Legal Commentary

Union Marching in Different European Directions

By Kenneth Anderson

This is a very fast note on the question of European political economy raised in my last post.  It?s not intended to be exhaustive, and yes, it is pretty conclusory.  My impression over many years as an international law professor who bridges the public and private law divides; not a specialist in EU law but someone watching closely from the outside ...  the movement toward ever closer union in the EU seemed to me always to have a double drive.

On the one hand, the Erasmians ? the true believers, the ones who thought you just marched toward political union because it was, well, what civilized people did.  These folks included many of the non-economist professors, the law professors particularly.  I have long been struck by the astonishing levels of intellectual and ideological production ? prodigious, really ? by EU professors well-funded by the EU itself to come up with theories about why the EU was going to be such a dandy thing.  I long thought of it as a perfect instance of creating your own demand.

The result of all this prodigious activity was the marvelous elaboration of a vast edifice of constitutional structure, most of it aimed at saying that the EU could not go wrong as a project of union, if it just kept at it.  Go onto SSRN and see how much stuff continues to be cranked out in the category of constitutional theory about the EU itself.  What an observer on the outside might have thought was a pretty historically contingent project is made to look like the Unfolding of History as It Must Unfold.

I mean, of course it might work out that way.  But if so, it hardly seems like it on the basis of the theories offered by academics at institutions sponsored by the edifice presumably under study.  (This phenomenon of funders creating their own demand for ideological product is, of course, just as ordinary in the United States.)  Anyway, these are the Erasmian true believers.  They seem to be mostly law professors.

On the other side are the realists and skeptics who might, slightly paradoxically, still favor ever closer union ? but for the opposite reason.  Many of them are economists.  They see the whole thing as a bicycle about to fall over.  It has to get up to speed to keep going.  Far from ?naturally? unfolding according to a special Natural Law that God has especially enacted for the benefit of the EU, on the contrary, the bike is wobbly, unnatural, lacking in balance, and only forward momentum can save it.  The present moment is the worst, because it represents precisely the gap between currency union and fiscal/political union.

These two are not mutually exclusive positions, of course.  One can have some of both.  It?s simply my perception of the divide, as someone who reads the literature from each.  The easy money years underwrote the feeling that maybe it was possible to have monetary union without fiscal/political union, but the artificial supports have dropped away and everything is wobbling again.  The one thing I can predict with utter certainty as a law professor is that the EU will put up funding to produce yet a new iteration of constitutional theory to show how all this, too, will lead to ever closer union.  Look for the wave of papers over the next four years on SSRN.

My skepticism is about ideology, by the way ? I am mostly an admirer of the EU and what it has done in many things, starting with the long term transformations in Spain, Portugal, and Greece, to start with, let alone the expansion eastwards.  But that does not lead me to any belief that it has worked out the deep internal contradictions in the political governance project, and less still any view that the EU points the way to some genuinely new kind of governance structure in human affairs.  It might, I suppose ? I?m not ruling it out.  But let?s give it, say, a hundred years to see if it has staying power before we draft up too many theories of its historical inevitability.

In any case, how much does it matter? I?m not referring to myself ? I mean simply that the Obama administration?s pooh-bahs seem to have written off Europe as the past, Asia is the future.  The irony is that it is precisely on account of striving so desperately, so mightily, to become a Western European democratic socialist state that the Obama administration feels no need any longer to look to Europe.  It has already priced-in internally anything of ideological value Europe might have to offer, on account of the transformations under way in the US.  We?ve now got ? thanks to the decension of Bush and the inclension of Obama ?anything of value Europe might offer in the way of values, so why pay attention to those losers?  What could Europe possibly teach President Obama about community, fraternite, welfare, socialism, social safety nets, unions, public sector employment, all the rest of the stuff in which Europe ideologically specializes?  This is President Obama, after all ? on all of these things, O Europe, you should learn from him.  And from Rahm Emanuel.

Of course, the one missing piece of that puzzle is how it is that Europe went into decline, and whether that lesson for the US has been priced-in ....

We Atlanticists should all have paid greater attention to Raymond Aron.

Full post as published by The Volokh Conspiracy on February 09, 2010 (boomark / email).