Jean Monnet Center at NYU School of Law

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`Democracy is the end, states, as we have known them, are but means' says Mancini in his concluding words, explaining, with exquisite tongue-in-cheek, that he is not, after all, opposed to the dream of a stateless democracy, though for it to come about, one would need a miracle!

Let me take this as a cue for my final consideration which is not exactly about democracy and not even, in the deepest sense about demoi, and nations, and States. It is an invitation to think about what the Community (which is now, unhappily, called Union) is partially about. The argument is not historical or hermeneutic--it is not about what the Founders wanted or what the Treaties mean. It is the values which we may wish to associate with the Treaties and which, in my view, are consistent with its spirit.

Democracy, dear friend, is not the end. Democracy, too, is a means, even if an indispensable means. The end is to try, and try again, to live a life of decency, to honour our creation in the image of God, or the secular equivalent. A democracy, when all is said and done, is as good or bad as the people who belong to it. A democracy of vile persons will be vile.

Europe was built on the ashes of World War II, which witnessed the most horrific alienation of those thought of as aliens, an alienation which became annihilation.[97] What we should be thinking about is not simply the prevention of another such carnage--that's the easy part-but about dealing at a deeper level with the source of these attitudes. In the realm of the social, in the public square, the relationship to the alien is at the core of such decency. It is difficult to imagine something normatively more important to the human condition. It is not surprising that, according to tradition, the most ubiquitous norm in the Pentateuch is that which is designed to shield the alien.

There are, it seems to me, two basic human strategies of dealing with the alien and these two strategies have played a decisive role in Western civilisation. One strategy is to remove the boundaries. It is the spirit of `come, be one of us.' It is noble since it involves, of course, elimination of prejudice, of the notion that there are boundaries that cannot be eradicated. But the `be one of us,' however well intentioned, is often an invitation to the alien to be one of us, by being us. The strongest manifestation of this has been the supersessionist tradition of Christianity.[98] Vis-à-vis the alien, it risks robbing him of his identity. Vis-à-vis one's self, it may be a subtle manifestation of intolerance. If I cannot tolerate the alien, one way of resolving the dilemma is to make him like me, no longer an alien. This is, of course, infinitely, better than the physical annihilation. But it is still a form of dangerous internal and external intolerance.

The alternative strategy is to acknowledge the validity of certain forms of bounded identity but simultaneously to reach across boundaries. We acknowledge and respect difference (and what is special and unique about ourselves as individuals and groups) and yet we reach across differences in recognition of our essential humanity of being all born in the image of God, or the secular equivalent. This, I think, is the essence of Mosaic law on this issue. [99]The early Sages explicate the meaning in their rendition of Leviticus 19.34: But the stranger that dwelleth with you shall be unto you as one born among you, and thou shalt love him as thyself; for ye were strangers in the land of Egypt: I am the Lord your God. Rashi [100] explains: I am the Lord your God: Your God but also his God. Rabbi Saadia Gaon[101] explains: I am the Lord your God: I am the God of both of you. Rabbi Abraham Iben Ezra[102] explains: I am your God: I am one God when I see you [together]. Hermann Cohen (1842-1918), the great neo-Kantian philosopher of religion, in an exquisite modern interpretation of the Mosaic law on this subject captures its deep meaning in a way which retains its vitality even in today's Ever Closer Union. It has been usefully summarised as follows: `[T]his law of shielding the alien from all wrong is of vital significance.... The alien was to be protected, not because he was a member of one's family, clan, religious community or people; but because he was a human being. In the alien, therefore, man discovered the idea of humanity.' [103] What is significant in this are the two elements I have mentioned: on the one hand, the identity of the alien, as such, is maintained. One is not invited to go out and, say, `save him' by inviting him to be one of you. One is not invited to recast the boundary. On the other hand, despite the boundaries which are maintained, and constitute the I and the Alien, one is commanded to reach over the boundary and love him, in his alienship, as oneself.[104] The alien is accorded human dignity. The soul of the I is tended to not by eliminating the temptation to oppress but by maintaining it and overcoming it.

My opposition to European statehood is not rooted, thus, in a per se dislike for the State (or the nation). Indeed, I have defended the virtues of the nation and of nationality even in its Statal form. Those virtues are accompanied, however, by the potential for `boundary abuses' (internal and external) that State power may unleash. My fundamental appraisal of the Community is that it is a political structure and process which, at one and the same time, both `saves the States of Europe' and also constrains them. It is a remarkable and unprecedented political arrangement and I would hate to see it replaced by a State.

We have inherited a Europe of States from which much good but also much grief has come. States (and their constitutional courts) certainly get in the way in some respects. And yet, I do not favour the creation of new States such as a Scotland or a Catalan State since I resist the notion that in the current liberal condition of Europe nationality requires statehood. But I also find unappealing the notion of a European State for the same reason I find unappealing the notion of a European nation conceived in the thicker organic sense. The very existence of a Europe of individuals with individual identities, a Europe of nations with the boundaries created by distinct national identities and a Europe of States with the differently distinct statal boundaries, which forces one both to acknowledge difference and to reach across in the deeply committed way which membership of the Community entails is what makes the European postwar experiment so special and, arguably, worth preserving even if it does not have quite the power and quite the constitutional clarity as a State would.

Let's just forget about a European State and start thinking seriously, really seriously, about, say, democracy?

[97]Today one speaks of the `other.' The Pre-Moderns spoke of the "alien" with, I believe, no less insight and self-awareness. In the Community context wonderfully evocative is I. Ward, The Margins of European Law (1996).

[98]Cf, R. Kendal Soulen, The God of Israel and Christian Theology (Fortress 1997).

[99]Here are some expressive examples: Ex.22.20: And a stranger shalt thou not wrong, neither shalt thou oppress him; for ye were strangers in the land of Egypt. Ex. 23.9: And a stranger shalt thou not oppress; for ye know the heart of a stranger, seeing ye were strangers in the land of Egypt. Lev.19.33: And if a stranger sojourn with thee in your land, ye shall not do him wrong.

[100]Rabbi Shlomo Yitzchaki circa 1040--1105 CE Earliest edition of his commentary published in Reggio di Calabria, Italy.

[101]circa 882-942 CE Earliest edition published in Arabic in Constantinopol.

[102]circa 1089-1164 in the earliest edition published in Naples.

[103]J.H. Hertz, Commentary to the Pentateuch 313 (1980 2nd ed.) explicating H. Cohen, Religion der Vernunft aus den Quellen des Judentums, translated as Religion of Reason Out of the Sources of Judaism Chs. 5, 8 and 9 especially 125 et seq

[104]It is not as if, according to Mosaic law, the alien has not duties towards the `host' community. And finding the balance between the two will always remain difficult and potentially explosive.

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