Guest blog by Jaap Hoeksma, Philosopher of Law, Director of Euroknow and Creator of the Boardgame Eurocracy.
In their recent study on EU constitutional law Allan Rosas and Lona Armati recall the tale of the blind men and the elephant.1 The story is about six men of Indostan, to learning much inclined, who went to see the Elephant (though all of them were blind) that each by observation might satisfy his mind.2 One man feels the elephant's knee, another his tusk and a third one his trunk. They all arrive at different conclusions about the nature of the Elephant, notably the sixth one who seizes the animal at his tail. After their explorations they engage in a heated debate about the nature of the Elephant. In his wisdom, the poet concludes that each of the discussants were partly in the right and all of them was wrong.
Applying the metaphor to the European Union, the authors express sincere doubt as to whether it will ever be possible to define the EU. It depends on the perspective of the beholder, which she or he is likely to conclude about the nature of the Union. The present blogger tends to simultaneously agree and disagree with the authors. He concedes that the perspective from which one investigates the EU, may determine to a large extent the conclusions which that person is likely to draw. A banker from Frankfurt is prone to perceive the EU differently from an environmental campaigner in Lapland. This does not mean, however, that it should be impossible to define the EU. The purpose of this blog is, on the contrary, to describe the Union from various perspectives in a number of different ways.
According to ardent supporters of the Westphalian system of International Relations the EU cannot exist and therefore should not exist. In their analysis, a public organisation of states and citizens is an anomaly, which defies definition. They argue that the EU should either evolve towards a federal state (Verhofstadt) or return to an area of free trade (Cameron).
As the EU not only consists of states but also of citizens, it should be tried to describe the EU both from the perspective of its member states and from that of its citizens. The EU is a work in progress. It has evolved from the 'bits and pieces' of the 1992 Maastricht Treaty3 to the democratic polity established by the 2007 Lisbon Treaty, which entered into force on the first of December 2009. Consequently, the current effort is based on this treaty.
The Treaty of Lisbon, which came to replace the abandoned Constitution for Europe, puts beyond doubt that the member states are the 'Masters of the Treaties'. They have established the Union in order to attain common goals. To this end, they confer competences to the EU, but competences which have not been conferred, remain with the constituent states. Accession to and membership of the EU requires the member states to respect strict principles of democracy and the rule of law. In addition, article 2 TEU stipulates that the Union itself is also founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. The EU is therefore more than a traditional union of democratic states. The hallmark of the EU is that it also aspires to function as a democracy of its own. From the governmental perspective, the EU may therefore be defined as a Union of democratic states based on the rule of law, which also constitutes a law-based democracy of its own.4
The democratic aspirations of the EU are enshrined in articles 9-12 TEU. According to article 10, para 1, the functioning of the Union shall be founded on representative democracy. In the same vein, the third paragraph of this article underlines that every citizen shall have the right to participate in the democratic life of the Union. From a citizens' perspective, the EU may therefore be defined as an international polity, in which the citizens are entitled to participate both in the national democracies of their countries and in the common democracy of the Union.
At this juncture, it may be clarified that the description of the EU from the diplomatic viewpoint still uses the vocabulary of the Westphalian system, albeit that the entity portrayed is incompatible with that model. The citizens' definition, however, is beyond the Westphalian language. In the prevailing template, the term 'common democracy' is void and without meaning. The fact that an academic term is without meaning in one model, while it is essential for the alternative template, may in itself point at the incompatibility of the two paradigms. Taking the governmental and civic perspective together, the EU may be defined beyond the Westphalian paradigm as a Union of citizens and member states which functions as a common democracy.
In an article published after the 2014 EP-elections Nicolaïdis and Youngs argue that there is no such thing as a big bang theory of European democratisation.5 Yet, the present blogger suggests that, in order to understand and explain the EU, the diplomatic paradigm of the Westphalian system of international relations should be substituted for the civic perspective of democracy and human rights. Such a swap will set aside the perennial dilemma of either state or union of states and give the citizens a sense of the direction in which their Union may develop.
Finally, it should be memorised that, ever since the foundation of the EU in 1992, artists have endeavoured to give Europe a soul.6 Connecting their unceasing efforts to the political developments described in this blog, it may be suggested that the Soul of Europe lies in her common democracy.
1 Allan Rosas and Lorna Armati, EU Constitutional Law, 2d edition, Oxford 2012
2 Quotation from the poem Blind Men and the Elephant by John Godfrey Saxe
3 Deirdre Curtin, The constitutional structure of the Union: a Europe of bits and pieces, in: Common Market Law Review, vol 30, issue 1, 1993
4 Jaap Hoeksma, The EU as a democratic polity in international law, Den Haag 2011
5 Kalypso Nicolaïdis and Richard Youngs, Europe's democracy trilemma, in International Affairs, vol 90, issue 6, November 2014