Two Swords for Hegelian Supranationalism
by Kevin Ellul Bonici
A Constitution for a Single European State,Part 3
At the time of writing, Giscard d'Estaing released Parts II, III and IV of the draft EU Constitution. But I will not be technical in this third part. The whole Constitutional saga unfolds so predictably it offers no challenge of analysis. And with the pragmatisms surrounding the Summits at Thessaloniki and Rome, it is bound to become a case of bad soap, rendering it even unethical to analyse.
Giscard's latest bid, for example, offers 'reduced' powers for the proposed EU Presidency, as well as queued, rotating Commissioners so that each Member State could at some stage get to have a Commissioner (which makes no difference since Commissioners never represent their country, but are sworn to Union allegiance). There is even an offer for postponing the implementation of the new divisions of institutional powers till 2009.
Certainly a watered down draft would appease the worriers. As Peter Hain, the UK government representative at the Future of Europe Convention, most philosophically pointed out on BBC: we need not make a fuss since 75% of this draft Constitution is already included in the current EU treaties anyway. He also told us that now that the word "federal" has been stricken off the draft, it is evident that a "superstate" is not on the EU agenda. But that's Peter Hain, of course, a cross between Ari Fleischer and the ex-Iraqi Information Minister.
A Coin and Two Swords
In the first part I asked which cross-border areas cannot be sufficiently tackled solely by national parliaments. Not surprisingly, the cross-border areas that would appear to 'obviously require' Union competence – defence and criminal justice – are the ones that still remain under the control of national parliaments. I say 'not surprisingly' because this is where the remnants of unanimous voting lie – and every State has so far retained the swords of power. On the other hand, they seem to 'obviously require' Union competence only because it is now abundantly clear that a single State is what the EU project is about. It is not a serendipitous political adventure, as hitherto portrayed by europhiles, but a one- way pull towards a political black hole.
Today we witness a tug-o-war between those Member States that say they want 'less' integration, like the UK, Spain and Poland, or more, like France and Germany, with smaller Member States divided between one side and the other – and 'pure federalism', too. Yet this tug of war is not really about integration, but about chronology. It is about the timing of integration, and this very much depends on the Union's relations with the United States. A common agreement on the EU-US relationship affects both the areas of defence and criminal justice.
To these two areas many would add the economy as yet another last bastion of national control. But economic control is supposedly unheard of in a free market economy. So any talk of "economic coordination" under Union competence is as good as a Soviet five-year plan. Just like Lenin's 'new economic order', the Union order would be controlled by technocrats and bureaucrats. These are demi-gods who lend an ear only to large pan- European corporations that adore monopolistic gods.
In reality, the economy of Member States is already controlled by a multitude of Union laws, regulations, directives, guidelines, policies, or whatever one prefers to call these devices. As for Union taxation, indirect taxation already exists, tax harmonisation is well on its way and there is little doubt that direct taxation will one day become 'logically' required.
Meanwhile, the eurozone is here to stay and spread, even as the UK, Sweden and Denmark manage to stay out while each of their economies grows faster than that of the eurozone. However, the Euro is less about the economy than about politics. The Euro is not about hassle-free travelling, investment and commerce, and it's not even about tinkering with interest rates centrally instead of multi-centrally. Rather, it's about a single European State having a single coin controlled by a European Central Bank. Today every sound mind agrees that the Euro currency is part of the EU political project. As Commission President Romano Prodi proclaimed only last century, the Union must have its own coin and its own sword.
So now that the coin is largely under Union control, the sword is all that remains. The sword actually starts with two swords. One sword is directed outwardly against the external enemy, the other inwardly towards "the enemy within". Both swords cross paths in matters of international terrorism. The draft Constitution proposes that the external sword be under the control of the EU President and foreign ministry, while the internal sword would fall under the EU 'prime minister' through an 'area-of-freedom-security- and-justice ministry'.
Both these areas are free-falling towards the Union black hole.
The Sword Defending the Union
The draft Constitution lays down the roadmap towards a common defence system, ensuring a gradual build up where each step preconditions the following. It starts with the setting up of a common foreign and security policy (CFSP), following the old method of unanimous voting, that yields power only gradually, but effectively. Much of the unanimous voting, however, would concern whether to decide an issue by qualified majority voting or not.
Certainly in the current circumstances even the first step of having an effective foreign minister is on rocky grounds. The reawakened British public is not in the mood for EU foreign ministers and common defence policies, just as it does not appreciate the revolutionary undertakings of the Union Constitution, or the euro-coin, or a centralised criminal justice system.
Nor is the beleaguered Tony Blair, now deplete of his weapons of mass deception and still polishing his bruised image after brushing too closely with the neo-con agenda of George Bush, the archetypical American idiot as perceived by an overwhelming majority of British citizens. With Blair and his US-bandwagon allies in Europe, there is little prospect for a common defence system in the short-to-medium term. But there is of course the possibility of multinational combat and peacekeeping forces designed for specific areas and special circumstances. So the future is not a matter of whether some form of Union defence system would exist, but what relationship this defence system would have with the US. And to answer this question one would first need to know at what stage the US global crusade is – whether the neo-cons would have multiplied, metamorphosed or perished. In any case, the new Union power would have to relate with its neighbours to the south and the Middle East - it would have to decide on its relationship with the Arab States as they evolve. We don't know the life-span of the moderate Arab leaderships, nor do we know much about the underlying strengths of the Islamic masses and their political leaders. And we don't know the outcome of the US quest to eradicate dissenting governments across the globe. So the wrong steps today could mean serious clashes in the future.
In today's world, the greatest justification for a European defence system is a US imperialist power gone awry – that's the way most Europeans see it, especially in France, Germany and their satellites. Today's divisions can only postpone a centralised finality with a single army. The question of which Member States will ultimately form a part of this Single Force is of course another matter. But this Force will grow in layers, as core continental States led by Germany and France integrate their forces and start the ball rolling. The ways in which forces may be integrated or coordinated around different sorts of 'common policies' are numerous, each according to the circumstances at the time.
With criminal justice it is slightly different, even if the centralising aim is the same.
The Sword Defending the Union's Order
Local law enforcement is like rubbish collecting: it's an area where the EU has traditionally had little interest as far as 'exercising shared competence'. This, coupled with the fact that every Member State guarded its justice and home affairs ministries, meant that the growth of a common criminal justice system has taken longer than other areas.
But circumstances have changed and policing the area covered by the EU's external border gives the Union a great opportunity to gain hold of a very essential force over social control.
In Part III of the constitutional draft, under Title III ("Policies and Internal Action"), we find Chapter IV: AREA OF FREEDOM, SECURITY AND JUSTICE. Here the Union is empowered to ensure freedom of movement across internal borders, while also ensuring Union border checks and common policies on asylum and immigration. The Union is also expected "to ensure a high level of security by measures to prevent and combat crime, racism and xenophobia," as well as measures of coordination ensuring cooperation between police and judicial authorities of different Member States (Art. III-153).
This action would be taken by the Union in accordance with the guiding principles of proportionality and subsidiarity (Art. III-155), which essentially means that Union competence could go down to the levels the Union believes sufficient, and as far as unanimous and majority voting would allow.
It makes dull reading, but I'll just breeze through the functions of Eurojust, the European Public Prosecutor and Europol, and no analysis would be required in this regard.
Eurojust's mission is "to support and strengthen coordination and cooperation between national prosecuting authorities in relation to serious crime affecting two or more Member States or requiring a prosecution on common bases, on the basis of operations conducted and information supplied by the Member States' authorities and by Europol."[Art. III-169(1)]
To this effect, "in order to combat serious crime having a cross-border dimension, as well as illegal activities affecting the interests of the Union, a European law of the Council may establish a European Public Prosecutor's Office from Eurojust . . . " [Art. III-170(1)] who will be "responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of and accomplices in serious crimes... and of offences against the Union's financial interests, as determined by . . . European law . . . " [Art. III-170(2)].
Genuine civil libertarians across Europe are still concerned about the implications of a European Arrest Warrant, yet the above makes the arrest warrant sound like a small detail.
There is more. Section 5 of Chapter IV concerns "Police Cooperation". European law would establish measures of data "collection, storage, processing, analysis and exchange . . . " and " . . . common investigative techniques in relation to the detection of serious forms of organised crime," (Art III-171) while "Europol's mission is to support and strengthen action by the Member States' police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member Sates, terrorism and forms of crime which affect a common interest covered by a Union policy."[Art. III-172(1)].
"Europol's structure, operation, field of action and tasks" would be determined by a European law. These tasks include the collection and processing of information and its exchange, "the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competent authorities or in the context of joint investigative teams, where appropriate in liaison with Eurojust." [Art. III-172(2)].
That's wide enough. It leaves no doubt on who's in charge, particularly in matters concerning "illegal activities affecting the interests of the Union", or "forms of crime which affect a common interest covered by a Union policy." True, these powers can take effect only through a unanimous Council vote after the approval of the European parliament. But once they start moving, unanimous voting is lost forever. In other words, the veto is relinquished only once for every layer of competence ceded. We've seen this process in action with the 2002 amendment of the 1997 Data Privacy Directive, where privacy became a joke and the retention of data by telecom providers is ordered specifically for use by security forces when required.
With every new action that is criminalised by EU law we note that it involves cross border action. And it cannot be otherwise, for conventional crimes on the person and property have long become universal and that is what local police authorities are mainly responsible for. The cream of the agents are reserved for security branches that would brush shoulders with Europol agents covering a whole array of cross border crime – from prostitution rings and drug trafficking, to money laundering, arms trafficking, cybercrime, financial crimes, illegal immigration and of course terrorism. Much of this cross-border crime is made up of 'false crime' – it is generated by a mixture of victimless and/or consensual crimes, interpretable complex laws and security data build-up. This is a highly criminogenic combination in a field where crimes of opportunity have lured whole sub-cultures, and not just "professional" criminals, onto the trail of illicit gains. These are crimes that require extensive data collection and highly intrusive investigative techniques. And as in any totalitarian system, the mainstream is hardly aware of what goes on.
In a democracy, social control is a messy affair – so messy, one can see its failure today serving as a precondition that justifies a totalitarian system tomorrow. As the State concocts more criminal legislation, it faces more crime from more criminalised segments of society, and it will have to react in a way that creates even more crime, requiring more legislative countermeasures and more repressive investigative techniques that undermine and indeed ridicule the very essence of democratic values in a free society. As a result the so-called criminal underworld is forced to evolve like a subterranean sub-species that exists without being measured. It grows on legislative criminalisation and goes deeper underground through increased enforcement measures.
Due process and crime control don't mix well. So due process gives way and crime control becomes the self-fulfilling justification for a totalitarian system that is nonetheless spiced with Enlightenment romanticism and post-WWII rhetoric. Sadly, the nation states of Europe have long embarked on over-criminalisation and repressive investigative techniques, much of it borrowed from the US. What the Union does is that it centralises and extenuates these powers into a far more powerful totality. This renders the individual citizen into an even smaller entity in the eyes of the grand totality of the rule of Union law, which widens its tentacles across more spheres of human activity, particularly market-related.
We live at the end of an era that preconditions the next, yet we haven't the slightest idea of where we stand today.
The Spirit of the Times
Identifying one's own era is a difficult task. Eras are identified only after the passage of time, often requiring re-evaluation. But what if we could assess our times through past political perspectives? What would past political thinkers, for example, have thought about this draft Constitution and the emerging Union in general?
Flippant as it may sound, this is my light version:
The analytical Machiavelli would have smiled knowingly at the extent to which rulers remain unchanged since his time, even if today their actions are subtler and apparently milder. The absolutist Hobbes would have admired its clockwork recognition of a sole Union power.
Locke, however, would have pondered on why the Age of Reason should have become so irrational. And Montesquieu, the ultimate radical, would have seen it as the creation of a monolithic instrument of despotism that destroys European diversity through homogenisation. The freedom-loving Rousseau would have cringed since he believed that devolved power is essential to freedom, while Paine would have been amazed at how the Rule of Law could become so spurious and despotic towards the Rights of Man. As a true liberal, Mill would have questioned the new morality of the new laws which destroy genuine social aspirations.
The anti-revolutionary Burke would have said: 'Look where your Enlightenment rationalism got you! You have broken the continuity with the past and now you're attempting yet another "French" revolution to rid yourselves of the common people's 'private stocks of reason'!
Marx would have been intrigued by the 'inevitability' of a wider class struggle inside a larger political economy under one government, while Nietzsche might have hoped for the coming of the age of the pan-European Übermensch that would rule over the uncultured underlings . . .
Hegel would have been exalted by its totalitarian features aimed at the collective good of a "European Nation State" – a Supranational State where "all are free", just as he had predicted for the German Nation State of the 1800s.
And yet, the 19th century sociologist, Emile Durkheim, would have explained it all through anthropological reasoning. He would have told us that unlike primitive societies, which are simple and have only rudimentary informal controls, civilised societies are structurally complex, and the more civilised they become the more laws they require. This is an awkward situation. For one would expect civilised societies to require fewer laws and punishments, not more. Perhaps it all depends on whether the governing principle is despotic or enlightened – the 'Spirit of the Times' . . .
And this is a key Aristotelian concept: despotism as defined not by the nature of the laws but by the spirit of their enforcement.
Montesquieu, the radical 18th century philosopher, divided governance into three main types: despotic, monarchic and republican. For Montesquieu, these forms of government were not distinguished by their structure as much as by their style – the mood and attitude of the rule, the rationale behind its governing principle, its spirit. With despotic rule the governing principle is 'fear'. With monarchic rule (referring here to feudal monarchy) it is 'honour'. And with a republican government it is 'virtue' – not necessarily democratic virtue, but rather a higher type that ensures the capacity of a republic to thrive and survive beyond time.
According to this Aristotelian concept it is not the structure or the laws, but the spirit of the ruling body that defines whether a government is despotic or not. So in the same vein, it is not the inscribed fundamental rights that define a civilised society, but the spirit of their observance.
Today's Western societies have developed on the principle of the 'rule of law' as seen through the Enlightenment and past-WWII awareness of human dignity and integrity. But the 'rule of law' has come to be completely backed by the rule of fear, not virtue, not honour. The spirit of these times has led to an extravagant increase in legislation in the hope of imposing order. This process has increased the powers of the Western State and its enforcers, and has increasingly focused on punitive measures in order to sustain the 'rule of law', creating the criminalised society that we are today, controlled only by fear.
The general surveillance of European citizens is still in its infancy, and the post-WWII spirit still survives today. But if this spirit continues to diminish, then the laws that exist today are more than the Gestapo or KGB had required in their own time, especially anti- terrorist, anti-laundering and data-retention laws, which blatantly overturn human rights standards without a flicker of the eye. These are laws that may act as tools for the targeting of political groups and minority sub-cultures.
The Advent of Totalitarianism?
It is not difficult to recognise the totalitarian outcome that pre-exists in today's conditions. Apart from modern techno-sophistication (and sophistry), there is little difference between the new wave of undercover police networking and those of the notorious thirties. Should a hypothetical dictator take over the EU, the laws sustaining his power would be sufficient, requiring only different interpretations.
Indeed, totalitarianism, fascism, Nazism and Sovietism are all European systems of government and their seeds still lurk inside our brains to sprout into modern versions of the old. Even the seeds of Inquisition still persist. The seeds are here just as the seeds of Italian fascism had existed before they flourished with an awakened sense of nationalism with Italy's unification in 1870. So was the case with Germany, that other late-comer to the Hegelian club of Nation States.
It is not difficult to envision, for example, the future of the EU propaganda machine. This started as a benign, lively way to boost European identity, but it could degenerate into a very solemn department promoting a Hegelian type of European "nationalism". The pre- conditions exist. This, coupled with increased powers of telecommunication surveillance, could lead to political targeting, particularly of criminalised dissidents and minority groups, which are forced to the status of "terrorist groups".
The state of 'political incorrectness' in being critical of the EU is also very evident across continental Europe. The seeds of totalitarianism are sown, ready to sprout as soon as enough moisture surrounds them, and that could be supplied by the EU Constitution, whatever its initial shape and form. In today's Europe, if you are EU-critical because you happen to believe in the freedom of the individual and his or her society, then you're a 'nationalist'. And if you're a nationalist, then you're a 'far-right extremist' and by definition you might even be a terrorist. Yet being critical of the EU is not about the promulgation of nationalism, but about the avoidance of Hegelian supranationalism. Even the word 'nationalism' has different meanings in different countries. In Germany nationalism might mean totalitarianism and tyranny, but to many in Malta nationalism signifies freedom and self-rule.
It seems that investing in one European State means placing all the eggs in one basket, which would not happen in a socially unified union made up of Free States. Instead of granting more freedom to the peoples of Europe after allowing them to open their doors to each other's home, the EU is collectivising 500 million of them into a single European home with centralised rules and standardised punishments. So if you've freed movement across borders and yet you want to centrally control it by regulating, monitoring and enforcing upon it, then the word 'freedom' comes out strikingly ironic. In the longer term you would have freed nothing because you'd have created a larger version of the Hegelian Nation State with a mishmash of the "European whole".
Other Works by Kevin Ellul Bonici
from The Laissez Faire Electronic Times, Vol 2, No 24, June 23, 2003