face of a recent past of which we have reason both to be proud and ashamed, and in the face of a world which has passed beyond Europe’s mental and political control. The European mind can be cured, reasserting an identity in relation to hegemonic powers outside Europe, restoring the social role of the scholar and the intellectual, resuming responsibility for the development of the ideas required for new kinds of social existence in a new kind of human world, asserting a special responsibility for the development of society and law at the global level, the level of all-humanity. Public mind 9.1 To be is to be thought of as being (Parmenides). To be a self is to think of oneself as a self (Descartes). To think of oneself as a self is to think of oneself as an other for another thinking self (Hegel). To become a self is to make oneself through thinking (Schopenhauer). To be a self 263 264 european society and its law is to think of oneself as having made oneself through acting as a self (Heidegger). 9.2 Applying these elementary propositions of idealist philosophy to the self-consciousness of human society, we may say that a human society is a self-constituting, as one society among many, in and through the thinking of many human minds. The self-consciousness of a given human society is the self-consciousness of a society which has made itself in its own mind, its public mind, a mind formed from, and forming, the private minds of the society’s members. 9.3 It follows that the self-consciousness of European society is the self-consciousness of a society which has constituted itself, as one so- ciety among many, in and through the thinking of the public mind of Europe. Europe’s public mind has been formed from, and has formed, the private minds of Europeans and the public minds of Europe’s subor- dinate societies. Europe’s public mind is being formed from, and is form- ing, the private minds of Europeans and the public minds of Europe’s subordinate societies. 9.4 The history of a society’s self is the history of a society’s self- consciousness (Dilthey). A society’s history of its self forms part of the making of a society’s self (Marx). 1 Applying these elementary propo- sitions of idealist historiography to Europe’s history, we may say that Europe’s history is a history of Europe’s self-constituting, but also a his- tory of its consciousness of its self-constituting, the story it tells itself about its self-constituting, and the story it tells itself as an integral part of its self-constituting. We tend to become what we think we have been. To interpret the past is to make the past. To change our interpretation of the past is to change the past. To change the past is to change the present. To change the present is to change the future. In interpreting Europe’s past in Europe’s continuous present, we are making Europe’s future. 9.5 The public mind of a human society, including the public mind of Europe, functions in ways which are directly analogous to the func- tioning of the mind of the individual human being. Social conscious- ness flows from and to individual consciousness. An irretrievable social past is stored in a memory which, nevertheless, acts as a cause in soci- ety’s present. An unknowable unconscious mind nevertheless conditions 1 This and the preceding one-sentence statements are intended as epitomised summaries. They are not quotations from the writings of the relevant philosopher. the conversation that we are 265 what society knows and how it knows it. A society’s public mind is or- dered through the self-ordering (rationality) of the private minds of its members. A society’s public mind is a self-ordering through norms and values, freedom and responsibility. A society’s public mind is formed in a conversation with itself and in conversations with others (society- members and other societies). A society’s public mind is haunted by all that surpasses and transcends it, the order of the material world and the mystery of the universe of all-that-is. And there are healthy and unhealthy conditions of the public mind, as there are of the private mind. 9.6 As we understand ourselves, as human beings and as human societies, so we understand our potentialities. The self-contemplating of the human mind, individual and social, is an exploration not only of what we are but also of what we might become. It follows that our idea of the actual state of European society contains within it an idea of what European society might become. It follows also that the present sclerotic and defeatist state of the European public mind is a state which could be overcome, a pathology which could be cured. The conversation 9.7 Europe’s public mind has been formed by a conversation which has continued over a period of twenty-eight centuries. 2 It is a conversation to which Europeans have contributed, at different times and to different degrees, from within the public minds of subordinate societies (Athens, Sparta, Rome, the Roman Church, Arab Spain, Florence, Reformation Germany, England, France, Holland . . . ). It has also included an intrin- sically transnational conversation (in the Roman Empire, the Roman Church, western monasticism, Byzantium, the Carolingian court, the medieval universities, post-Renaissance royal courts, national academies and institutes with an international perspective, modern 2 The role of dialogue or conversation in the formation of society is a central idea in the work of H G. Gadamer. See especially Wahrheit und Methode. Grundz¨uge einer philosophische Hermeneutik (T ¨ ubingen, J. C. B. Mohr; 1965/1975). ‘Thus the world is the common ground, trodden by none and accepted by all, uniting all who talk to one another. All kinds of human community are kinds of linguistic community: even more, they form language. For language is by nature the language of conversation; it fully realizes itself only in the process of coming to an understanding.’ Truth and Method (trs. J. Weinsheimer and D. G. Marshall; London, Sheed & Ward; 1975/1989), p. 446. 266 european society and its law universities . . . ). It has included a conversation stimulated by a suc- cession of interesting, more or less exotic, ‘others’ – ancient Egypt and Persia and India for the ancient Greeks; ancient Greece, North Africa, and other non-Roman peoples for the Roman Empire; the Arab world and Islam and China for medieval Europe; the ‘New World’ and vari- ous other ‘exotic’ peoples for post-Renaissance and post-Reformation Europe, the distant colonies for the European imperial powers . . . 9.8 The conversation of Europe’s public mind has also been re- markable for the cultural displacements of interesting and influential Europeans. We think of Montesquieu and Voltaire and Rousseau in England; of Augustine in Milan; of Aquinas and Hobbes and Freud and Picasso in Paris; of Plato with the Pythagoreans in Sicily; of Voltaire and Maupertuis with Frederick II at Sans-Souci; of Erasmus with Thomas More in London; of Peter the Great and Canaletto and Handel in London; of Diderot with Catherine II in St Petersburg; of Goethe and Byron and Thomas Mann in Italy; of Horace Walpole at Madame du Deffand’s salon in Paris; of Madame de Sta ¨ el and Coleridge in Germany; of Luther and Gibbon and Michelangelo in Rome; of Wagner and Proust and D ¨ urer and Turner and Ruskin in Venice; and countless other travels and meetings within the complex geography of the European public mind, a ‘single European market’ of ideas. 9.9 Europe’s conversation with itself produced a specific content of its public mind, that is, a specific culture (in the anthropological sense of the word) and a specific civilisation (in the historical sense of the word). A culture and a civilisation are a specific form of human self-creating, an accumulating reality which grows as it feeds on itself, a hortus conclusus of the mind, full of flowers and weeds, growth and decay. The actual state of Europe, spiritual and intellectual and social, is the twenty-first-century harvest of all that has gone before. As archaeologists of the European mind and as architects of Europe’s future, we may try to uncover the layers of Europe’s cultural self-creating. We might, as a creative hypoth- esis, identify seven lamps of European unity, the transcendental matrix of Europe’s cultural architecture. 3 3 In The Seven Lamps of Architecture (1849/1855), John Ruskin sought to identify the transcen- dental principles which distinguish ‘architecture’, as a product of the higher realms of the human mind, from ‘building’, the skilful work of human hands. As people have spoken for so long of ‘the construction of Europe’, so we may now want to imagine the future of Europe’s ‘architecture’. the conversation that we are 267 The sacred 9.10 We have worshipped many gods. We have worshipped different gods at different places and at different times. We have worshipped the same god under different creeds and different forms of worship. We have fought wars and civil wars in the name of god. We have required faith and worship under legal obligation. We have prohibited faith and worship under criminal penalty. We have persecuted and martyred each other in the name of god. We have reinvented god as a rational being and repudiated god as morbid fantasy. We have doubted god and preached agnosticism. We have denied god and believed in atheism. We have feared god and feared godlessness. 9.11 Until recently, it was normal to believe that ‘society has been built and cemented to a great extent on a foundation of religion’. 4 Such has been the case in the making of European society. The popular and literary polytheism of ancient Greece and the superstitious popular and official religion of ancient Rome 5 were transmuted into a monotheism borrowed from the ancient Near East, which was then itself modified under the influence of ancient Greek philosophy (and Hellenistic and Roman versions of that philosophy). Through the spiritual power and the institutional organisation of the Roman Church, through monas- ticism and the religious orders, and through every form of intellectual and artistic activity, Europe was united by Christianity in a way which is now becoming difficult for us to imagine. 9.12 The separation of western and eastern (Orthodox) Christianity, and the marginalising of non-Roman Christian sects, prefigured the scandalum magnum of Christianity – its disintegration, its self-wounding and, perhaps, its final self-destruction. But Christendom lives on in countless ways, not only as a legendary possibility of Europe’s social unity, but as a haunting presence in every aspect of our sensibility. It is present in some of the products of the fine arts, of music and of literature which we appreciate the most highly. It is present in some of the ideas and the ideals which we apply to questions of social and moral 4 J. G. Frazer, The Belief in Immortality and the Worship of the Dead (London, Macmillan & Co.; 1913), i,p.4. 5 Polybius said that it was superstition ‘which maintains the cohesion of the Roman state’. Histories, vi.56 (tr. W. R. Paton; London, William Heinemann (Loeb Classical Library); 1923), p. 395. 268 european society and its law judgement. It is present in the very language we speak, the images and idioms of everyday discourse. 9.13 The sensibility which is affected by this haunting presence is a European sensibility, a shared mind-world. Within that mind-world we also share a pathetic and persistent sense of a world we have lost, a world which we made and which we have unmade. Religion remains as a more or less vestigial social phenomenon in European society, and as an active presence in the private minds of many individual Europeans. But it co- exists in our collective memory with its dialectical negation, a powerful anti-sacred tradition, which is another all-European tradition, a religion of unreligion, preached with cold conviction by Hume and Voltaire and Feuerbach and Comte and Marx and Nietzsche and Freud, and so many others. The public mind of Europe is confused by the shared memory of the sacred and of its denial. We know that we would not be able to remake a religious world. But we are not yet certain that a post-religious human world is a possible human world. 6 The ideal 9.14 The invention of philosophy by the ancient Greeks changed the human world, creating a new kind of human potentiality, a potentiality actualised in every subsequent state of European consciousness, in all the subsequent history of the European public mind. By ‘philosophy’ is here meant a universalising activity of the mind which is neither religion nor natural science, but which shares in the transcendental character of religion and in the meta-cultural character of the natural sciences. 9.15 Plato’s conception (with immediate sources in pre-Socratic philosophy, and more distant sources in ancient Greek mythology and mysticism) of a supersensible world, containing universalised versions of aspects of the sensible world (divinised concepts, as it were), gave to the human mind the possibility of constructing an idealised metaphys- ical version of the universe which could be used not only as a way of 6 The quotation from Frazer (fn. 4 above) continues: ‘and it is impossible to loosen the cement and shake the foundation without endangering the superstructure’. ‘To believe in God is to long for His existence.’ M. de Unamuno, The Tragic Sense of Life in Men and Nations (tr. A. Kerrigan; Princeton, Princeton University Press; 1972), p. 203. In the twentieth century, we may have seen what human society would be like when human beings have ceased to long for God. [...]... pragmatism But the haunting presence of the ideal in the present state of the European public mind is much more powerful even than that of the sacred The whole of academic discourse, the whole of political discourse, the whole of moral discourse, the whole of legal discourse – all the discourse of the public mind is structured around the capacity of the human mind to universalise the particular and to particularise... of such ideas into the early theologising of Christianity, and the ingenious unifying of resurrected Greek philosophy and Christian theology in the work of Thomas Aquinas (in the thirteenth century), and then the uncoupling of re-resurrected Greek philosophy from religion in the context of the fifteenth-century Renaissance, meant that the notion of the idealising of the actual (and the actualising of. .. From the Greek temple to the medieval cathedral to the modern cathedrals of capitalism, from the great public works of Rome to the masterpieces of modern civil engineering, in the palaces and great the conversation that we are 271 houses produced by the aesthetic narcissism of the most privileged social classes, we have found ourselves living in a ‘built environment’ which, amid all the squalor of the. .. potentiality 9.24 In the late twentieth century, it came to seem that the collective imagination might be acquiring absolute power over the public mind The hegemony of popular culture and mass entertainment over the minds of the mass of the people, the commercialisation of public information and the commodifying of all the works of the mind, including art and literature and even the products of the beleaguered... yet another new New Jerusalem on the firmer foundation of the best of Europeanism In 1945, the ruling classes who had made the European wars since 1 870 , the new ruling classes of the political-military-industrial establishment, thought in terms of the politics of economics, because political economy was the source of their personal power and was the language-world they inhabited Surely it was not they,... only at the end of the twentieth century, twenty-three centuries later, that such ideas finally became the governing ideas in the public mind and the public institutions of all of Europe 9.34 In the meantime, the social life of Europeans had been carried to levels of collectivisation which the most dirigiste of Spartans could not have imagined The social integration of the Christian order and the feudal... honourable life’ ‘Since the end of individuals and of states is the same, the end of the best man and of the best state must also be the same.’ Aristotle, ibid., iii.9.6, iii.9.13, vii.15, pp 1 17, 120, 290–1  278 european society and its law law and administration required by capitalism, then the possibility of rising above the system, in the name of some higher ideal of judgement and purpose, becomes... the rich against the poor, or of those who have some property against those who have none at all.’ A Smith, An Inquiry into the Nature and Causes of the Wealth of Nations ( 177 6), v.i.b (eds R H Campbell and A S Skinner; Oxford, Clarendon Press; 1 976 ), ii, p 71 5 In the constitutional systems of Britain and the United States, there is still no reifiable unifying concept of the ‘state’ in the internal sense,... self-wounding of the Enlightenment project, and, above all, by the self-wounding and self-abasement of professionalised philosophy. 17 9.31 In the middle of the nineteenth century, the great philosophical tradition came to an end, like a majestic highway ending in the middle of nowhere Into the vacuum flowed a whole series of human half-sciences which have had a profound side-effect on the state of the European... through the work of missionaries but also through the behaviour of conquerors and colonisers The image of Europe and Europeans, in the minds of non-Europeans, became radically equivocal, as the agents of a ‘higher’ civilisation and as destroyers, doing evil in the name of doing good, including not only the good’ of the one true religion but also the religion of ‘democracy’ and ‘economic progress’ and the . public mind. The hegemony of popular culture and mass entertainment over the minds of the mass of the people, the commercialisation of pub- lic information and the commodifying of all the works of the. dis- course, the whole of moral discourse, the whole of legal discourse – all the discourse of the public mind is structured around the capacity of the human mind to universalise the particular and to particularise. reconciles the ideal and the real, the power of ideas and the fact of power. Law reconciles the universal and the particular, uni- versalising the particular (law-making) and particularising the universal (law-applying).