THE HEALTH OF NATIONS Part 6 pot

the crisis of european constitutionalism 213
dialect of German, which would eventually come to dominate and as-
similate the Norman French of the latest (and last) occupying class. And
if we were cousins of those tribes who would come to identify themselves
as Germans, those tribes were cousins, or closer, of the tribes who would
come to identify themselves as French. And the proto-Germans would
get rid of the Slav tribes from what would one day become the territory
of the German Democratic Republic. And the proto-French would go
beyond the Somme and then beyond the Loire and frenchify the sur-
vivors of the Romanisation of Gaul, and so link up with the Lombards
who had moved from northern Europe to become the proto-Italians
in conjunction with the aboriginal Romanised tribes of Italy, including
tribes in southern Italy who had been colonised by the Greeks . . . and so
on and on.
7.85 The expression multinational Europe (1100–1500) reminds us
that it took manic efforts on the part of kings and their servants, and
the spilling of much blood, to make these motley tribes believe that they
were a nation, genetically and/or generically distinct from neighbour-
ing nations, to separate the royal property of one so-called nation from
another, to combine highly effective subordinate social systems (feudal
estates, the dioceses of bishops, city-states, free towns) into centralised
power-systems. When French kings were kings of England and English
kings were also kings of France, what was England, what was France?
British kings continued to bear the title ‘King of France’ long after they
had ceased to control any part of France. Multinational Europe also re-
minds us that it is only ideologically motivated historiography that has
monopolised the historical imagination of the people with its stories
of the antics of kings and emperors and soldiers, whereas the central
social activity was, as it always had been, economic, that is, the transfor-
mation of labour and desire into goods and services to which different
economic agents attach differential but commensurable value. It is the

international character of trade in the High Middle Ages, the cosmopoli-
tanism of the towns, and the development of an international business
consciousness which should attract our attention and admiration, as
it should have attracted the gratitude and not merely the greed of the
holders of ultimate political power.
7.86 The expression social Europe (1500–1800) reminds us of a very
striking thing, the most important pattern of all – that, after 1453 (the
sack of Constantinople and the end of the eastern (Byzantine) empire),
214 european society and its law
the people of Europe rediscovered the most important kind of European
unity, a unity of consciousness in the very period which is convention-
ally presented as the period during which Europe decomposed into a
modified state of nature wherein the leading politico-military actors
were conceived as being ‘in the posture of gladiators’ (to borrow an
expression used by Hobbes) in relation to each other.
7.87 Social Europe saw a great new flowering of a shared European
consciousness, a consciousness which had been preserved, almostmirac-
ulously, in unbroken succession from ancient Greece and Rome. Even
in the darkest days of tribal Europe, when the lamp of civilised society
burned low, the light of the mind burned steadily in the monasteries,
those common organisations of the spirit, to be handed on to their intel-
lectual heirs, the universities, in the twelfth century. It was the Church
of Rome which had carried a most significant part of the intellectual, so-
cial and even political legacy of the ancient world through tribal Europe
into multinational Europe. And then, in the period of social Europe,
the European spirit manifested itself luxuriantly in the fine arts, mu-
sic, literature, the law and social institutions, philosophy, humanistic
scholarship, the natural sciences, technology, agriculture. Social
Europe
was a European Union of the Mind, a single market of consciousness,

with free movement of artists and intellectuals, of intellectual capital, of
the products of hand and brain. Renaissance humanism, the scientific
revolution, the enlightenment of the eighteenth century, Romanticism,
the industrial revolution, the political revolutions after 1776 – they were
all the work of the wonderful unity-in-diversity of the European mind.
7.88 Social Europe also reminds us that, ever since the period of
tribal Europe, we Europeans have been capable of layered loyalty – loy-
alty to family, village, guild and other social corporations, town, es-
tate, province, nation, the Pope, the Emperor – loyalty to our religion,
to Europe (in relation to non-Europe), to the City of God as well as
the City of Man. Each loyalty has seemed perfectly compatible with
all the others. Some of us, from ancient Greece onwards, have even
claimed to be cosmopolitans, members of the international society of
the whole human race, the society of all societies. As Europeans acquired
an ever-increasing sense of their own individuality during the period
of social Europe, that new personal self-awareness included an ever-
increasing awareness of the complex and multiple and ever-changing
social parameters of our personal identity, the social subjectivity of our
personal subjectivity.
the crisis of european constitutionalism 215
7.89 And social Europe reminds us that, even among the degenerate
controllers of the public realms of the nations, there were signs of prac-
tical socialising. We think of Hugo de Groot (Grotius) as the prophet of
universal international law. But he, and his great Spanish predecessors,
can also be seen in their specifically European context, as voices in a
new politico-military wilderness, the voice of old Europe recalling the
integrity of old Europe’s values, values of sociality and rationality, in the
face of the terrible challenges of a new political world in Europe, of a
new-old world outside Europe.
7.90 So what changed after 1800, to make inter-statal Europe, the

Europe of the triumphant Public Realms? What made Hegel’s essay of
1802 on the reconstituting of Germany so prophetic? What has led so
many Europeans to believe that inter-statal Europe is Europe’s natural
and settled state? How is it that the European mind has produced the
European Union that we know, a misbegotten and anachronistic prod-
uct of inter-statal Europe, of one uncharacteristic phase of European
history, standing in the way of a true European reunifying, of another
self-surpassing achievement of the great and ancient tradition of
Europe’s unity-in-diversity?
7.91 We can offer a rudimentary explanation of the complex his-
torical process by which such a thing came about. We can begin to find
our way into the heart of Europe’s darkness. What we find is that the
European Union is a product of a particular developmental process in
the most dynamic European societies, a process which enabled the state
(in its internal sense) to acquire an ideal, real and legal hegemony
over the other totalising complexes of society (especially society and
nation and economy) and to acquire an external hegemony over all other
transnational phenomena (the internal state externalised to become the
state of so-called international relations and international law).
7.92 But the social hegemony of statism has passed its apogee, and
all the totalising social concepts are undergoing radical reconceiving.
We will be obliged to conclude that the European Union, in its present
and potential state, is an exotic relic of a fading social order, like the
late-medieval Church of Rome or the latter-day Holy Roman Empire.
7.93 Alexis de Tocqueville’s discussions of the American and French
Revolutions are among the greatest achievements of human self-
contemplating. Among his many powerful and prophetic insights was
the idea that the new kind of democracy had within it the seeds of to-
talitarianism, to use a modern word which he did not use. He quotes
216 european society and its law

a warning uttered by Thomas Jefferson in a letter to James Madison
in 1789: ‘The tyranny of the legislature is really the danger most to be
feared, and will continue to be so for many years to come. The tyranny of
the executive power will come in its turn, but at a more distant period.’
60
7.94 De Tocqueville said that, as the number of public officials in-
creases, ‘they form a nation within each nation’ and that governments
would come more and more to act ‘as if they thought themselves respon-
sible for the actions and private condition of their subjects . . . [while]
private individuals grow more and more apt to look upon the supreme
power in the same light’.
61
7.95 And so it happened: the controllers of the public realm came to
be a nation within each nation, a social class with its own class-interests,
and then, as they began to identify with each other transnationally, a
transnational class with its own class-interests. And the European Union
is the product of their ideals and their ambitions. European Union is the
partial integrating of the public realms of Europe by the controllers of
the public realms of Europe. (The public realm is that part of the total
social process of a society which consists in the exercise of those social
powers which have been conferred by society to serve the public interest
of that society.)
Ideas and illusions
7.96 The form of the constituting of the European Union has been
determined and profoundly distorted by certain peculiar characteristics
of the minds of the controllers of the public realms, idea-complexes that
we may call technocratic fallacies.
60
A. de Tocqueville, Democracy in America (tr. H. Reeve; New York, Schocken Books; 1961), i,
p. 318.

61
Ibid., ii, pp. 323–4, 336–7. Aristotle had foreseen the tyrannical potentiality of democracy.
In what he called a monarchical democracy, the people become monarchical, one ruler
composed of many persons. ‘Hence such a democracy is the exact counterpart of tyranny
among monarchies; its general character is exactly the same. Both lord it over thebetter class
of citizen and the resolutions of the one are the directives of the other; the tyrant’s flatterer
is the people’s demagogue, each exercising influence in his sphere, flatterers on tyrants,
demagogues on this type of popular body. They are able to do this primarily because they
bring every question before the popular assembly, whose decrees can supersede the written
laws. This greatly enhances their personal power because, while the people rule over all, they
rule over the people’s opinion, since the majority follow their lead.’ Aristotle, The Politics,
iv.4 (tr. T. A. Sinclair; Harmondsworth, Penguin; 1962), p. 160.
the crisis of european constitutionalism 217
7.97 The first fundamental fallacy has been the idea that a consti-
tution is a legally formulated arrangement of institutions. The second
is the idea that there is something called the economy which is au-
tonomous in relation to the rest of social phenomena, that res economica
is systematically separable from res publica, and even from res privata.
The third fallacy is the idea that democracy can be conducted as if it
were a species of diplomacy, as if diplomacy can be democracy by other
means.
7.98 The life-threatening effects of these fallacies can be detected in
the deep-structure of the European Union system and, with the conclu-
sion of the deplorable Treaty on European Union in 1992, the constitu-
tional situation has become worse rather than better.
62
At the heart of
the system remains the fantasy of the Diplomatic General Will, the idea
that the controllers of the public realms of the member states are able to
represent the totality of the national interests of the participating peo-

ples, and hence that the public interest of the EU – which is expressed
in the law of the EU – is nothing more than the aggregate of the public
interests of the member states, mediated through the collective willing
of the public-realm controllers. The underlying supposition is that the
infinitely complex and intense social phenomenon known as politics,
which is at the heart of the process of will-formation in a democracy,
can be transmuted and subsumed in a bargaining process among the
controllers of the respective public realms, spuriously legitimated by
mobilising the ante hoc or post hoc consent of this or that institution
within the member states.
7.99 At the heart of the system remains also the fantasy of the
Aggregate Economy, the idea that an EU economy and market can
be made by the legal and administrative co-ordination of the national
economies and markets, and hence the idea that the economic public in-
terestof the EU– which is expressed in itseconomic and monetary policy,
and in economic legislation, and in the interpretation and application
of economic legislation – can be treated as being the aggregate of the
62
The Maastricht Treaty introduced into the EC Treaty technocratic fantasies in providing
separate legal-constitutional regimes for so-called Economic Policy and so-called Monetary
Policy and in arbitrarily legislating certain transient capitalist dogmas, with collective pun-
ishments for recalcitrant member states. And it provided a new non-EC (intergovernmental)
system for so-called Common Foreign and Security Policy, Police and Judicial Co-operation in
Criminal Matters andJustice and Home Affairs (this last aspect being more or less reintegrated
into the EC system by the Treaty of Amsterdam of 1997).
218 european society and its law
economic public interests of the member states. The underlying sup-
position is that the organising of the infinitely complex and intense
social phenomenon of interactive (public and private) economic decision-
making of a capitalist social system can be transmuted and subsumed

into the routine interactive decision-making of government ministers,
diplomats, national and international administrators, and national and
international judges.
7.100 Such ideas directly conflict with other ideaswhose social power
we have come to understand through many centuries of European
social philosophising and through the last two centuries of intense lived
social experience. They run directly counter to the constitutional psy-
chologies of the people and peoples of Europe which have been dis-
cussed above. They are ideas which wholly misconceive the nature of
the self-constituting (ideal, real and legal) of our societies. They are
ideas which come from the shared consciousness of a rootless class, the
class of technocrats, whose job it is to manage the public realms of our
societies abstractly and instrumentally and professionally, rather than
through moral and political and emotional commitment. Such peo-
ple have been allowed to determine the revolutionary reconstituting of
European society.
7.101 Against such ideas we must insist on other ideas. The self-
constituting of a society is the social self-constituting of human con-
sciousness. What is called the economy of a society is simply that part
of such self-constituting which is the socialising of human effort and
human desire. So-called democracy is that part of such self-constituting
which is the socialising of the human will. The self-constituting of the
most dynamic form of society, that is to say, democratic-capitalist soci-
ety, is an inextricable integrating of consciousness, effort, desire and will.
7.102 To unravel the historical process by which technocratic falla-
cies came to dominate and to impede the process of Europe’s reunifying
requires an understanding of the developmental relationship between
the real constituting of our societies, during the period which we have
called inter-statal Europe, and the idealisation of that process in the idea-
complexes known as democracy, capitalism and the state (in its internal

and external manifestations).
7.103 It was no coincidence that Jean-Jacques Rousseau and Adam
Smith both proposed, almost simultaneously, new ways of imagining the
real-constitution processes which would later be ideally constituted in
the social theories which came to be known as democracy and capitalism.
the crisis of european constitutionalism 219
And it was no coincidence that they did so at the very time when our
societies had brought to full consciousness such powerful ways of im-
agining their social totality. The ideal-real-legal interaction of the
two – democracy-capitalism/society-nation-state – has been the story
of the amazing development of our societies over the last two centuries.
Rousseau’s general will and Smith’s invisible handwere metaphorsof won-
derful explanatory power, but they were far more than metaphors – and
they were close analogues of each other.
63
Their hypothesis was that it
is possible to aggregate human action socially, to aggregate the infinite
particularity of human willing and human effort – and, most wonder-
fully of all, such aggregating can produce what we may call surplus social
effect, an output that is much more than the sum of the inputs. They had
apparently constructed ideally an engine of unlimited social progress,
ensuring ever-increasing human well-being through the universalised
forms of law and wealth.
7.104 It turned out that democracy and capitalism involved a whole-
sale transformation of society, a re-constituting of society. The nine-
teenth century found a new instrument for social self-reconstituting, a
novum organum which was a very old instrument reconceived, namely,
the public realm of society, the res publica. The ancient public realm,
which had been the personal property of kings and of one self-serving
oligarchy after another, became the means of revolutionary social trans-

formation. The public realm provided a superstructure within which
society could be reconstituted, redistributing all forms of social power,
including economic power (especially property-power), political power
(especially over the legislative process), and psychic power (over the
63
‘[T]he rulers well know that the General Will is always on the side which is most favourable
to the public interest, that is to say, most equitable; so that itis needful only to act justly, to be
certain of following the General Will.’ J J. Rousseau, Discourse on Political Economy, in The
Social Contract andDiscourses (tr. G. D. H. Cole; London, J. M. Dent & Sons; 1973), pp. 296–7.
‘As every individual, therefore, endeavours as much as he can both to employ his capital
in the support of domestic industry, and so to direct that industry that its produce may be
of the greatest value; every individual necessarily labours to render the annual revenue of
the society as great as he can. He generally, indeed, neither intends to promote the public
interest, nor knows how much he is promoting it . and he is in this, as in many other cases,
led by an invisible hand to promote an end which was no part of his intention.’ A. Smith,
An Inquiry into the Nature and Causes of the Wealth of Nations (1776), bk iv, ch. 2. On what
German writers call respectively das Problem J J. Rousseau (individualist or collectivist?)
and das Problem Adam Smith (is a Smithian-capitalist economy natural or artificial?), see
E. Cassirer, The Question of Jean-Jacques Rousseau (tr. P. Gay; Bloomington, Indiana Univer-
sity Press; 1954), and J. Viner, ‘Adam Smith and laissez faire’, in The Long View and the Short
(Glencoe, The Free Press; 1958), pp. 213–45.
220 european society and its law
contents of the public mind).
64
The public-realm superstructure came
tobereferredtoasthestate, another ancien r´egime form reformed.
65
7.105 The ancient constitutional psychologies adjusted themselves
to these developments, seeing the superstructural public realm as the
self-governing of society as the republican will of the nation, as the self-

constituting of a people as state. (InGermanyandJapanintheperiod
up to 1914, it proved possible for the constitutional needs of capitalism
to be met by technocratic rather than by democratic forms. And we see
now in various countries outside Europe a form of social transformation
which might be called state capitalism.)
7.106 The superstructural public realms recognised each other ex-
ternally – recognition even became a technical term of international law –
so that, regardless of the status of the state internally within the different
societies and of the extreme practical inequality among the states, they
could treat each other as so-called sovereign equals, since each seemed to
be performing a similar social-structural function. The status in statu,to
adapt Metternich’s formula, could also be a status ex statu.
66
Their more
romantic apologists could even suppose that the states together formed
a sort of inter-statal society.
67
And it was soon found that the age-old
ruling-class game known as diplomacy could still be played according to
the old rules, as a game among the controllers of the new public realms.
And the age-old aspiration known as international law could continue
to perform its old-regime function, marginally controlling the external
activity of the new state-machines, reconciling piecemeal their so-called
interests.
7.107 The immense increase in the aggregate energy of the new-
regime societies gave great force to what has been referred to above as
competitive nationalism. There was a new way of increasing the relative
power of the social totality – not by war, colonisation or annexation, but
by increasing the organisational efficiency of society, and by increas-
ing its aggregate wealth. The most dynamic new-regime societies had

64
The ‘public mind’ is the collective consciousness of a society which functions in the same
way as the consciousness of individual human beings from which it emerges and to which
it returns to modify the contents of individual consciousness. The nature and the role of
the public mind are considered in ch. 4 above.
65
Once again, it is de Tocqueville who offers a fascinating exploration of the origins, in ancien
r´egime France, of such a repositioning of ‘the state’. A. de Tocqueville, The Old Regime and
the French Revolution (1856) (tr. S. Gilbert; Garden City, Doubleday Anchor Books; 1955),
pt 3, ch. 3.
66
See text at fn. 70 below.
67
H. Bull, The Anarchical Society: a Study of Order in World Politics (London, Macmillan; 1977).
the crisis of european constitutionalism 221
become vast wealth-machines. The pursuit of external power through
wealth is the continuation of war by other means. The peoples of Europe
were conscripted into a set of competing lev´eesenmassein time of war
and a set of permanent working armies in time of peace (with reserve
armies of (unemployed) labour, to borrow Marx’s metaphor). The two
so-called World Wars of the twentieth century were wars made by the
controllers of the national wealth-machines, by the nations within our
nations. Europe’s social progress was bought at the expense of Europe’s
social unity. And the consequence was a twentieth century whose first
half was spent in war among the new competing state wealth-machines,
and whose second half has been spent in a feverish collective effort by
the controllers of the public realms to overcome their past, by seeking
to create a self-transcending status ex statu, the European Union.
7.108 The making of the European Union, as an external hegemonic
public realm, reflects the social hegemony which the national public

realms had accumulated over the last two centuries, the self-creating
of the state as intra-societal superpower. That process had reached its
natural limit with the development of the mixed economy after 1929. Not
content with having made capitalism possible by providing its necessary
political, social, economic and legal conditions, the public realm became
a master of the so-called economy, that is to say, the socialising of human
effort and desire. The public realm became a direct economic actor
(especially through state-owned enterprises), and it became the manager
of allmanagers (in themanagement of themacro-economy) and through
fine-tuning of the micro-economy (anti-trust law, consumer protection,
etc.).
7.109 After 1945, the public realms, which had caused such inde-
scribable suffering and destruction, rehabilitated themselves by organ-
ising yet another reconstituting of our societies. And it was from that
reconstituting that the European Economic Community was born, a
superstructural reconstituting through the forming of a communal ex-
ternal capitalist economy. It was, ironically, the beginning of the end of
statist hegemonism. The European Community dawned in the dusk of
the world which had made it.
68
7.110 Over recent decades we have begun to reconstitute ourselves
ideally, that is to say, in terms of the ideas by which we organise our
68
The Austrian dissent to the classical and neo-classical economic orthodoxy had been re-
asserted in the 1930s with the work of Ludwig Mises and Friedrich von Hayek. Joseph
Schumpeter’s History of Economic Analysis had been published in 1954.
222 european society and its law
lives. Our societies are changing, as we renegotiate the terms and con-
ditions of our sociality. The public mind can no longer be managed by
the controllers of the public realm. Our nations are being reconceived,

as the people reconsider the various sources of their personal identity.
The nature and the function of the state (in the internal sense) is now an
open question, following extensive redistribution of the economic and
administrative functions of government. The process known as global-
isation has put in question the system of management of transnational
phenomena through inter-statal activity. Democracy, as an idea and an
ideal, is being tested against its practical manifestations. Capitalism, as
an idea and an ideal, is being tested against its practical effects.
7.111 It is the equivocal achievement of the European Community
that it has succeeded in surviving from one new age into another. To
redeem it and to perfect European Union will require an unprecedented
effort of our long-accumulated constitutional wisdom.
Making the future
7.112 What, then, must we do?
69
7.113 We must first dispose of three courses of action which,
strangely and embarrassingly, are precisely the three courses of action
which are available at the present time.
(1) The first is nuclear fusion (or ‘enhanced co-operation’), the prus-
sianisation of the European Union, that is to say, the final rationalisation
of the Community system, among a limited number of European states,
so that it becomes a supplementary state-system, welded onto the na-
tional constitutional systems, an endogenous communal constitutional
exo-skeleton (i.e. secreted out from the national systems but shared ex-
ternally among them all), in which the constitutional problems of dual
legal supremacy and dual democratic legitimacy would at last be faced
and resolved. Official Germany has seemed to support this line of action,
69
In his pre-revolutionary tract of 1886, Tolstoy said: ‘In the matter with which I am engaged,
what I had always thought has been confirmed, namely, that practice inevitably follows

theory and, I will not say justifies it, but cannot be different, and that if I have understood
a matter about which I have thought, I cannot do it otherwise than as I understand it.’ He
also said: ‘What constitutes the chief public evil the people suffer from – not in our country
alone – is the Government . . . ’ L. Tolstoy, What Then Must We Do? (tr. A. Maude; Bideford,
Green Books; 1991), pp. 107, 163.
the crisis of european constitutionalism 223
but ambivalently, in so far as it has ceased, at least for the time being,
to speak, or to speak openly, of the unavoidability of political union as a
concomitant of economic and monetary union.
(2) The second course of action is inertial evolution, the gradual in-
tensification of the system, supported, again ambivalently, by official
France. It sees the development of the Union as having a natural mo-
mentum, a sort of steerable self-evolution, from customs union to com-
mon market to single market to economic and monetary union, and
beyond – each step seeming to be a more or less logical and ineluctable
progression from what has gone before, even at the price of the ever-
increasing incoherence of the total constitutional system (the EU plus
member states).
(3) The third course of action is polyvalent diffusion, apparently favou-
red by official Britain. It is the concertisation of the European Union,
under the slogan Forward to the Nineteenth Century, leading to an intrinsi-
cally external diplomatico-institutional system, or rather an incoherent
set of external systems of unresolved constitutional character, but con-
taining a repertory of useful forms of potential collective action.
7.114 Nothing more need be said about the mutually incompatible
second and third solutions. They are technocratic distortions of the
constitutional psychologies of the two peoples – for France, the claim to
represent externally the natural social integrity of the people-as-nation
through the rationalistic authority of the controllers of the public realm;
for Britain, the claim to represent externally competing and unresolved

social interests through the self-determining activity of the controllers
of the public realm.
7.115 But more must be said about the first solution, given the
exceptional influence which the German government will have over the
future of the European enterprise and given the evident rationality of
such an approach. It is a solution which is also an emanation from the
complex constitutional psychology of the German people, as it has de-
veloped over the last two centuries, the powerful mixture of the psychol-
ogy of state and the psychology of nation, the first being the necessary
guarantee of the safety and well-being of the second.
7.116 The history of the twentieth century in Europe compels all
of us, including the German people, to think as lucidly and frankly as
possible about these matters. To that end, we may call to mind three
things which may stand symbolically for many others.
224 european society and its law
(1) At the time of the creation of the Zollverein in 1834, Austria found
itself in much the same situation as Britain 120 years later. It did not want
to be inside, but could it remain outside? Metternich wrote a Memoran-
dum for the Emperor, saying that, within the German Confederation,
Prussia was creating a sort of state-within-a-state.
‘In the German Confederation there is arising a smaller subsidiary
union, a status in statu in the full sense of the term, which only too soon
accustoms itself to achieve its own ends by its own machinery in the first
place and will only pay attention to the objects and the machinery of
the Confederation in so far as they are compatible with the former.’
70
(2) In 1916, the German government set up a working-group to con-
sider the necessary conditions for the establishment of a Customs and
Economic Community with the countries of Central Europe (a Zoll-
und Wirtschaftsgemeinschaft), designed to keep those countries out of

the grip of Russia, but avoiding their direct annexation by Germany.
The German word Gemeinschaft is a word with an interesting history,
unlike (at least until recently) the corresponding words (community and
communaut´e) in English and French.
71
70
Quoted in W. O. Henderson, ‘ Prussia and the founding of the German Zollverein’ (fn. 49
above), p. 1,094.
71
For an account of these discussions, see W. J. Mommsen, Max Weber und die Deutsche
Politik: 1890–1920 (1959) (T
¨
ubingen, J. C. B. Mohr; 2nd edn, 1974), pp. 223ff. The idea
of such a union had been mentioned in the September Programme (of war aims) of
8 September 1914 which had called for ‘the establishment of a Central European
Customs and Economic Union under German leadership’ (p. 236). In an aide-m´emoire
to the Austro-Hungarian government in November 1915, the German government pro-
posed a customs union (Zollbundniss) for the unification (Verschmelzung) of the whole area
into an economic unity (Einheit) (p. 232). One may say that the German government was
trying to reconcile four policy objectives: (1) to free the Central European countries from
Russian control; (2) to constitute those countries as a buffer between Germany and Russia;
(3) to increase Germany’s status as a European power; (4) to provide economic opportu-
nities for German business. The idea of an economic union was considered as a politically
more acceptable way of meeting the demands of the German right and the military for direct
annexation (a Hegemonialstellung des Deutschen Reiches prim¨air durch indirekte Methoden,
in the words of K. Riezler, p. 223).
The German word Gemeinschaft is associated, in particular, with the name of F. T
¨
onnies:
Gemeinschaft und Gesellschaft (1887); Fundamental Concepts of Sociology: Gemeinschaft und

Gesellschaft (tr. C. P. Loomis; New York; 1940). The epistemological status of T
¨
onnies’ dis-
tinction has caused much confusion (to which he contributed). It is best regarded as not
being prescriptive or judgemental, or a rationalisation of empirical phenomena, but as
something akin to what Weber would call an ideal-type, a heuristic which helps us to situate
and compare empirical phenomena. Broadly speaking, Gemeinschaft is the idea of a more
natural, instinctive type of community, whereas Gesellschaft is the idea of a more artificial
negotiated society. But the distinction was caught up in the problem of German national
the crisis of european constitutionalism 225
(3) In his biography of Thomas Mann, the German author Klaus
Harpprecht has drawn attention to something which Mann wrote in
1947: ‘in just fifty years . . . [Germany] will, in spite of everything, have
all of non-Russian Europe in its pocket, as Hitler could already have had
everything if only he had not been so impossible’.
72
Harpprecht himself
comments that this is ‘a prophecy that one reads half a century later with
something of a shiver’.
7.117 We must surely pay particular respect to the constitutional
psychologies of those peoples of Europe who have only recently recov-
ered their identity and their dignity as nations and states after centuries
of abuse and oppression. And there is a much wider consideration. An
imposed prussianising of part of Europe, accompanied by various kinds
of inertial and entropic reconstituting of the rest, including a sort of
collective neo-colonialism in Central and Eastern Europe, will mean
the division of Europe, a disunifying of Europe. Europe will become
an incoherent collection of sub-unions lacking any historical, ethnic,
psychic – or even geographical – reason to exist. Their members may
not even be geographically contiguous to each other. The sad unity-in-

disunity of the Holy Roman Empire after 1648 will have been negated,
but by a disunity-in-unity which could do to Europe the damage which
that system did to Germany. A bizarre and tragic outcome of thirty
centuries of European self-constituting!
7.118 It follows from all the above that the self-constituting of a
society is an interaction between consciousness and history. History
produces the practical and psychic circumstances which are constantly
re-formed by the work of consciousness.
73
Half-revolutions, which carry
self-consciousness after 1871. Was the German nation the coming-to-consciousness of a
natural community or the imposition of an artificial society upon rich and proud German
diversity? Thus the distinction came to play a role similar to Hegel’s distinction between
state and civil society (a distinction which was, however, clearly capable of having both ra-
tionalising and prescriptive significance).
In English, it is only recently that the word community has come to have a special signif-
icance (apart from its use in the title European Community), in connection with a commu-
nitarian variant within Liberalism. See generally F. Dallmayr, From Contract to Community:
Political Theory at the Crossroads (New York, M. Dekker; 1978); D. Bell, Communitarianism
and its Critics (Oxford, Oxford University Press; 1993).
72
K. Harpprecht, Thomas Mann: Eine Biographie (Reinbeck, Rowohlt Verlag; 1995) p. 1,663.
73
‘Very fitly is man compared to a tree, whose roots are his thoughts, whose branches and
leaves his words, the fruit whereof are his works.’ R. Allott, Wits Theater of the Little World
(London, N. Ling; 1599), dedication.
226 european society and its law
within them the potentiality of their own negation, occur when the
products of historical consciousness are not adequately re-formed in
the consciousness of the people, in the public mind of society.

7.119 The democratic legitimating of constitutional forms is not
achieved by formalistic manipulation of intricate sub-systems, such
as the tragi-comic Article 189b (now renumbered as 251) of the EC
Treaty. Democratic legitimation is the interiorisation by the people of
the necessity of particular social forms, forms which produce life-
determining social products (legal, political, economic, administrative,
psychic). It follows that European integration, if it is to survive and
prosper as a revolutionary transforming of European society, must be
an interiorisation in the consciousness of the people and the peoples of
Europe of the necessity of new social forms of European society. Necessity
in this context means that the social forms of European society must be
seen as a necessary part of the self-identifying of the people and the peo-
ples of Europe and a necessary part of their socialising, that is to say, of
their social self-constituting with a view to their survival and prospering
in the actual historical circumstance of Europe and of the human world
in general.
7.120 The European Union, in its present form, is an anarche. It
lacks an arche, an ultimate principle of its ordering. It lacks a coherent
idea of its actuality, an ideal of its potentiality. It is not a Mortal God, to
borrow another image from Thomas Hobbes, in the name of which the
people and the peoples of Europe can find a further identity, to which
they can attach their loyalty, serve a common purpose, and define their
opportunities and their responsibilities in relation to the human world
in general.
7.121 The first step must be the reintegration of Europe’s reunify-
ing into the historical consciousness of Europe, into the ever-maturing
constitutional psychologies of the people and the peoples of Europe. It
has been the purpose of the present study to make a contribution to
that process. European integration must be understood in the light of
thirty centuries of Europe’s self-conscious self-constituting, of all that

we have thought and all that we have done, the good and the evil and
the indifferent, to organize our communal living.
7.122 The second step must be the bringing back to consciousness
of a public mind of Europe, of a collective consciousness which can
process the concepts, the ideals, the values, the purposes, the policies,
the crisis of european constitutionalism 227
the priorities, the hopes and the fears of the people and the peoples of
Europe – that never-ending dialectical process of collective self-
contemplating, self-correcting, self-perfecting which is the work of the
public mind of a society. The work of the public mind is logically and
practically prior to the process known as politics,theprocessbywhicha
society struggles to determine the public interest and hence to determine
its collective willing and acting, above all by the making of law.
7.123 But it is not possible to organise a modern dynamic society
without both a dynamic public mind and a dynamic politics. The super-
structure of conspiring public realms must be surpassed by a supreme
structure of self-conceiving European society.
7.124 The third step in the salvation of Europe’s re-unifying must be
the instituting, at long last, of a transcendental debate in the public mind
of Europe about the idea and the ideal of European integration. Such
a debate must include, as a primary constituent, discussion of the rela-
tionship of that idea and that ideal to the ideas and ideals which animate
our other loyalties, especially loyalty to the very many nations and sub-
nations (the peoples) of Europe, each of which has a peculiar history and
a peculiar self-consciousness. That history and that self-consciousness
have been characterised by a variety of vigorous emotions: pride, patri-
otism, altruism, courage – and their dark shadows. To make a society
strong and, still more, to remake strong societies, a substantial emotional
investment must come from the people and the peoples whose lives are
changed thereby. Without such an investment the reunified European

society will never engage anything approaching the passionate mutu-
ality of society, the profound self-identifying of nation, or the rational
self-perfecting of state.
7.125 It is a strange and sad fact that this European revolution, which
could have been the latest and the greatest, has inspired no excitement
whatsoever in the public mind, even in the minds of the young, espe-
cially in the minds of the young. Hegel said of the French and German
Enlightenments: ‘All thinking beings shared in the jubilation of the
epoch.’
74
The English poet Wordsworth said, of the period of the French
Revolution: ‘Bliss was it in that dawn to be alive. But to be young was
very Heaven!’
75
74
G. W. F. Hegel. The Philosophy of History (tr. I. Sibree; New York, Dover Publications; 1956),
p. 447.
75
W. Wordsworth, The Prelude,bkxi.
228 european society and its law
7.126 One of Edmund Burke’s many memorable sayings is: ‘To make
us love our country, our country ought to be lovely.’
76
Somehow we have
to awaken l’ˆameetlapersonnedel’Europefrom its sad, self-induced sleep.
A proud and self-confident and lovable Europe – a unique civilisation
among the great ancient civilisations of the world – could, once more,
yet again, energise itself, take a role of leadership and responsibility, a
substantial microcosm in the great reconstituting of the macrocosm of
all-humanity, a reconstituting which has already begun, and which will

dominate the present century.
7.127 The only power over power is the power of ideas. We, the
people of Europe, must consider how we can use the power of ideas to
actualise the unique potentiality of Europe, to find a life-giving concept
of European Union, so that Europe may play its proper part in the making
of a new and better human world. Seid umschlungen, Millionen.
77
76
E. Burke, Reflections (fn. 6 above), p. 75.
77
‘Embrace, you millions.’ F. Schiller, An die Freude (OdetoJoy), line 9.
8
The concept of European Union
Imagining the unimagined
The self and the other: the dilemma of identity – The one and the
many: the dilemma of power – Unity of nature, plurality of value:
the dilemma of the will – Justice and social
justice: the dilemma of order – New citizens, old laws: the
dilemma of becoming – Making the economic constitution – The
precession effect – The macro–micro fault-line – European Union
as European society
The European Union lacks an idea of itself. It is an unimagined commu-
nity. In seeking to transcend a set of national societies, its potential devel-
opment and even its survival are threatened if it cannot generate a self-
consciousness within the public minds of its constituent societies and in
the private minds of the human beings whose social self-constituting it
determines.
The process of European integration has been dominated by two of the
paradigmatic forms of social self-constituting. It has been the dialectical
product of real-world struggles conducted, in particular, by the national

governments and by the controllers of the national economies. It has been
the product of obsessive traditions of state-centred law and administration.
It has been weakly determined by values, purposes and ideals, the forms of a
society’s ideal self-constituting.
Above all, the European Union has still not been able to resolve and tran-
scend the contradictory categories of democracy and diplomacy by installing
an idea of the common interest of all-Europe within and beyond all concep-
tions of national interest. The value, the purpose and the ideal of common
interest is a necessary part of the forming of the idea of a common identity
and a common destiny.
229
230 european society and its law
8.1 We, human beings and human societies, become what we think
we are. If we have conflicting ideas of what we are, we become a puzzle
to ourselves and to others. If we have no clear idea of what we are,
we become what circumstances make us. Conceptual dissonance and
conceptual drift have been characteristics of the life-story of the three
societies (called European Communities) which are now contained in a
society called the European Union. A member of a select but ominous
class of international social systems which also includes the Holy Roman
Empire
1
and the League of Nations,
2
the European Union is a paradox-
ical social form, namely, an unimagined community.
3
And, inadequately
imagined, Europe’s latest half-revolution may yet become a member of
another unfortunate social class – the class of failed revolutions.

4
1
The Holy Roman Empire was ‘neither holy nor Roman nor an empire’. Voltaire, Essai sur les
moeurs et l’esprit des nations (c.1756), ch. 70 (Paris, Editions Garnier Fr
`
eres; 1963), i, p. 683.
The shadowy Empire (Reich) evaporated when Francis II resigned the imperial title in 1806
and declared himself Emperor of Austria, after sixteen German states had left the Empire
to join the Napoleon-inspired Confederation of the Rhine. In his own lively constitutional
imagination, Napoleon, who crowned himself in 1804 as ‘Emperor of the French’ (taking the
crown from the hands of the Pope), was the true successor of the Frankish King Charlemagne,
who had been crowned by the Pope as Emperor in the year 800, and whose kingdom had
been divided following his death. The East Frankish (German) King, Otto I, invaded Italy,
took the title King of Italy, and in 962 (the traditional date of the founding of the Holy
Roman Empire) was crowned as Emperor in Rome by the Pope. The Empire came to be
called ‘Roman’ under his son, Otto II, ‘Holy’ in the twelfth century, and ‘of the German
Nation’ in the fifteenth century. The ghost of the old Empire returned in 1871 when, after
the Prussian army had occupied Paris, the newly unified Germany was proclaimed, in the
Palace of Versailles, as a new German Empire, with the King of Prussia taking the title of
Emperor (without being crowned as such). The last German Emperor abdicated in 1918.
2
There is a fine example of semantic m´esentente cordiale in the fact that the English league of
nations (with indistinct echoes of the inter-city alliances of ancient Greece or the Hansa) was
also the French soci´et´e des nations (with overtones of the then-fashionable Durkheim and
Duguit and ideas of social solidarity).
3
Benedict Anderson, in Imagined Communities. Reflections on the Origin and Spread of Nation-
alism (London, Verso; 1983/1991), refrained from imposing any general structural theory
on his examination of the way in which societies, always and everywhere, have used a re-
markable armoury of imaginative and mind-manipulating techniques to establish subjective

social identity. A general inference from his study is that it evidently requires much skill and
effort to make and maintain the subjective identity of a society.
4
Europe’s failed revolutions of the twentieth century (Russian, German and Italian) have
deeply depressed the European spirit, by seeming to prove finally the lesson of 1792 that
fundamental social change, born of a marriage of ideas and violence, must lead to chaos,
corruption, terror and reaction. For bitter accounts of one such revolution by former be-
lievers, see A. Koestler and others, The God that Failed. Six Studies in Communism (London,
Hamish Hamilton; 1950). ‘The Soviet Union has deceived our fondest hopes and shown
us tragically in what treacherous quicksand an honest revolution can founder.’ A. Gide, in
ibid., p. 198.
the concept of european union 231
8.2 To re-imagine European Union is to help the people and the
peoples of Europe to choose to become what they are capable of being.
We must create the constitutive idea and the revolutionary ideal of
‘European Union’ – to sustain, justify, control, surpass and perfect the
half-revolutionary institutional structure currently known as ‘the
European Union’.
5
The self and the other – the dilemma of identity
8.3 For self-imagining human beings and self-imagining human soci-
eties, the self is an other. The self makes itself as it comes to know itself
as an other. And, for the self, the other is a self. The self comes to know
itself as a self as it comes to know the other as another self. Each self and
every other are mutually self-constituting. Such an abstract (Fichtean-
Hegelian)
6
conception of the making of human identity is applicable,
not least, to the history of Europe – a 3,000-year drama of the self-
constituting of countless selves in relation to countless others. European

Union is the latest chapter, but presumably not the last chapter, in that
interesting story. A putative European public mind (European social
consciousness) is constituting a putative European self, which is not
merely a multiple self formed from the far-from-putative selves of the
subordinate societies of Europe, but also a single other, a self in its own
right, recognised by the far-from-putative public minds of those societies
and by the private minds of their members.
8.4 Idealised (and controversially identified and explained) large-
scale cultural patterns of shared psychic experience have dominated an
accumulating pan-European self-consciousness, forming a shared cul-
tural heritage, forming a communal psychic self, at least within the
minds of an internationalised elite – the intellectual and artistic glory
that was ancient Greece; the republican-military grandeur of ancient
5
This distinction based on the presence or absence of the definite article ‘the’ – in English
and those other languages which permit of such a contrast – expresses the fact that a society
is not merely a systematic structure of social power but also a structure-system of ideas (a
theory) about social power, the latter being represented by abstract words, that is to say, in
the formula of medieval philosophy, by words of ‘the second intention’, words expressing
ideas about ideas (cf. the distinction between ‘law’ and ‘the law’).
6
‘They [more than one consciousness] recognize themselves as mutually recognizing each other.’
G. W. F. Hegel, Phenomenology of Spirit (1807), § 184 (tr. A. V. Miller; Oxford, Oxford
University Press; 1977), p. 112.
232 european society and its law
Rome; the ambiguous hegemony of the medieval Roman Church; the
revival of a Byzantine version of Roman law; the Italian-led cultural rev-
olution from 1250 to 1520; the global projection of Europeanism, led by
Spain and Portugal; the multinational politico-religious revolution of
the sixteenth century; the multinational scientific and philosophical rev-

olution of the seventeenth century; the French-led cult of savoir-vivre in
the eighteenth century; the multinational eighteenth-century Enlight-
enment; the socio-economic revolution after 1770 led by Britain and
France; German-led nineteenth-century academic intellectualism (the
human sciences) and rationalistic public administration; the new global
projection of Europeanism in nineteenth-century imperialism; the new
scientific revolution after 1860.
8.5 Cultural diversity, cultural competition and cultural exchange
have been intensely enriching within European consciousness. We recall
the universities of the Middle Ages, with teachers and students from
all over Europe. And we think of the cultural travelling of individuals, a
‘grand tourism’, a ‘free movement’ of lively minds. Such cultural transna-
tionalism affected the thinking of those whose thinking had important
effects on European consciousness in general, and hence on the course
of European history. Cultural travelling, like other forms of travel, could
have both positive and negative effects on those who travelled, mind-
broadening and mind-narrowing, often generating an unstable men-
tal syndrome which we might call xenophobophilia. Cultural travellers
might admire and detest foreign manners and ideas, sometimes both at
the same time, sometimes at different stages of the traveller’s personal
intellectual development.
7
8.6 Like Babylonian and then Aramaic in the ancient world of South-
western Asia, a succession of pragmatically determined international
languages – Greek, Latin, French, English – enabled elite to speak to
7
England was a particularly puzzling and irritating phenomenon for Continental observers,
a strange mixture of barbarous manners and advanced thinking. For a vivid account of
French xenophobophilia, see J. Texte, Jean-Jacques Rousseau and the Cosmopolitan Spirit in
Literature. A Study of the Literary Relations between France and England during the 18th Century

(tr. J. W. Matthews; London, Duckworth & Co.; 1899). Voltaire’s complex and tenden-
tious account of his impressions of England, centring on the effect of the phenomenon of
‘liberty’ on all aspects of public life in England, was given, soon after his return to France,
in his Lettres philosophiques (1734). In La culture et la civilisation britanniques devant l’opinion
fran¸caise au XVIIIe si`ecle de la paix d’Utrecht aux Lettres philosophiques de Voltaire 1713–1734
(Philadelphia, 1948), G. Bonno has suggested that other French observers had anticipated
Voltaire’s impressions of England.
the concept of european union 233
elite across Europe’s political and linguistic frontiers, and across the
span of historical time. Heroic efforts of creative Enlightenment philol-
ogy managed to assemble most of the many European languages into
language-families, derived from an ‘Indo-European’ hypothetical
Ur-language, but linguistic diversity has been a permanent source of
diversity of identity. It is commonly supposed that the character of a
given language expresses the character of a given people, reinforcing the
idea of a Lamarckian, if not Darwinian, biological basis for intensely
individualised identities. The legally imposed formal multilingualism
of the European Union affirms an historically determined heterogeneity
which history also negates.
8.7 Above all, throughout Europe’s three millennia, there has been
a fusing of the contemplative and creative consciousness of individ-
ual Europeans into the European collective consciousness, the tran-
scendent European public mind. Contemplative consciousness reflects
on the most general questions which present themselves to the human
mind – religious, philosophical and scientific questions. Such questions
present themselves as universal in character, calling for universal an-
swers. Although different nations have contributed in distinctive ways
to the making of the reflexive European public mind, that diversity has
been an enriching of a common project which overrides differences
of time and place. To understand the universal and perennial charac-

ter of collective European philosophical consciousness,
8
we need only
call to mind a particular philosophical tradition – say, the (idealist)
tradition which links Parmenides, Pythagoras, Plato, Aristotle, Zeno,
Aquinas, Descartes, Spinoza, Kant, Fichte and Hegel; or the (sceptical/
empiricist) tradition which links Protagoras, Aristotle, Carneades,
William of Ockham, Montaigne, Bacon, Hobbes, Locke, Berkeley, Hume,
Kant and Hegel. And the same could be demonstrated still more cogently
in the case of religious or scientific consciousness.
8.8 TheworkofEurope’screative consciousness has also been the
rich product of artists travelling through time and across political and
cultural frontiers. We may think of the development of oil-painting in
Europe from a powerful union of Byzantine, Flemish and Italian skills
8
Hegel took the view that all philosophies are part of one philosophy, the accumulating ‘self-
knowledge of Mind’. ‘They never have passed away, but all are affirmatively contained as
elements in a whole.’ G. W. F. Hegel, Lectures on the History of Philosophy (1831) (tr. E. S.
Haldane; London, Kegan Paul; 1892), pp. 55, 37.
234 european society and its law
and traditions. We may think of the development of European music as a
high art-form, formed from a union of skills and traditions from all over
Europe, if especially from Italy, France, Germany and Austria. We may
think of European architecture, especially medieval Gothic architecture
and then the revival of Graeco-Roman architecture, flowing out from
France and Italy to provide a communal style of habitat for our commu-
nal living. We may think of the development of the play and the novel
and the film as high art-forms, to which writers from so many parts of
Europe contributed, forms of collective self-contemplating which may
be seen as a continuation of philosophy by other (and more accessible)

means.
8.9 Finally, there have always been external others to help to consti-
tute the European self. Ancient Greece could not fail to be exceptionally
conscious of the ancient civilisations which had preceded it, some of
which co-existed with it. Ancient Rome, at least as its history is tradi-
tionally told, was never allowed to forget the other surviving civilisations
and the countless unRomanised and non-European ‘tribes’ which were a
permanent, and ultimately disastrous, physical and psychic challenge to
its very self-conscious self. Medieval Christendom found a formidable
other in Islam, which seemed to be a challenge both to Christianity as a
religion and to Christendom as a social formation.
8.10 As later medieval travellers ventured further from mainland
Europe, in particular to India and China, it became necessary to re-
imagine Europe’s place in a physical and cultural world which far sur-
passed it. As European colonisers moved through the rest of the world,
a New World, it became necessary to re-imagine the nature and the
responsibility of Europeanism as an exportable cultural phenomenon.
As most of the rest of the human world developed socially and po-
litically, largely under European influence as a sort of Greater Europe
or Europe-in-exile, it became necessary, most recently, to co-exist with
global social phenomena which have seemed to pose a life-threatening
challenge, physical and economic and cultural, to old Europe as a whole.
8.11 We may conclude that the magnetic attraction of a shared
European subjectivity has thus always been in dialectical opposition to
the attraction of a particularising subjectivity – a European self at work
as a self, and not merely as an other, within the self-constituting of indi-
vidual Europeans. But there are two seriously complicating factors when
such a thing comes to take its place in the self-constituting of European
the concept of european union 235
Union. (1) It is a shared subjectivity largely confined to the minds of

society-members who have pan-European intellectual horizons – so that
it cannot simply be assumed to be present, actually or potentially, in the
minds of other sections of the population. (2) It is a shared subjectivity
which has always been used and abused within another dialectic of so-
cial self-constituting, namely, that of the one and the many, the game of
social power, where it has been invoked in order to promote resistance to
a Europe-threatening other, internal or external, and where it has been
denied in order to evoke loyalty to some particularising conformation
of social power.
The one and the many – the dilemma of power
8.12 Every society is a permanent reconciling of its unity and its mul-
tiplicity. Society transforms the natural power of its members (human
beings and subordinate societies) into social power, through social struc-
tures and systems. Society-members retain their individual capacity to
will and act, but society, by means of such structures and systems, may
cause their willing and acting to serve the common interest of society.
The many of society are one, in so far as they will and act in society’s
common interest. The one of society is many, since it can only actualise
the common interest through its members, human beings and subordi-
nate societies of human beings with all their own particular interests.
8.13 Edward Gibbon said that history is ‘little more than the register
of the crimes, follies, and misfortunes of mankind’.
9
It is certainly true
that any account of European history must include a pathetic story of
every form of social pathology, the ‘internal diseases’ of society iden-
tified by Thomas Hobbes, writing during the disorderly reordering of
England in the seventeenth century, not least ‘the insatiable appetite of
enlarging Dominion’ which he called bulimia.
10

But, on the other hand,
9
E. Gibbon, The History of the Decline and Fall of the Roman Empire, i (1776), ch. 3 (ed.
D. Womersley; London, Allen Lane; 1994), p. 102.
10
T. Hobbes, Leviathan (1651) (London, J. M. Dent & Sons (Everyman’s Library); 1914),
ch. 29, p. 177. Evelyn Waugh, describing the history of an imaginary European country,
says that it had suffered ‘every conceivable ill the body politic is heir to. Dynastic wars,
foreign invasion, disputed successions, revolting colonies, endemic syphilis, impoverished
soil, masonic intrigues, revolutions, restorations, cabals, juntas, pronunciamentos, liber-
ations, constitutions, coups d’´etat, dictatorships, assassinations, agrarian reforms, popular
elections, foreign intervention, repudiation of loans, inflations of currency, trade unions,
236 european society and its law
an Olympian observer of Europe’s long history, seeing it as a whole
in accelerated form, would be struck by the frenzy of ever-changing
forms of polity by means of which Europe has sought to reconcile its
unity and its multiplicity. Within such a perspective, the apparent nov-
elty and specificity of the European Union would seem like yet another
baroque variation on a very familiar theme. The European Union is
a waking dream of the bulimic political imagination, offering govern-
mental dominion over fifteen countries and 365 million people, with the
prospect of much more to come. Beyond the European Union there re-
mains only the dream of all politico-bulimic dreams, a dream which is no
longer merely a dream – global governmental dominion over everyone
everywhere.
8.14 ‘The variety of Bodies Politique is almost infinite.’
11
For twenty-
seven centuries, successive ruling
cliques have shown remarkable skill

and imagination in making the social forms that they have used to organ-
ise social power and in making the theories necessary to establish and to
sustain a particular organisation of social power. Political metaphysics
and social poetry
12
are the raw materials from which the infinite variety
of polities may be formed, sustaining intricate legal structures of power
with subtle superstructures of ideas, to form an inexhaustible supply of
different permutations of the unity-from-multiplicity/multiplicity-in-
unity which is a society. Constitutional intelligence of a high order, with
the clarity of mind which ruthless self-interest inspires, has been used
by princes of all kinds, wise and worthless and everything between, and
by the clever and the shameless courtiers and ministers and bureaucrats
and clerics and intellectuals who have served and advised them.
8.15 The European Union is a society which contains an extreme
multiplicity of subordinate societies, from the government-managed
state-societies through non-governmental societies of all kinds, includ-
ing industrial and commercial corporations, to individual families. The
European Union is also a society in which law has been the main means
massacres, arson, atheism, secret societies Outof[this history] emerged the present re-
public of Neutralia, a typical modern state.’ E. Waugh, Scott-King’s Modern Europe (London,
Chapman & Hall; 1947), p. 4.
11
T. Hobbes, Leviathan (fn. 10 above), p. 120.
12
The term ‘social poetry’ is particularly associated with the names of Giambattista Vico
(1668–1744), for whom historiography is the reconstructing of the story of the social self-
constructing of human consciousness, and Georges Sorel (1847–1922), for whom social
consciousness is both a weapon and the target of revolutionary social change.
the concept of european union 237

of social self-constituting, making use of the constitutive potentiality of
two other realms of law – international and national – to form its own
constitutive legal realm. The One of its own legal order is a Many of the
three legal orders which it contains.
8.16 The layering of polities within a superstructure of law has been
a perennial characteristic of European political history. The transforma-
tion of the Roman polity from Republic to Empire, during the principate
of Julius Caesar’s great-nephew, Caesar Augustus (63 BCE–14 CE), was
also the forging of a new kind of empire, in which the imperial power
would respect the cultural, and hence legal, diversity of the colonised
peoples while superimposing a common law: civil law governing rela-
tions among Roman citizens; ius gentium for relations with and among
non-citizens; natural law, as an ideal of meta-cultural and perennial
law-about-law. In this, as in countless other ways, the Church of Rome
respected the Roman imperial precedent. The legislative, executive, and
judicial system of the Church was superimposed on the internal systems
of all the Christian countries of Europe, using charismatic spiritual au-
thority and the threat of supernatural sanctions to enforce an hegemony
which went far beyond matters of faith and conscience. The Emperor
Constantine’s fourth-century creation of a dual Roman Empire – eastern
and western – left the Church as the sole form of supranational in-
tegration in Western Europe when the western empire faded away in
the late fifth century. With the establishment of a new Frankish
‘Roman Empire’ in the ninth and tenth centuries,
13
the Church took the
hazardous step of encouraging a rival form of supranational European
integration.
8.17 The relationship between the imperialised Pope and the sacrali-
sed Holy Roman Emperor would be the focus of permanent struggle, in-

tellectual and legal and even physical, at least until the disintegration of
Christendom after the sixteenth-century Reformation and the religious
disintegration of the Empire finally enacted in the Peace of Westphalia
(1648).
14
For six centuries, this struggle produced a flood of ideas about
the source and conditions of authority in society, a ferment which would
13
See fn. 1 above.
14
Even the most obvious solution – the ‘two cities’ or ‘two swords’ view, with the Pope as
emperor of a spiritual realm and the Emperor as master of a secular realm – left a rich fund
of less soluble structural problems, prefiguring the constitutional puzzles of the European
Union. Is the Emperor, like the Pope, an agent of God on earth in his own right or is he
subject to the spiritual authority of the Pope? Can two ‘sovereignties’co-exist? Which trumps