Jean Monnet Center at NYU School of Law


4. The European Federation: Squaring the Circle

So, we come back to our original question: how can the Community institutions be made simpler, more transparent, more effective, more democratic, more welcoming to candidates, and more effective with thirty rather than fifteen countries, while continuing to permit progress along the path of integration and maintaining the nation-states intact? Some recent scholarship, inspired by Carl Schmitt's ideas on the `federative pact' and brilliantly represented in France by Professor Olivier Beaud, thinks these seemingly irreconcilable elements can be reconciled. Thus, Olivier Beaud writes: 17

The special feature of this theory of the federative pact is that creation of the federation does not make the nature of the Member States that have concluded it as political unit(s) disappear. In other words, there is no merger of the political units constituting a larger whole, i.e., no absorption of the Member States into the federation. From this viewpoint, this theory of the federation differs from the ordinary law of moral personality; in private law, the created collective person makes a screen between its founders and its bodies, and one might say that the latter replace the former. In contrast, in this public-law conception of the federation, the authors of the pact, the subjects of constituent power, continue to exist.

One can readily see the political relevance of such a construction, which might, as if by magic, immediately dispel all the contradictions that analysts of the European Union stumble over: much more than an international organisation, i.e., a confederation (with which it shares its creation through a treaty and maintenance of Member States' sovereignties) even though it be less than a federal state (but for how long if increasingly numerous powers are transferred to it?), the Union baptised a federation in Carl Schmitt's sense, might simultaneously be as powerful and effective as a federal state while strictly maintaining the personality and sovereignty of its constituent parts.

We confess that we are very sceptical as to this sort of Hegelian transcendence of opposites and the emergence of a new synthesis. We do not see how a `new animal' involving all the legal and political advantages of the federal state can be slipped into the theory of the state while still conserving the full sovereignty of the `nation-states'. But we can very well understand politicians seeking, whether from sincere belief or from calculation, to acclimatise the idea that this sort of result could be reached. If the Community construction, if Europe, has this price, we personally are willing to pay it. And, after all, we feel too uncertain in our `academic' analyses to be able to rule out absolutely the new synthesis defended by the scholarship we have just summarised.

Nonetheless, despite everything, we hold to Spinoza's old idea that the essence of the circle is irremediably different from the square's, and that tertium non datur.

17 Beaud (1993:269). See, also, Carl Schmitt, `Constitutional Theory of the Federation,' French translation of 1989, (Schmitt 1989:507-540). It would be interesting to know how far Joschka Fischer (or his advisors) have been influenced by these ideas of Schmitt's.



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