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IMAGINING A LEGALLY UNIFIED EUROPE

The European Union (EU) is a unique supranational construct of a kind that has never existed before and which has attracted plenty of criticism. Whether further legal integration is to be continued has been subject to a heavy debate. Critics in the camp contesting a common European constitution argue that Europe lacks a collective identity and that such a constitution would not effectively represent all its people. This essay attempts to invalidate this argument. It will approach the subject matter from a sociological angle and argue that a common European constitution is indeed possible. It will begin with an assessment as to why nations can be seen as imaginary communities and how this results in the idea that law does not need a single nation to function effectively. For this reason, it can be said that a supranational constitution is a realistic possibility, despite the EU consisting of so many nation states. It is simply the politics that prevent this from happening.

Anderson has coined the expression ‘imaginary communities’. It refers to the idea that a nation is ‘imaginary’ because all members of a nation will never know each other and yet they perceive themselves as a community, that is, a unified group bound by nationality.[1] It is imagined because there is no actual or physical connection between the people of a same nation, only the belief. This idea can be justified on numerous grounds.

It can be argued that each of us belong to a nationality, because we believe this to be the case. From the outset it appears that people think they belong to a nationality due to linguistic and cultural similarities. However, in any given nation there will be a multiple of dialects and traditions. For example, in the UK many people consider themselves English despite differences in accent, cuisine and culture. It is possible that any differences amongst people belonging to the same nation are swept away because they are told to do so. This point can be supported by the theory of socialisation. It contends that children adopt certain behavioural patterns when exposed to different ‘agencies of socialisation’, including their family and friends, i.e. they learn from their surroundings.[2] It is likely that if for example, a child born to British parents happens to grow up in Argentine, he or she is most likely to grow up considering him- or herself Argentinian, probably not even knowing about his or her origins and unlikely to even consider him- or herself belonging to a different nation. The Austrian historian, Wilhelm Bauer pointed out that ‘children of the same parents can in certain circumstances belong to different nations.’[3] He effectively argues that nationality is not achieved by blood but by where an individual feels he or she belongs to. Another good example is the case of the unification of Germany. In the 19th century, the German people were distributed in a vast number of small principalities. They did not form a unified nation until much later. [4] Nevertheless, all of them would have generally described themselves as ‘Germans’. It shows that the same people need not live in the same country in order to form a community.

To further enhance Anderson’s argument, it is worth pointing out that the majority of nations are not surrounded by natural, but by arbitrarily drawn boundaries. There is no nation which contains a single culture, language or ethnicity. Therefore, it is arguable that nations are invented.[5] This point is bound to be heavily contested by dedicated nationalists. For example Fichte was convinced that the ‘German Nation’ differs from its neighbours by nature and especially language, despite the fact that the German people did not form a single nation.[6] It is arguable that the idea that language must adhere to its borders is rather naïve. Leersen points out that states constitute of ‘mutually exclusive jurisdictions’, whilst cultures ‘shade’ into each other.[7]
It can be said that defining the nation as an ‘imaginary community’ appears to be a sensible approach from a sociological point of view.

After defining the nation state as an imaginary community, it is necessary to establish its relationship with the law. A nation state undoubtedly requires some form of law in order to manage its people and to give effect to its mentality. For example, for security reasons the use of pepper spray is forbidden in the UK as it falls within the category of forbidden weapons under section 5(1) (b) of the Firearms Act.[8] On the other hand, Austria, which has a more liberal approach towards weapons and a different crime culture, allows its use.[9]

However, it can be argued that law does not need a single nation to function. There are numerous legal systems which function beyond and not within the nation state: religious laws, such as for example the Sharia, do not apply to a single state but to all members of the religious community, no matter in what nation they find themselves in.[10] The Lex Mercatoria[11], have enjoyed international application and are not restricted to a nation state.[12]
The same people need not be represented by the same law: in the English legal system, some extra-territorial legal rules e.g. deriving from the Privy Council or other common law nations, may be applied, as the principle of stare decisis is exempted by persuasive precedent.[13]
A nation does not need a single legal system to function: the American state of Louisiana is a civil law sub-state in a common law nation. Whilst the foundations of Louisiana’s legal system are based on the French civil law traditions, its practices, including the application of precedent, are intertwined with English common law notions.[14]

It could be argued that this is the case because nations are ‘imaginary communities’. If nations could be distinctively compartmentalised such transnational laws would not be possible to enforce. Laws can indeed represent communities, but as communities are not confined to borders, neither are the laws that govern them. Therefore, it can be argued that laws can function effectively beyond the nation state. For example, religion and commerce consist of universal rules which can effectively apply to a wide range of nations and people. However, more sensitive areas such as the control over weapons, may be required to be regulated by more specific laws which are adjusted to individual nations in order to give effect to its mentality. Such an approach is possible on any level of governance, whether on national or international levels. Most federal states devolve certain powers to local governments in order to make provisions that allow effect to be given to local cultures. A common European constitution could follow a similar approach, thereby ensuring that local traditions and mentalities can be observed.
Overall, it can be said that it is clear that the nation needs law, but the law does not need a nation.

Having established that nations are likely to be imaginary communities which do not require their own single legal system, it is possible to discuss the postnational settlement in Europe. The term has been established by Habermas and describes how the importance of sovereign nationhood has been substituted with an increasing number of interstate organisations and institutions.[15] This has been prevalent in recent times, in particular with the emergence of the EU. It can be said that the economic and political desire for peace has contributed to the development from isolated nation states to the postnational constellation. The experience of the World Wars provided a fruitful setting to enhance a co-operative network. It could be argued that a new larger ‘imaginary community’ amongst the European nation states could be formed as a result of the common desire for peace, economic stability and the emergence of the concept of European citizenship.[16]

This postnational constellation poses a fundamental question: is further integration in Europe desirable and if so likely to occur in future? To a certain extent, integration in the EU has already progressed relatively far. The EU treaties, including the Maastricht, Lisbon and Nice Treaties appear to give the EU a constitutional character. These provide the foundations of the European supranational institutions.[17] The ‘Constitutional Treaty’ suggested a single and consolidated constitution, which was not ratified due to the rejections achieved in the referendums in France and Holland. A watered-down version of it was drawn up and ratified with the Treaty of Lisbon.[18]

A number of theorists have argued against the establishment of a European constitution. Grimm argues for the conservation of the EU as it exists today and against further legal integration. He points to the existing European democratic deficit. He believes that a European constitution would not be democratically accountable as it would not be based on a single collective.[19] According to Majone the current ‘democratic deficit is democratically justified’ because voters are preferring a non-federalist approach.[20] It appears that integration is prevented from happening due to politics. If integration is not enhanced, neither can democratic accountability.[21] Therefore, it could be argued that that a new constitution might change voting patterns and enforce new democratic standards.

Habermas gives a powerful counter-argument to Grimm’s conclusions[22]. He contends that a constitution for Europe would be desirable as it would increase economic welfare and allow the states to co-operate on a more sophisticated level.[23] He, in general, agrees with ‘Grimm’s diagnosis’ but finds that a ‘European identity can in any case mean nothing other than unity in national diversity’. [24] He effectively argues that a collective does exist in Europe. Habermas points out that as national consciousness has developed in artificial conditions, there is no reason why it cannot be extended beyond traditional borders.[25] If we return to the concept of nation as an imaginary community, supporting Habermas’ point does not represent much difficulty. As briefly mentioned above, it is possible to view the entirety of the European nation states as an ‘imaginary community’. If we consider the matter, it can be seen that the majority of people in the EU enjoy a certain standard of life, share democratic notions and fundamental ideas of human and basic rights. Obviously there are differences in language and mentality, but it can be debated as to what extent these differences matter in the modern context of globalisation and transnational communities. Cultures are not confined to borders, but rather ‘shade’ into each other.[26] Local laws can give effect to these. Habermas also points out to the successful unification of a formerly disintegrated Germany. Metaphorically speaking, if we could see the formerly disintegrated Germany as a miniature of today’s Europe, many arguments against further integration could be swept away. Habermas rightly argues that ‘… German federalism … might not be the worst model’, considering Germany’s wealth and stability.[27]

When drawing a conclusion, it is visible that the idea that nations form imaginary communities can be supported as nationality can be said to be a state of mind rather set in stone. Therefore, laws can apply to any community constituting of any number or type of people. Although it has to be said that it is probably more beneficial and efficient if countries have the ability to decide on sensitive and mentality-based issues themselves, such as weapons, taxation and education. However, fundamental laws, such as human rights, can be universal. A consolidated European constitution and admittedly a move towards federalism is possible (unless people vote against it as they did in France and Holland in 2009)[28], no matter how many different people are in it. Furthermore, it can be argued that a European collective can be established in a similar sense as the German identity in the 19th century. Every country consists of a variety of people and nevertheless has a functioning legal system, there is no reason why Europe could not. Absolute integration in Europe has not occurred yet, not because it is not possible, but because it does not want to. Whether this will be changed in the future will depend on whether an imaginary community will be formed.

Madeleine Weber

[1] Anderson, Imagined Communities (Verso, London 3rd ed., 2006), p. 6

[2] Giddens, Sociology (Cambridge: Polity, 7th edition, 2013), p. 339; see further: Kozulin, Vygotsky’s educational theory in cultural context (Cambridge University Press, 2003)

[3] Schmidt, ‘The National Question in Europe in the Historical Context of Germany’ in Teich and Porter, The National Question in Europe in Historical Context (Cambridge University Press, 1993), p. 197

[4] Kitchen, A history of modern Germany, 1800 to the present (Wiley, 2nd edition, 2012), p. 1

[5] Gellner, Thought and Change (Weidenfeld and Nicolson, 1964), p. 168

[6] Moore, Fiche: Addresses to the German Nation (Cambridge University Press, 2009), Chapter 4: The Principal Difference between Germans and other peoples of Teutonic descent

[7] Leerssen, National Thought in Europe (Amsterdam University Press, 2006), p. 172

[8] Firearms Act 1968

[9] This is covered under §3 StGB (Strafgesetzbuch) (Austrian Criminal Code)

[10] Esmaeili, ‘Australian Muslims and Citizenship’, Alternative Law Journal Vol 36 (2011)

[11] The Lex Mercatoria is the law of commerce.

[12] Teubner, Global Law without a State (Dartmouth, 1997), p. 3

[13] Algero, ‚The Sources of Law and the Value of Precedent: A Comparative and Empirical Study of a Civil Law State in a Common Law Nation‘, Louisiana Law Review (2005)

[14] Ibid.

[15] Krisch, Beyond Constitutionalism – The Pluralist Structure of Postnational Law (Oxford University Press, 2010), p. 5

[16] European Commission, European Citizenship (Standard Eurobarometer 77, Spring 2012) <http://ec.europa.eu/public_opinion/archives/eb/eb77/eb77_citizen_en.pdf>

[17] Tillotson and Foster, Text, cases and materials on European Union law’ (Cavendish Publishing, 4th ed., 2003), p. 16

[18] Ashiagbor, Countouris and Lianos, The European Union after the Treaty of Lisbon (Cambridge University Press, 2012), p. 2

[19] Grimm, ‚Does Europe Need a Constitution?‘, European Law Journal (1995) 282

[20] Majone, ‚Europe’s Democratic Deficit‘: The Question of Standards‘(1998) European Law Journal 5

[21] Ibid.

[22] Habermas, ‘Remarks on Dieter Grimm’s ‘Does Europe Need a Constitution’, European Law Journal (1995) 303; see also Habermas, ‚Why Europe Needs a Constitution‘, New Left Review (2001) 5

[23] Habermas, ‚Why Europe Needs a Constitution‘, New Left Review (2001) 5

[24] Habermas, ‘Remarks on Dieter Grimm’s ‘Does Europe Need a Constitution’, European Law Journal (1995) 303

[25] Habermas, ‚Why Europe Needs a Constitution‘, New Left Review (2001) 5

[26] Leerssen, National Thought in Europe (Amsterdam University Press, 2006), p. 172

[27] Habermas, ‘Remarks on Dieter Grimm’s ‘Does Europe Need a Constitution’, European Law Journal (1995) 303

[28] BBC News, ‘EU constitution: Where member states stand:’ (BBC, 25 March 2007) http://news.bbc.co.uk/1/hi/world/europe/3954327.stm accessed April 18