Europe, now in the process of writing a Constitution and drawing up a new Treaty, badly needs a second wind. Decades ago the founders of what became the European Union unveiled a pioneering construct for clearing difficult ground. Today, on the eve of enlargement, the time has come to abandon the incremental path, and use our reason to build a new political Europe.
Such a Europe must reject the mirage of universal rights, instead focusing on more fundamental freedoms. It must develop autonomous, elected government at the European level.
When it comes to its purpose and geographic limits this new era of European integration requires a much more explicit vision.
The unwritten laws of democracy
The object of a constitutional preamble is to define the character of the political regime and set the rules legitimising its laws. Respecting these first principles is, in the European case, the only means to harmonise different bodies of national legislation. This was the approach of Europes founding fathers.
We need to complete their work by writing up the hitherto unwritten laws of democracy. Of universal value, they must be agreed by consensus. Their translation into legalese will require an effort of expertise, endorsed when the day comes by a true representation of European citizens. Such a preamble will be called the Charter of Freedoms, thus avoiding a reference to the notion of rights which can only too easily spawn misunderstanding, and which, if it did so, might change the politics of the whole process.
We understand better today why democracy is the natural mode of governance for humankind. It makes positive freedoms possible (rights to do something). Through these, it puts politics at the service of the ultimate end of mankind, the pursuit of happiness. Since no right exists in the state of nature, and legitimate human rights can only be exercised in a democracy, we might usefully rename human rights as citizenship rights.
The mirage of universal rights
Social benefits (sometimes called the right to work, to health, to accommodation, to education) are different in nature. Given healthy state finances, these objectives are placed above ordinary law. But by transforming a political goal into a vision for society, states which inscribe rights into their constitutions take the risk of draining the resources of the very regime that makes these legitimate aspirations possible.
This has been demonstrated best in those countries which stretched logic to an extreme by decreeing that everyones work belonged to society as a whole. Even under constitutional guarantee, the right to work does not avert collective ruination. But the nature of the system changes.
There are no fundamental European rights, nor African or Asian ones, which would not have a universal value. Wanting to build a social Europe is flattering for its advocates, on the condition that the excluded and millions on the dole do not have to pay for it.
Meanwhile, seasoned democrats know that the granting by law of private advantage ends where public force is employed by those who appropriate the power of the state. Minimal living standards cannot easily be guaranteed. Argentina experienced this in the 1930s, and became an underdeveloped country. Under the cover of generosity, the philosophy of rights to, of a social nationalism, perverted this society at its foundations.
The French example is also clarifying. Our supreme court judges elevated the right to a minimum wage to the constitutional level. In their judgment they wished logically to separate revenues stemming from private enterprise, from the guarantee of minimal living standards made by the state. So when they dealt with the notion of national solidarity, taking note of the confusion in the French social security system between support, redistribution and social insurance, they extended to foreign nationals the mutual support shared by our citizens. Consequently, the influx of foreigners has had to be constrained, whilst on the other hand, illegal immigration has received a boost.
In their wisdom, our leaders granted these benefits recognition as human, not civil rights. The rule was applicable to all human beings. In other words, there was no opposition to the idea that any foreigner, mankind as a whole so to speak, should be able to claim French social benefits!
In a world of disappearing borders, these laws show the fragility of the concept of a provident welfare state. On this particular model, Europe would simply have to oblige its states to open up its coffers to anyone.
So the Charter of Fundamental Rights project launched by the European Union and hastily agreed in Nice in December 2000 should be treated with caution. The Charter does not ensure the democratic character of regimes, as a Charter of Freedoms would. Rather, it imposes political options, and introduces foreign definitions of good governance.
Inspired by the zeitgeist, the Charter aims to preserve the status quo in countries facing difficulties. Rather, the primacy of law should mean first and foremost a respect for fundamental democratic norms, and then the consistent application of European laws.
The joint history of democracy and law
Europes long evolution commenced two hundred years ago at the beginning of the modern era. European unification must be interpreted as the threshold to a new stage. 1991, which saw the democratisation of all Europe, can be earmarked as the year when the last great obstacle to global peace-building was removed. But we had to wait for the third millennium before becoming aware of the universality of human values, and our shared fate.
Since antiquity, thinkers have identified democracy as the natural form of government for mankind, and today anthropology endorses their view. The era of kingdoms and empires began to decline in medieval Europe as the emergence of stable political equilibriums favoured a flourishing modernity. A decisive element was the introduction of the rule of law, assisting Christianity in its endeavour to escape the temporal power of monarchs.
More recently, after two centuries of the imprisonment of political, economic and cultural life in the exaltation of national pasts, two European civil wars the last shudders of the old order paved the way for Europes unification. Despite the failure of the European Defence Community, the authors of the Rome Treaties secured the imposition of the golden rule of democracy across borders, as well as the separation of the public and private sphere by denying states the power to interfere in markets. Once again, law drove history forward.
The observance of market rules, through a respect for superior law, puts in place the conditions for peace through the exercise of justice. The liberty to exchange the only good that each man truly possesses, the fruit of his work, creates a distributive justice through the equality of exchange, which stimulates initiative and spreads the spirit of peace. The ensuing wealth generates, in its turn, corrective justice. Mutual assistance spreads on an international scale. Today a peaceful region, Europe has become a virtual polity, lacking only a real political life.
This next step will be taken on the day that the rules governing the European Union permit it to make its legal realm coherent. This will depend on our capacity to establish, more successfully than others, those superior principles through which a democratic regime defines itself.
Reforming the institutions
The other essential step towards a political Europe will have been taken on the day when European interests can truly prevail over national points of view. For this to happen, the decisions of the European Union should in future be made, not only by majority voting, but by a majority that consists of delegates elected at the European level and no longer of government representatives.
This principle is even more necessary in the drawing up of a future constitution. At the appropriate moment, the precise nature of the areas of responsibility of the Union should then be negotiated on an equal footing between European and national delegates.
We are not so far from this goal. With enlargement, the European Council the decision-making body of the Union is effectively becoming a second chamber because of the sheer number of states. It would suffice if the future members of the Council were elected on the basis of universal franchise (rather than being made up of representatives of the national executives).
If one admits that there is a necessity for a political Europe, one also has to come to obvious institutional conclusions, i.e. autonomy on different levels of decision-making. It will be the task of European leaders to convince their publics at home.
By this simple means, we could put an end to the conflict of legitimacy between the Commission, the Council and the Parliament. The head of the executive would derive his legitimacy from the citizens, through the elected European Council. European ministers, chosen from among these elected representatives, would take over the Commissioners responsibilities.
The administration would not be turned upside down. The aggregate number of inhabitants or of member states voting in the Council would cease to be a headache. The institutions could be better understood by citizens, without the risk of institutional deadlock.
If each state had one or two of these elected electors, with an additional delegate for each ten million of inhabitants, for example, the Council members would possess a legitimacy at the European level superior to that held by any of the states representatives today. Deputies could sit back and watch the audience for European matters grow, if they were elected by constituencies of (say) two million people.
Furthermore, the European gaze would focus more on European politics if their representatives divided themselves into two camps or parties at that level. This could be achieved if the electoral system changed to the first-past-the-post system, and provided for the election of individual candidates instead of a party list. As the head of the European executive, the President of Europe would finally be able to take his place at the top table on the global stage.
By these small improvements, Europeans could end their decline and become once again an engine of history on the international scene. By demonstrating that it is possible to join democracies that share the same culture together in a federation, Europe would create a new dynamic. Its endpoint would be the emergence of a new political world order, aimed at making the world a more peaceful place. This is a decisive, a critical moment for mankind, and Europeans do not have the right to err.
Translated from the original French by Julian Kramer
