Jean Monnet Center at NYU School of Law

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IV The Exclusionary Demos?

Let us then revert to Europe. Why couldn't a European state, which would of course be based upon material and social conditions incomparably more favourable than those present within South Africa and India, attain a level of democracy higher and denser than the latter? Stripped of its comparative dimension, this question should also be addressed to Professor Weiler who is similarly convinced - although, as we have seen, for very different reasons - that a statal Europe is not a desirable goal. `It would be more than ironic' - he says in the key passage of one of his recent essays - `if a polity set up as a means to counter the excesses of statism ended up by coming round full circle and transforming itself into a (super)state. It would be equally ironic if the ethos which rejected the boundary abuse of the Nation-State gave birth to a polity with the same potential for abuse.'[42]

The first of these hypotheses strikes me as unrealistic. There is in Weiler a deeply-rooted and, as far as I am concerned, entirely justified conviction that our political world is still dominated by the ethics of sovereignty and might;[43] but I do not believe that it reaches so far as to lead him to include in the notion of `excesses of statism' the accepted monopoly of violence within the boundaries and the willingness to use violence against outsiders attacking those boundaries, which are the irreducible minimum of the concept of state.[44] I think rather that what worries Weiler is the possible recourse by the authorities of a statal Europe to more or less coercive pressures aimed at imposing a single or hegemonic culture, such as a tendentious teaching of history in the schools, the brazen fostering of a specific language etc. - or, in other words, a replica of the policies which a number of those unitary (but also federal) nation states which are bedevilled by one or more untamed ethnic minorities have adopted and continue to adopt with a view to creating an overarching and all-encompassing identity, a homo americanus, gallicus, hispanicus and so forth.[45]

As for myself, my unassuming guess is that such policies, originating as they do from the assertiveness or the anxieties of an ethnic majority (the Wasps, the speakers of the langue d'oïl, the Castilians), would be simply unthinkable in a European Union endowed with statehood. At most, its authorities might, following in the footsteps of the present-day European Commission, launch campaigns designed to instil and fortify what Professor Habermas calls the citizens' `constitutional patriotism, ` that is the only feeling of belonging which an identity as loose and frigid as the European one can be expected to engender. Any brasher step than this in the direction of integration or assimilation, if it were really to be attempted, would be repelled by those antibodies which history has rendered all too effective.[46]

But Weiler is not only short on realism. If my interpretation of his formula is correct, he is also strangely unable, much like his German antagonists, to conceive of a state not rooted in, and coinciding with, a nation. And even more revealing of this inability is his assumption that a statal Europe would have the same potential for boundary abuse as the nation states of old. Why on earth the same potential if the only possible basis for a statal Europe would be a demos relying merely on the bond of civic loyalty? José Ortega y Gasset wrote that Isabel of Castilia and Fernando of Aragon joined body, soul and forces in order `to flood the planet with the energies' of the new Spanish nation.[47] Flood the planet Spain actually did as soon as the Reconquista was completed, as did England and France after the accession of Elizabeth and Napoleon, or Germany after the proclamation of Empire. But how could Europe do so, considering that its energies would not draw their sap from any emotional form of nationhood and would coalesce not as a result of a stirring event, but in the course of a slow, laborious and desperately matter-of-fact process of convergence on the part of its Member States?

A state, of course, but also the merely supranational entity which Weiler seems to prefer, has boundaries - and boundaries include and exclude, that is to say they divide if not always friends from foes, as Carl Schmitt claimed, then certainly `us' from `them.' At this point, however, I will make one more unassuming guess. In the case of a European state, the `us-them' polarity would primarily take shape in the areas of free trade and movement of persons - and not necessarily in forms more rigid or `excluding' than at present.[48] In particular, as far as immigration is concerned, a central authority empowered to distribute refugees and asylum-seekers over the whole territory of the Union would probably be in a position to host more rather than fewer of them and, at the same time, to intervene to mitigate those conflicts which are currently flaring up in all the Member States. As for a single foreign policy and its obvious bedfellow, a united defence apparatus, I, though no expert, would welcome them as a blessing. One need not recall how much the conflicting interests and historical memories of the Member States contributed to the mismanagement of the crisis which led to the dissolution of Yugoslavia and to the civil war that ravaged Bosnia. It suffices, in a more recent context, to imagine how many horrors Rwanda, Burundi and the Congo might have been spared if the Union, and not one or other of its states with post-imperial interests in mind, had had the power to promote effective humanitarian action under the aegis of the United Nations.

[42]Weiler, `Does Europe Need a Constitution? ... ` loc cit, n 27 at 248. Newman, op cit, at 210 seems to go even further when he writes that: `it is not clear that regional supranational entities would necessarily be any less expansionist than the nation-states that they replaced.'

[43]On this attitude see Newman, op cit, n 27,at 10 et seq.

[44]Wallace, op cit, n 10 at 62.

[45]Mancini, op cit, n 39 at 26 et seq.

[46]Cf, Reif, `Cultural Convergence and Cultural Diversity as Factors in European Identity, ` quoted by Newman, op cit, n 9 at 207: `Any conceivable `European Political Union' would be ... a multinational and multilingual political system ...; it would not be transformed into a one-nation-state aimed at homogenizing societies and cultures.' These sensible remarks should dispel C. Gamberale's fear that `the abstract construction of fortress Europe ... [could be transformed] into a concrete new ethnic Europe': see `National Identities and Citizenship in the European Union' (1995) 1 European Public Law 633, at 659.

[47]Ortega y Gasset, España invertebrada. Bosquejo de Algunos Pensamientos Historicos, Revista de Occidente en Alianza Editorial, 7th ed., 1996, at 41.

[48]For the `bleak record' of the Community institutions in dealing with would-be migrants and refugees even after the establishment of the `Third Pillar' in the Maastricht Treaty, cf, Newman, op cit, n 9 at 163 et seq.

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