Editorial of June 2017

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by Alessandra Silveira, Editor

Waiting for a federal big bang in EU? Updating the theory of federalism in times of liquid modernity

On May, 22-23, at Nova Law School, Lisbon, took place a conference on “The federal experience of the European Union: past, present and future”, organized by Professor Nuno Piçarra. Sixty years after the signing of the Treaty of Rome and twenty-five years after Maastricht, the EU may be living a true moment of “constitutional mutation” that may dramatically change its identity. Yes, it is possible to re-found the EU without revising the Treaties (as constitutional mutation is nothing new and it has been working since the beginning of the integration) and without committing “semantics imprudences” (avoiding the “blasted” nature of terms such as constitution and federation). Therefore, this is the right time to address the EU federative experience from an historic perspective and to analyse the role which such an acquis may play in the shaping of the future EU. For these reasons, the purpose of that conference was to tackle the following three questions. First, how should we evaluate the EU federative experience, sixty years after the signing of the Treaty of Rome? Second, which are the main challenges facing the EU in the light of its federative experience? Third, do these challenges and respective answers suggest that the European federative dream is over, or just undergoing a new form of development?

At that occasion, I had the pleasure to comment the presentation of José Luís da Cruz Vilaça (distinguished speaker, Judge at the Court of Justice of the European Union), on the crisis and recent challenges of the European federative experience. For years I’ve known and shared Cruz Vilaça’s thoughts about the evolution of the EU federative system [see José Luís da Cruz Vilaça and Alessandra Silveira, The European federalisation process and the dynamics of fundamental rights, in EU citizenship and federalism – the role of rights, Dimitry Kochenov (ed.), Cambridge University Press, 2017]. So, it was no surprise for me that he confronted the audience with the question of wondering if it would be really worthy to look for the best model of integration, upon an abstract model, starting over as if there was nothing… Would it not be better to build on the achievements and finish the work which had started in what we were capable of converging? Jean Monnet said that “Europe will be forged in crises, and will be the sum of the solutions adopted for those crises”. Crisis is the natural state of Europe. Sixty years on, what sum does the EU represent? We must know thus which path to follow to prevent a catastrophe. In this regard, Cruz Vilaça would bet on a movement of “networking softening” (in Portuguese language, “flexibilização em rede”) launched by the White Paper on 1st of March 2017 and aiming at promoting a more accentuated federalisation.

As we said in the text suggested above, the obvious weaknesses of the institutional mechanisms available to deal with the financial and economic crisis highlighted the need to deepen the federative components of integration. There is nothing new or amazing about this, however: the federalisation of the European system has been under way for sixty years, ever since the Schuman Declaration of 9th May 1950 began the construction of a Union on a federative basis, with specific reference to the expression “European federation”. Therefore, those who think that the federalisation under way depends on a federal constitution, formally conceived as such, and on the express waiver of the status of sovereign state, are wrong: the evolution of the EU federative system has never and will never happen that way. There is no point, therefore, waiting for the federal big bang.  Rather, it is advancing slowly in the direction of legal and political unity of the European system, through the subordination of each partial legal order (Union and Member States) to the constitutional supra-system which results from the founding Treaties.

The destination is certainly not a federal state – nor, perhaps, is that desirable. In legal and political terms, what is being forged is something rather more sophisticated than the federal state model, as it requires the various legal orders involved to continuously reconstruct their identity by means of a constitutional interweaving with the other orders.  It is said that while lawyers have constructed a typology of structures, political scientists have concentrated on defining types of processes. That is, political scientists have focused on phenomena of federalism not as static structures that necessarily coincide with the state, but as moments in a process that develops with alternating results, depending on whether centrifugal or centripetal tendencies are to the fore. They have relied, therefore, on the conceptual continuity of the various forms in which federalism can manifest itself without losing its essential characteristics, which vies with the “state-based” conception of federalism that is so dear to lawyers. In this vein, the most consistent contribution from political science is the federalising process theory advanced by Carl Friedrich in Harvard in the 1950s. Indeed, today we can say that federalism suggests both structure and process –  but we only got there on the basis of the theoretical contribution of the federalising process, according to which federalism essentially means a balance between central and peripheral powers (or between centripetal and centrifugal forces) constitutionally defined and protected.

Thus, federalism should not be considered as a static model or a fixed and precise term for the division of powers between the central and peripheral authorities. It has to be perceived as a process of federalising a political community. In this regard, the theory of federalism is not even exclusively juridical – it is also political, economic and sociological. But in its legal dimension, the theory of federalism is essentially a theory of the territorial organisation of power – which we know as the “theory of legal organisation of federative systems”. The problem is that in the “globalitarian” age and the so-called “liquid modernity” (Zigmunt Bauman), power has been un-territorialised (Gustavo Zagrebelsky). The electoral circumscriptions where we exercise our right to vote are not the ones in which our collective destiny is decided (process of un-territorialising the power). As a result, the theory of the legal organisation of federative systems (that is mostly a theory of territorial organisation of power) loses to a certain extent its gravity centre. Therefore, any debate on the challenges the EU faces today (in the light of its federative experience) cannot ignore the “meta-crisis” (that makes all the others crises almost insoluble) which is the crisis of agency (i.e., the crisis of the state as we know it).

As Bauman explained, the crisis currently lived means a novel divorce between power and politics: power seen as the capacity of taking things through and politics as the ability to decide which things should be taken through. That has the effect of a local political system reduced to the management of administering routine and a system of global power without political representation and exempt of any control/accountability. Finances, investment capital, movement of goods and capital, labour market, etc. are beyond the responsibility and reach of the only political agencies still available to fulfil the task of regulating and monitoring – the states. The EU was the only attempt more or less successful (because incomplete) to regulate the “globalitarian” flows and attenuate its effects. Hence, before the divorce between power and politics, more important than the answer to the question “what to do?” would be the answer to the question: “who will do it?” What is subjacent in any discussion about the federative solutions to the EU – or what we have been arguing as the “deepening of the federative components of the system” – is the urgency of taking politics and its wagers to an entirely new, unprecedented point. And for that the traditional theory of federalism is no longer useful. It must also be reframed and reinvented.

Picture credits: Untitled by skeeze.

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