Vol. 9 No. 8 (August 1999) pp. 354-359
THE CONSTITUTION OF EUROPE: ESSAYS ON THE ENDS AND MEANS OF EUROPEAN INTEGRATION by Joseph H. H. Weiler.
Cambridge: The Cambridge University Press, 1999. 364 pp. Cloth $64.95. Paper $24.95.
Reviewed by Gordon Silverstein, Assistant Professor of Political Science and Law, The University of Minnesota.
As students of American public law discover the power of comparative study to illuminate and differentiate the
general from the particular in the American experience, more and more are thrilled to stumble upon the European
Court of Justice and the extraordinary role it plays in the political and economic
integration of the European Union. The Court plays a pivotal role in turning a set of international economic treaties
into something approaching a constitution.
As anyone who has dabbled in this area soon discovers, research tends to fall into two distinct and firmly separated
disciplines: International relations on the one hand, and European public law on the other. Harvard Law School
Professor Joseph H. H. Weiler, one of the most prolific scholars working on the European Court,
is determined to bridge the disciplinary divide as the only way not only to understand why the Union looks as it
does, where it is going - and most importantly, what difference it might make if one path is followed and not another.
In this collection of a sampling of his published work, Weiler not only assembles his own thoughts over the past
decade or so, but he tries to make the whole greater than the sum of the parts - organizing his essays to reflect
the evolution of his thought, and adding important new material that both links the material together and brings
some of the chapters up to date. Here (as is often the case in Weiler's writing and thinking) the logical organization
follows a Biblical pattern. When Moses
brought forth the Book of the Covenant, Weiler reminds us, the people agreed that they would first do, and then
hearken. In Weiler's view Europe followed the same pattern: First there was the "doing" - the nuts-and-bolts
business of building the Union, its institutions, and its practices. A second phase began with the Treaty of Maastricht
in 1992, a phase of "hearkening" when Europe should have begun to contemplate what it had done and to
think about why and where it was going - and where it should be going as well.
The Maastricht Treaty was a crucial "constitutional moment" in many ways: It converted an international
treaty into something approaching a constitution, but it did so without a full comprehension of what Europe had
become and with little thought about what it should strive to be. The Maastricht moment also marked a point at
which the European project finally began to move beyond the "doing" of the elites, and into a phase of
the "harkening" of the masses. "At the popular level," Weiler writes, "Maastricht was
a shock. Public opinion was more shocked to discover that which was already in place than that which
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was being proposed, and shocked the powers that be by registering defiance and skepticism" (p. 8).
But Weiler is interested in more than a neat academic tool: There is a deep anxiety running through these pages,
but an anxiety lightened by hope. Weiler seems profoundly disappointed by the failure so far to engage in a meaningful
debate about the "ends" or purposes of the European Union. The real fear isn't so much
that the "hearkening" period might generate the wrong ends - the real fear is that it might not generate
any ends at all. Europe as merely a means is perhaps Weiler's greatest fear.
The hope is expressed, however, in his effort to engage in "hearkening" - and to do that, Weiler understands
that he must bridge the disciplinary lines that often divide us. To find a purpose, to help build a European polity,
Weiler's thinking and writing ranges deep into political theory, economics, international relations, law, philosophy
and religion.
Weiler uses the "doing" and the "hearkening" division to organize his book. His first four
chapters focus on the "doing" - the structural issues initially confronted by the political elite of
Europe in the post-war apocalypse: questions of the supremacy of European law, the direct effect of European law
on national courts, legislatures, and individuals; how a unified Europe might interact with other nations, and
how Europeans' collective rights and responsibilities will reshape or constrain their own domestic conceptions
of the balance between the individual and the community. The second half of the book, the "hearkening,"
focuses on deeper issues of meaning - the questions of democracy, legitimacy, definitions of citizenship and identity
that confront a mature European Union.
After a brief preface and a well-conceived introduction, Weiler republishes what is arguably his most cited article,
an essay originally published in the YALE LAW JOURNAL (Weiler 1991). It is an appropriate place to start, for
here Weiler demonstrates the extraordinary role of the European Court of Justice (ECJ) in driving the transformation
of European law from a set of international trade treaties governed under traditional assumptions of international
law into something far closer to a
domestic system with the European Court of Justice serving as the final arbiter of a something approaching a European
constitution. Somewhere along the way the Court helped to eliminate the traditional "exit" option that
is always hovering in the background of any international organization.
This chapter is important as well because Weiler serves notice to those who glance at the (ECJ) and see in it a
rerunning of the American experience. The European Court, like the American, created its own legitimacy, and used
doctrine, personality and process to turn a weak institution shunted off to the relative obscurity of the Grand
Duchy of Luxembourg into arguably the most effective institution in the European Union. The ECJ also seemed to
follow the American pattern of serving as an agent of the consolidation of national power, without passing through
the growing pains the American Court experienced in the era following the Civil War.
The warning is simple: The European story is not one of a steady trip from the realpolitik of international relations
to the paradise of supranationalism where sovereignty withers and dies. The
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institutions of governance in Europe are very different, and the product is not at all the same. The transformation
of Europe is not into a supranational United States of Europe, but rather it is the story of the evolution of a
new form of political interaction, something he hails as "infranationalism" -- a world where mid-level
officials, committees, and key private and semi-public actors have come to create a new sort of political/institutional
structure. Infranationalism, Weiler argues, "is not constitutional or unconstitutional. It is outside the
constitution." It "renders the nation and state hollow and its institutions meaningless as a vehicle
for both understanding and controlling government." (p. 96).
Weiler pursues this theme of transformation with a chapter on the Court's struggle with fundamental rights. If
the Court was to transform from an body of international law to a legitimate and authoritative Court, and if Europe
was to transform from a collection of sovereign nations into something more coherent and cohesive, it could only
do so by asserting and enforcing the principle that European rules would have direct effect on citizens in each
Member States, and by asserting that in any conflict between European law and Member State law, the European law
would be supreme. But, if the Court was going to "assert the direct effect and supremacy of European law --
vesting huge constitutional power in the political organs of the Community," it would have to postulate "embedded
legal and judicial guarantees on
the exercise of such power" (p. 107).
After a chapter that carefully considers the problems of the evolution of a new form of federalism in the realm
of foreign relations, Weiler closes the first half of the book with a through examination of the ECJ, reviewing
the Court's sources and resources, looking at Member State judiciaries, Member state governments and bureaucrats
and at the intimate relations between the European Court and academia (a far more symbiotic relationship than exists
in the United States). Weiler reviews key arguments for how and why the Court was able not only to coexist with
these other forces, but also to gain the cooperation of Member State
judiciaries and politicians alike. This review should be able to generate any number of doctoral dissertations,
not just on the European Court and European law, but on the relations of judicial and political institutions, the
role of doctrine, and the shaping of judicial preferences.
Weiler argues that even though the Court is still a work in progress, the initial honeymoon is over. Once again,
Maastricht is his demarcation, having signaled a profound shift in the political and social environment in which
the Court operates. At this point, Weiler declares the "doing" to be done, and turns to the
"hearkening." His attention shifts from institutions and doctrine to far more conceptual, theoretical
and philosophical concerns.
Weiler opens this section of the book with an effort to unearth what he calls the "geology" of European
constitutionalism, using the tools of legal doctrine as well as social science in general, and the study of international
relations in particular. Law, he argues strenuously, must pay attention to social science, and it must shift away
from the pre-Maastricht focus on the vertical relationship of the Community with and against the Member States.
Weiler urges us instead to start thinking along the lines of European scholars such as Neal MacCormick, Ronald
Dehousse and Christian Joerges who argue for a more diffuse, more poly-centered, less
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hierarchical approach to European constitutionalism.
In a chapter titled "European Democracy and its Critics," Weiler puts a few more cards on the table,
acknowledging that post-Maastricht Europe may be "an ideal which has lost its mobilizing force" (p. 239).
What were those ideals? Weiler argues for a trinity: Peace, prosperity, supranationalism. The obvious response
is that all three have been achieved, and it is time to simply manage the happy result. Weiler would reject this
analysis.
Has peace been achieved? While it may be true that another Franco-German war is unimaginable, this is peace with
a small 'p'. Peace with a capital 'P' is about Peace as an ideal, an end, a purpose. Peace with a capital 'P' is
about more than keeping the Germans and the French apart. But in Europe's dealings with Bosnia (and, one assumes
Weiler would now add Kosovo), it became clear that peace in Europe is now about little more than maintaining the
status quo. The peace Europe strives for is "the peace of Munich, of Chamberlain." It is about little
more than "preserving the existing comforts" (p 257).
Prosperity has been achieved, but it too has lost its idealistic function. Where once prosperity was about the
noble goal of an end to poverty, and therefore one less reason for war, now prosperity is simply about more - more
prosperity. The proof for Weiler lies in Eastern Europe: A Europe Union where the ideals of peace and
prosperity were still motivating ideals would be a Europe engaged far more deeply with the poverty and ethnic strife
of its continental neighbors.
The third leg of Weiler's modern European Trinity, supranationalism, was, he argues, undone by Maastricht, which
(among other things) enshrined the principle of subsidiarity, a commitment to devolve as much power as possible
to the lowest level of government. Supranational decisions were to be reserved for those things that could not
be resolved elsewhere. Weiler's point rings even more profoundly true in the aftermath of the Amsterdam Treaty
of March 1999 in which the new mantra is
"flexibility," which means that the Union will allow sub-groups of Member States to cooperate in certain
areas (and, conversely, allow other Member States to opt out of collective plans), paving the way for many Europes
and not just one Europe.
Weiler isn't opposed to a more post-modern conception of many Europes and not just one, but he is worried that
many or not, Europe risks becoming no more than an instrument - a means of conflict resolution, standard setting,
and trade simplification. Surely this is not what all the "doing" was for?
Are there alternatives to this bleak instrumentalist future? Weiler leaves us with two. The first, and least likely
in his view, is a Europe that would revive its purpose and ideals with a crisp turn to the East - a Europe that
would do for the East what the Americans did for Western Europe in the wake of World War II.
But this, Weiler concludes, is not to be, "not if the new mean-spirited arrangements offered by the Community
to Eastern Europe are a sign of things to come" (p. 262).
A second alternative might develop "the communitarian, as opposed to the liberal, strand in the European Community
ethos" (p. 262). Here the focus would be on a new a debate over the meaning of European citizenship. Though
this is an option he would welcome, it is not one he expects. Weiler is not a fatalist about Europe,
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but concludes the chapter with a lament that Europe would be better served if the debate could shift away from
the means, away from economic relations and institutional structure, and back toward the ends (traditional or post-modern)
those means are meant to serve.
At the start of the book Weiler picks up a strand of thought he dangled in the afterward to his 1991 essay: beware
the error of trying to fit Europe into pre-existing intellectual boxes. Weiler argues that we have two broad choices:
We can see Europe as the intertwining of three different modes of government - each of
which is responsive to a different sort of democratic theory, or we can see Europe as something quite different
from what we have experienced elsewhere, something that will require a new sort of democratic theory.
Instead of looking at Europe within the traditional categories of economics, foreign policy and domestic affairs
(Maastricht's three pillars), Weiler argues that Europe will make far more sense if we study political and institutional
functions instead. Three "modes of governance" function simultaneously. There is an intergovernmental
mode (drawn from international relations) which he suggests is best understood with theories of consociational
democracy; there is a supranational mode (drawn from public law and comparative law) - best approached with traditional
democratic theory; and there is an infranational mode (drawn from the liberal-internationalist tradition, focusing
on interest groups, and non-governmental actors as well as bureaucratic level politics), best understood with a
neo-corporatist approach.
The alternative to this complex intertwined system is to recognize in the European Union a new form of governance,
one that might require a new form of democratic theory. But the chapter ends there. What this new form might look
like, and what difference it might make is left unsaid.
Instead, Weiler moves to a chapter that really doesn't seem to fit with the rest of the selections. An extended
argument over what European legal scholars call the issue of Kompetenz-Kompetenz - which Court has the authority
to determine where competence exists to decide different cases? Does the German constitutional Court have the authority
to decide what will and what will not be decided there, and what will be referred to the European Court in Luxembourg
- or does the ECJ hold this authority alone? This is a vital question for the political and jurisprudential development
of the Union, but it seems to break the flow of Weiler's book and
could have been better integrated into the book's thematic development.
In the final chapter Weiler grapples with the question of identity: What does it mean, what can it mean, to be
a European citizen? Here, Weiler offers concrete policy proposals among which is a plan Weiler acknowledges is
dead on arrival: Direct taxation - a European tax paid by each European citizen to a European government.
Weiler argues that there will be no Europe unless there are genuine European responsibilities as well as European
rights. And first among those responsibilities is European TAXES. Only when there is a European tax, administered
(and distributed) by a European government, will European citizens pay attention. Weiler
wants Europe to invert the American revolutionary cry,
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and proclaims there should be "No representation without taxation."
Weiler readily admits that this proposal is a non-starter: Member State governments would never surrender the key
to sovereignty that is taxation; the European Union itself would never risk antagonizing the already-heavily taxed
citizens of Europe and risk their wrath; and the citizens themselves would, of course, reject
any new taxes. But it is a provocative point that reminds us that the democracy deficit is not just a question
about access to the political system, but about incentives to participate in that system. The elite have long had
incentives to "hearken" to the "doing" in Brussels -- direct taxation might have that effect
for
masses and elite alike.
Though most of these essays are available in separate form, it is a real service to have them in one accessible
place, gathered in an intellectually coherent collection and bound together with well-thought introductions and
judicious editing. But as useful as this collection is, it only whets the appetite for a fully developed book that
places the European Court and its evolution into the broader context of European political development - and draws
from that development general statements about the interaction of law and politics.
This book certainly should be read not only by those with an interest in European law and European political integration,
but it should be read as well by anyone with an interest in how legal and political actors and institutions shape
and constrain each other. Weiler writes with a clear, engaging, and entertaining prose. Since Cambridge University
Press had the good sense to bring out a paperback version immediately, it is a book that would make sense in any
number of graduate seminars, and a number of chapters would work rather well for advanced undergraduates as well.
Above all this is an outstanding example of the intellectual stimulation and exciting practical prescriptions that
can be generated when scholars are willing to open their minds to the insights of disciplines other than their
own. If nothing else, Weiler's book is concrete proof that an understanding of the role of law in Europe is impossible
without a clear consideration of politics - political theory, political institutions and political behavior - as
well as economics, sociology, international
relations, history and even a good dose of religion.
REFERENCE
Weiler, Joseph H.H. 1991. "The Transformation of Europe." THE YALE
LAW JOURNAL 100: 2403-83