Jean Monnet Center at NYU School of Law

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At the centre of his piece Mancini identifies two intellectual positions:

One position--[the description of the first position is from Professor Deirdre Curtin's Inaugural Lecture at Utrecht[72]] has come to the conclusion that, as cited by Mancini, `the safest ... option is simply to retreat to what we are familiar with, the nation state' and that any notion of democracy beyond this horizon is `at best sheer Utopianism, at worst downright dangerous'.

The other [myself] ... is opposed to a `statal Europe [which would] ... betray the promises implicit in the vision of a merely supranational Europe.[73]

In the best tradition of deconstructive hermeneutics Mancini points out that

On a first reading, it would seem readily apparent that these views are nothing if not highly contradictory. However [further analysis demonstrates that they] stem from a common root: the inability to conceive of statehood in any terms other than nation-statehood, or, in a nut shell, to divorce the State from the nation. [74]

And then again, through an `interpretation of my formula,' Mancini links my rejection of European statehood to my apparent inability `... to conceive of a state not rooted in, and coinciding with, a nation.' (§IV) Even I, it seems, though implacably opposed to European statehood, am a crypto-idolater at that very altar of the Unholy Trinity which conflates State, Nation and Citizenship, which I had denounced.[75]

I acknowledge with phlegmatic sadness my many intellectual and other inabilities, which seem to become more severe with the passing years. But I do not think I suffer from this particular inability. Perhaps Judge Mancini should not have resorted to `interpreting my formula' (it is not, after all, the Treaty...) but relied, instead, on the actual text of my essay which seems rather explicit in acknowledging that States and nations need not be rooted in, or coincide with, each other.

This is what I have to say expressly on this very issue in the very article, which Mancini graciously cites in his piece:

It is worth remembering at the outset that national existence and even national vibrancy do not in and of themselves require statehood ... [76]

Evidently, I do not think that the continued existence of nations including, presumably, the various European nations within Mancini's would-be State, depends on each having their own State. That, indeed, is my point of departure in analysing the relationship of nation and State. It should not be surprising. The Jewish nation, to whose experience I point in the same piece as `... a tradition worthy of some consideration given the continuity of Jewish national survival for over three millennia' [77] has given its greatest contributions to civilisation in the very periods--most of its history--in which it did not have its own State.

Later in the same essay I become even more explicit. In dealing with the view which insists that nationality/citizenship have to coincide with the State--the classical view of the Nation-State, which Mancini attributes to me, I give

... some reasons to be suspicious of this view even at the statal level: Note first [I wrote] the impoverished view of the individual and human dignity involved in the Volk-State-Citizenship equation: is it really not possible for an individual to have very strong and deep cultural, religious and ethnic affiliations which differ from the dominant ethno-cultural group in a country, and yet in truth accept full rights and duties of citizenship and acquit oneself honourably? And to look at the other, societal, side of this coin: is it necessary for the state to make such a deep claim on the soul of the individual, reminiscent of the days when Christianity was a condition for full membership of civic society and full citizenship rights--including the right to have citizenship duties? Note, too, [I added in that same piece] that the view that would decouple Volk from demos and demos from State, in whole or in part, does not require a denigration of the virtues of nationality--the belongingness, the social cohesion, the cultural and human richness which may be found in exploring and developing the national ethos. It questions whether nationality in the organic sense, as a guarantor of homogeneity of the polity, must be the exclusive condition of full political and civic membership of that polity. Let me not mince my words: to reject this construct as impossible and/or undesirable is to adopt a worldview which ultimately informs ethnic cleansing.[78]

Am I not contemplating a State which, under one civic panoply could have more than one national grouping, indeed, more than one nation which is, presumably, the very construct Mancini advocates for Europe? My argument does not rest there but also makes empirical claims[79] and even gives an example of a bi-national State `... with at least two national groups but one citizenship.'[80]

This, the reader will note, is an argument which not only conceives of a State not coinciding with a nation but actually mentions one, and there are plenty others, even in Europe. It is, further, an argument which rejects in the strongest terms possible the need for, or the inevitability of, conflating State and Nation even at the Member State level. A fortiori this conflation would be doubly rejected as both unnecessary and certainly not inevitable at the European level.

Though I am not sure how I could have been more explicit, when someone misunderstands me, as Federico Mancini evidently has, I must accept the blame for not being clear enough in expressing my views and will have to try even harder next time.

Be that as it may, one thing I believe is clear: opposition to European statehood is not the result of an inability to conceive of European statehood as something other than a Nation-State.

[72]Curtin, D.M., Postnational Democracy. The European Union in Search of a Political Philosophy (University of Utrecht 1997) and see, again his reference to her in n 24.

[73]Text to n 22 et seq.

[74]Text to n 24. Emphasis in the original. Any association with Professor Curtin, even if only through an alleged shared inability, would be a badge of honour for me. From the way it is presented in the Mancini paper, the reader might have received the impression, surely unintended by Mancini, that Professor Deirdre Curtin herself stands for the first position supposedly so at odds with my own and that she, too, suffers from my inability. I understand that splendid lecture as conveying exactly the opposite sentiment to the one for which it seems to have been cited and is, thus, neither at odds with my own nor does it display, in my view, an inability to think of statehood other than in terms of nation state. In its soaring conclusion, on page 62, Curtin writes: `The attempt to develop what has been called postnational democracy is an effort to conceptualise a viable political entity beyond the nation state.' And then: `The effort is premised on the belief that there is no option of simply stopping the clock and returning to the safety and familiarity of the nation-state.' (Emphasis added.) As to her vision of the Union, on page 3 Professor Curtin writes: `[T]he philosophical potential of the Union lies in its challenge to the understanding of the state as the only possible locus of political community and of political identity.' Though I am notoriously not a `post-nationalist' and have written repeatedly about the new-found virtues of a liberal national identity, especially in a context of increasing tribalism, in its rejection of a Statal vision for the Union Curtin presents a vision with which I can identify (Cf, Weiler, The Transformation of Europe, (1991) 100 Yale Law Journal 2403, n esp. in § IV on Europe as Unity and Europe as Community) and one which Mancini, who believes that Europe as a democracy requires statehood, seems to reject.

[75]Weiler, `Does Europe Need a Constitution: Demos, Telos and the German Maastricht Decision,' (1995) 1 ELJ 219 at 223 (hereinafter, `Demos...').

[76]`Demos...,' loc cit, n 12, 247 et. seq. Though I do add: `... though statehood can offer the nation advantages, both intrinsic and extrinsic' id. I do not think anyone would deny that.

[77]Ibid, at 246.

[78]Ibid, at 251 (emphasis added).

[79]Ibid, at 243.

[80]Ibid, at n 64. One does not have to go to far shores to find states which are home to more than one national group: Belgium, the UK and, say, Spain are all variations on this theme.

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