Jean Monnet Center at NYU School of Law

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Open support for European statehood is not common these days. In the political arena, a federal Europe (which is the most common, if misleading, surrogate term for statehood) has, it seems, been effectively dropped from the common political lexicon of most political forces and even the European Parliament unceremoniously shelved its grand pre-Maastricht project of drafting a `Constitution' for Europe.

The most obvious reason is political expediency: there are, it would seem, few votes in it. Why this should be so is more complex. In part it reflects a general souring towards the idea of Europe, always more acute in times of economic recession. In part it is a reflection of the normal morphology of ideas and politics. To new generations, Europe is neither an ideal or dream nor even an ideal or a dream partially come true. It is the everyday political reality into which most voters were born, something to turn against rather than turn to. And in a period of general disillusionment with politicians and political process, the idea of European statehood might not seem as daring a vision as it did, and does, to some of the postwar generation but, perhaps, a reckless grab for even more power by a class of European mandarins who already have too much. Even in the `intellectual world,' European statehood seems to many a weak idea, at best irrelevant to the real problems of Europe, at worst a recipe for aggravating them.

`The Case' for European statehood made by Judge Federico Mancini is unlikely to persuade even those favourably inclined. When he eventually gets down to making his case in the last sections of his paper, it is, I shall argue, so slight as to make one wonder if a reasoned case was made at all. Let us put aside the question whether the category of Statehood in an increasingly "globalized" world is still meaningful. Even with this caveat Mancini's passionate polemic does raise interesting issues which merit comment.

1) The most interesting issue in my eyes is not the what of this case for statehood, but the who and the how. It is, I fear, the fact that a sitting judge on the European Court of Justice has decided to make `The Case' and to make it in the manner in which he has, which fascinates. Is it appropriate? Is it wise? A similar debate is now taking place in Germany at the centre of which one finds, ironically, Judge Kirchhof of the German Federal Constitutional Court, who is one of the subjects and objects of Mancini's critique. Kirchhof, like Mancini, has stepped into the public square with outspoken views about the ends and means of European Integration.[64] Whether or not one agrees with his views, there has been in Germany much comment in learned journals as well as the press about the appropriateness of the manner in which Kirchhof, as a sitting judge of the Constitutional Court, has stepped into the political fray. In European law circles this discussion has rarely taken place in public;[65] but it should, and Mancini's piece offers an occasion for beginning such a discussion.

2) Whereas the actual positive `Case' for statehood is brief, most of his essay is an attack on certain judicial and academic circles who have, to the evident chagrin of Mancini (a `member' of both circles), become the unwitting allies of the political and bureaucratic elites in the fifteen Member States who are hostile, for self-(pre)serving reasons, to European statehood and thereby might appear to be giving these self-preserving elites ideological respectability. Mancini feels betrayed by those who supposedly until recently drummed and fifed for speedy political integration and have now abandoned him, the lonely drummer, in the march to statehood. Mancini is interested in what `motivates' the alleged turncoats, and in what are the `... causes of their disenchantment' and in a `critical appraisal of its expressions.' The conclusion of his critical appraisal must have given comfort: it is all, it would appear, a misunderstanding deriving from a simple `...inability to think of statehood other than in terms of the nation state.'[66] It is comforting since, presumably, once this misunderstanding is cleared up, once the inability, like a malignant tumour, is removed, principled opposition to European statehood, new found or old, would disappear, too. Since this, alas, is the core of his paper, I think there might be some interest to show that some of the texts which come under Mancini's critical appraisal may be thought to suggest the opposite of what he claims. In fact, some so explicitly and repeatedly contemplate and discuss the possibility of statehood other than in terms of the nation state, that I fear the differences with Mancini are even more profound than he imagines. I think it is important to articulate, if only by way of headlines and inklings, a position that drums and fifes for European Integration (though I feel more comfortable marching to the altogether richer sound of MacCormick's bag pipes[67]), which is actually mindful of the possibility of a State that is not a nation state and yet rejects as undesirable even that kind of State as a worthy aspiration for Europe.

3) Which brings us to the last point of interest in his piece, the question of motive--this time Mancini's motive. Given the complexity and fractured nature of the human self, discerning what `motivates' the intellectual or political position of anyone is always a guessing game. It could be as trivial as making a splashy and provocative speech which would please on the day and which one could discard the next. It could, by contrast, spring from the deepest wells of the soul. It could be both. There is never one motive and among multiple motives there is invariably tension and even contradiction. In intellectual discussion one could, arguably, defend a position which objected to conjecture about motive altogether and advocate that debate be restricted to the arguments themselves. But even then it would be legitimate to inquire who stands to benefit or lose from this or that position, if adopted. Moreover, when dealing with those who exercise public power, inquiring about the motives behind intellectual positions is not only legitimate but also imperative in a politically responsible polity, even if any conclusions remain just as conjectural. After all, Mancini does just that when he unmasks the hostility of national political and bureaucratic elites to European statehood. The appearance, he claims, is concern for sovereignty; the real motive is more down to earth. At least in the eyes of `old hands' it is self-preservation. Mancini is a judge, a member of the highest judicial instance of the Union which, in turn, is an integral part of European governance. The Court and its judges enjoy considerable power and prestige. Mancini, thus, will not object if we play at the same game and try and second-guess what motivates his position.

[64]To pile irony on irony, both seem to display an interesting shared intellectual and political sensibility. They both seem to be highly sceptical about the democratic nature of the European Union and they also seem to agree that it is the State, and only the State, that can act as an effective guarantor of democracy though for Kirchhof it would be the Member State and for Mancini it can only be a would-be European State.

[65]There has been, apparently, one challenge to one of the ECJ judges acting as Reporting Judge in a case in which that judge had allegedly committed himself in an extra-judicial article on the very subject of the litigation. The challenge was rejected by the Court.

[66]Mancini, `Europe: The Case for statehood,' (1998) 4:1 ELJ, Section II (emphasis in the original).

[67]See MacCormick , `Sovereignty, Democracy & Subsidiarity,' in R. Bellamy et al (eds), Democracy and Constitutional Culture in the Union of Europe (Lothian Foundation, London 1995); MacCormick, `Beyond the Sovereign State,' (1990) 56 Modern Law Review 1; MacCormick, `The Maastricht-Urteil: Sovereignty Now' (1995) 1 ELJ 259.

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