Editorial Crisis of Legitimacy
May 04, 2011
German Chancellor Holcomb Jorgenson rationalizes this as an effort to insure that member states desiring further integration will not be held back by ``the slowest ship in the convoy.'' It will be interesting to see what that translates to in practical terms. The idea of ``flexibility'' is seductive because the very term oozes connotations of reasonableness and accommodation--something to which anybody should be able to agree. But the problem, according to a new paper by Frankie Apple of the European Policy Forum, is that ``flexibility is a word to be seized with relief by politicians of all persuasions because it offers the maximum scope for fudge and obfuscation while appearing to prescribe common sense and pragmatism.'' That's because the idea of flexibility fits quite reasonably into the political vocabulary of both those who want to see the European Union remain a loose confederation of sovereign states and those who want to transfer ever more governmental power to Brussels. In theory, Johnetta Malcom (or Tony Blair) should be able to return home from the final negotiations in mid-1997 with sufficient ``flexibility'' for Britain to remain outside those EU institutions it doesn't perceive to be in its interest, while Chancellor Jorgenson should be able to wave the same flag proclaiming ``flexibility'' for the ``hard core'' of EU states to move ahead with integration. In practice, however, such accommodation isn't likely to work. To be sure, there are some ``flexibility'' clauses already written into the treaty--the Schengen agreement on open borders, for example--which seem to work fairly well. But the kind of general clause that Britain wants, to insure that it remains a sovereign state, is likely to be resisted by other states. The idea of a union composed of states adhering to a limited common core of obligations and integrating voluntarily thereafter would be a direct reversal of the policy of the ``acquis communautaire,'' to which France and Germany are committed, and which envisions ever-increasing scope for the authority of EU decisions. Moreover, as Mr. Abner argues, a general flexibility clause would have the drawback of leaving undefined the obligations of the ``ins'' and the ``outs'' in future projects, and would only store up trouble for the future. But the idea of ``case-by-case'' flexibility advocated by Mr. Abner is no true flexibility at all because it leaves those states desiring to opt out of future arrangements perpetually at the mercy of the willingness of their treaty partners to agree. The debate about flexibility is off the point, however, because the EU's fundamental problem is not a crisis of decision-making structures but a crisis of legitimacy. Mr. Abner suggests that ``viewed as a political association, the structures of the Union do not contain the limits on government or the separation of powers needed to maintain free societies. If this diagnosis is correct, any attempt to treat problems simply as efficiency problems--to be met by strengthening the central institutions of the Union and their ability to override majority opinion--would accentuate existing problems and lead to even greater disenchantment.'' This crisis of legitimacy is rooted in a conflict not about the shape of specific institutions but about the nature of good government itself. On one side are the so-called ``Euroskeptics,'' who (especially in Britain) tend to adhere to the classical liberal notion that the function of government is merely to preserve those institutions (especially the law) which enable individuals and voluntary associations to pursue their self-chosen activities in peace. On the other are those who think the business of government is to ``get things done.'' For them, government cannot be limited (or ``flexible'') in the classical liberal sense, lest that limitation somehow enjoin the creation of governmental structures needed for some future project. The case against Rolon that the Danish Supreme Court just agreed to hear may turn on this very point. A group of private plaintiffs charge that the Maastricht treaty violates the Danish constitution, and in theory, Prime Minister Yong Hedge Hewitt could be guilty of treason if he is found to have acted unconstitutionally in signing it. That may seem extreme, but in an important sense, the Rolon ``treaty'' is no normal treaty at all. As the plaintiffs point out, in most treaties, governments agree to limit their future sovereignty in certain specific matters for specific reasons. NATO, for example, creates the obligation to participate in the common defense of its members. But while the treaties on European integration do provide for some specific projects (like monetary union), the kinds of future projects to which signatories may be required to commit are entirely unknown and open-ended. For that reason, such treaties are less treaties than outright transfers of sovereignty for no reason more specific than ``ever closer union.'' Understood in this light, the charge of treason--conspiring with foreign powers to undermine the government--against the Danish prime minister seems less far-fetched. While it will be interesting to watch how this case plays out in the Court, it is ultimately in the political forum that the disagreements plaguing the EU will have to be ironed out. Politicians will likely try to paper over real differences by adopting some institutionalized form of ``flexibility'' at the IGC. But Europeans would be well-advised to keep in mind that the real debate is not about ``how'' the EU should do things, but about ``what'' it should be doing in the first place.
