In this conversation with our editor, Kasia Krzyżanowska, Dr. Signe Larsen (a Fellow by Examination in Law at Magdalen College, University of Oxford) talks about her recently published book The Constitutional Theory of the Federation and the European Union (OUP 2021). In this interview, Dr. Larsen elaborates on the (largely unacknowledged) nature of the EU as a federation, varieties of constitutionalism within EU Member States, and the impact of colonial legacies on the EU.
Kasia Krzyżanowska: With your main argument you challenge some of the biggest academic authorities on EU law: you state that the European Union is not that unique or enigmatic as a sui generis system of law, but rather it is a political form which has been around for several centuries. In fact, you argue that the EU is a federation, a type of political form distinct from the state and the empire. What made you think of the EU in terms of a federation? And why, in your view, has the federal nature of the EU been overlooked for so long?
Signe Larsen: Let me start out with some thoughts about your last question: why has the federal nature of the European Union been overlooked? This has to do with a fundamental misunderstanding, both in political history, but also in legal and political theory, which shapes not merely the study of European Union law and European integration more broadly, but also contemporary federal theory, and law and political science as academic disciplines. The misunderstanding that I am alluding to is that the nation-state is the dominant — if not the only — form of political association of modernity.
By focusing exclusively on the nation-state, scholars have become blind to the significance of two other main forms of political association: the empire and the federation.
Both are composite legal and political entities. Let me try to make this a bit more concrete.
The way we tend to study the European Union is based on a mythical story of the nation-state, and it goes something like this: For centuries, the European nation-states were in more or less constant war with each other. This culminated in the greatest nationalist war of all time, the Second World War, where huge atrocities were committed. After the war, this led the European nation-states to come together in a great peace project — perhaps the greatest peace project of all time — the project of European integration. Thereby, a new and unique legal order was created. This story will be quite familiar because it is the foundational story of European integration. But my sense is that we should be skeptical about that story.
If you think about it from a historical perspective, the dominant form of political association in European history is the empire, not the nation-state.
Composite legal and political entities, like the European Union today, are not really a new phenomenon, but actually the historical default. This makes a fundamental difference in terms of how we study and conceptualize the project of European integration and European Union law.
Let me state something else that is quite obvious, but at the same time rarely acknowledged. The project of European integration was agreed between three declining maritime empires: the French, the Dutch, and the Belgian, as well as two failed fascist empires, namely Germany and Italy. The project of European integration created the possibility, by mutual and equal contract, of providing a legal, political, and economic order on the European continent that could replace the legal, political and economic orders of empire. Crucially, it allowed for the creation of a large internal market that could make up for the lost imperial markets. It substituted one kind of composite polity — empire — with another kind of composite polity — the post-Second World War European order, consisting of the European Union as well as all its Member States.
My argument is that the European project that came about with the Treaty of Rome was a federal union, not a unique or sui generis project. Of course, I am not the first person to advance a federal interpretation of the European Union. This is quite a commonplace argument. But my argument is that, because the federation for the most part is conceived through the prism of the state, or even the nation-state, federal theory will begin with a very problematic dichotomy between a confederation of states (Staatenbund) and a federal state (Bundesstaat). Wheras the confederation is understood as a purely international law organization between fully sovereign states, the federal state is understood to be a public law organization with a fully sovereign federal level, where power is merely devolved to the Member States.
Based on this dichotomy, it is argued that the EU fits into neither the category of the confederation nor the category of the federal state, and for that reason it is characterized by a unique brand of federalism. This would be Joseph Weiler’s argument.
Other scholars would even say that, because the EU is not a state, it can only be quasi-federal. This way of thinking about a federation and conceptualizing the EU is very problematic. If you look at most concrete polities, none of them really fit into these two categories. There is a long political history of a federal union of states, including the United States, Germany, and Switzerland in the 19th century. There is also a long intellectual history of federal political thought, which goes back to the 17th century to Johannes Althusius, but this canon of federal thought is not very widely studied compared to the state-centric canon that goes back to Thomas Hobbes.
We should think of federations in terms of federal unions. The federation is an ambiguous form of association characterised by legal and political pluralism and the lack of a settled internal hierarchy. My argument is that we should think of the federation a distinct type of polity – a discrete form of political association – and that the EU is a manifestation of that.
The federation in general, and the EU in particular, is not a sub-species of the state. For that reason, we should not try to make sense of the European Union based on the theory of the state, and most importantly, through the master concept of the state: sovereignty.
If we operate within this commonplace distinction between the confederation and the federal state, we do not get a proper understanding of federal public law in general, nor of EU law in particular. There is also another problem. If you think of the EU as a unique project, it becomes a very inward-looking field. You only talk to other EU scholars, and for that reason you might miss some fundamental things about the project because you do not compare it to other polities that are in many ways very similar to the one that we are living in now.
What was your inspiration for writing a book on the EU as a federation right now? Was there any meaningful event or fact that spurred your interest in the EU as a federation?
I actually came to this topic as a student of intellectual and political history. The first thing that I studied was the history of federalism and that led me to reflect upon the European Union. Only after that did I realize that it was considered a mystery by EU scholars and by students of European integration. I came into the field of EU law and European integration already with a very good understanding of the history and theory of federal political thought. I had a different trajectory than many scholars, who start out as scholars of European integration and EU law and later turn to federalism in order to try to make sense of the lived experience and political realities of today.
This only proves that EU scholars should also look at different disciplines, not only EU law, but also intellectual history. What would change in European practice — both on the intergovernmental level and on the domestic level of Member States — if we and the EU institutions were to acknowledge the nature of the EU as a federation?
The European Union already is a federation. Diplomats, bureaucrats, and officials who engage in European governmental practice already take part in federal practice, perhaps without knowing it. I do not think that something will necessarily change if the EU’s federal nature were more widely acknowledged or understood.
We already live in a world of federalism. This not only applies to officials, but also to us, European citizens.
EU citizenship law is EU federal citizenship law, and it gives us rights and privileges that are associated with federations: most importantly, free movement and the right not to be discriminated against.
Something that perhaps could change is broader public understanding. If you think about the UK, there is a wide-spread misunderstanding that the federation is a highly centralized super-state. What I show in my book is that this could not be more wrong. The federation, in the way I think about it, has a dual governmental structure, which consists of the institutional apparatus of the Union, but also that of the Member States, without a clearly settled hierarchy between them. Sovereignty then is not a meaningful concept within a federation, neither with regard to the Union, with regard to the Member States. In the context of the UK, there is this idea that if you are part of a federation, you become a part of a new sovereign super-state that will dominate you. Hopefully, what I can do with my work is to demonstrate that some of the preconceptions about federalism as something that will inevitably lead to the domination of the Member States are just incorrect.
Then the officials are in the position of Monsieur Jourdain, who does not know that he speaks prose… As you also conducted a historical analysis of federations, did you notice any particular reasons for why these federations failed in the past? From that perspective, what is your opinion on the more audibly sovereigntist nationalist voices — not only in Eastern Europe, but also in France? Do they mark the dawn of European integration, or simply augur yet another crisis?
I argue that federations emerge historically in response to the crisis of a political form of the state. States tend to decide to come together in a federation when they for reasons of military defense or economic government are incapable of maintaining and sustaining themselves politically. When states come together in a federation, they do that to survive, to maintain themselves politically, and to make sure that they can sustain themselves as political entities. For that reason, the raison d’être for federations is to perpetuate the political existence of its Member States.
But this is not the only aim of federations. By constituting a federal union among themselves, the Member States will create a new political existence/entity — a common union. Federations are also committed to maintaining the political existence of the union as a whole. All federations then have a double telos (a dual aim): the will to preserve the states as autonomous and the will to live together in a common union. All federations are at the same time committed to unity and diversity, to transformation and conservation, and to the past and the future. All constitutional federal arrangements will point in contradictory directions.
This is what I call the internal contradiction of the federation as a political form. This means that the stability of federations (and you can see this historically) depends on a federation’s ability to bring balance to these contradictory aims. Federations fail if they cannot maintain their own internal constitutional balance.
The problem is that the internal constitutional balance will be threatened if one or more of the Member States adopt a constitution, which is hostile or in open conflict with the constitutional order of the union as a whole. The question then becomes whether the Union has the authority to intervene in the internal constitutional affairs of the Member States in the name of protecting either a Member State from itself or the union at large from the Member State.
This is a question we have to ask ourselves today in the context of what is going on in Poland and Hungary. Does the EU have the authority to intervene in Poland to protect both Poland and the EU from the ‘dangers of democratic choice’? From the perspective of federal theory, the answer to this question is ambiguous. On the one hand, the Member States of a federation remain constitutionally autonomous. They have a fundamental right to decide on their own constitutional future. But, on the other hand, the Union cannot allow the Member States to exercise their constitutional autonomy in a way that presents a danger to the unity and autonomy of the constitutional order of the union as a whole. Both the Member States and the Union can advance quite a compelling argument in favor of federal constitutional defense. These types of open constitutional conflicts, like the one we are currently witnessing, are really toxic for federations. They undermine the constitutional balance upon which any genuine federal constitution has to be based. For that reason, federations tend to strike internal compromises in order to avoid open conflicts.
Since we are talking after the Court of Justice of the EU has declared that the conditionality mechanism implemented to protect the EU budget is compatible with the Treaties, we cannot avoid the question about the EU institutions’ engagement with the domestic Rule of Law problems in some Member States. You mention in the beginning of your book that, from the perspective of the federation, “the EU’s potential actions against the rise of ‘illiberal democracy’ in Poland and Hungary, are controversial because they threaten the political autonomy of its Member States”. In this light, how would you assess the CJEU judgment? Do you think it disturbs the balance between political autonomy and the stability of the EU?
The constitutional balance of the EU has already been upset but arguably not so much by the EU, but by some of the Member States. What has been happening is that Poland has adopted a constitutional position which is openly hostile to the project of European integration. The question is whether the time for compromise has passed, or whether there is still room to find a compromise. As I mentioned, it is always possible to advance arguments of constitutional defense both on behalf of the union as a whole, but also on behalf of individual Member States. The CJEU is now advancing the argument in favor of protecting the Union as a whole from the recalcitrant Member State.
What I would expect is that the EU would also advance the argument that it is protecting Poland from internal constitutional threats.
The European Parliament has already called for an intervention in the internal constitutional affairs of Poland in the name of protecting Polish citizens as European citizens. This is what federations tend to do — you could think about events both in the history of the United States and Germany. If the federation intervenes in the internal constitutional affairs of its Member States, it needs to defend this intervention in constitutional terms as a means of protecting the constitution of the Member States as well. In this way, it can argue in constitutional terms that it is not acting against its founding mission of protecting the political autonomy of the Member States.
You present a compelling narrative of the impact of European integration on the Member States’ constitutional orders. You divide Member States into the “core” European states that founded the European Economic Communities – the continuous democracies – and the countries “returning to Europe”. Could you share your perspective on the three waves of acceding countries?
Thank you for that question. I explore what I call the varieties of constitutionalism in the European Union.
From the perspective of constitutional theory there might be something unique about the EU – not in its constitutional nature, but the fact that the Member States of the EU are characterized by different varieties of constitutionalism.
The EU is not merely characterized by constitutional pluralism, but also by a plurality of constitutionalisms. The reason for that is quite simple: the Member States of the EU are shaped by very different political histories and experiences. They have developed different historical narratives, especially about the 20th century. These are stories that are told by the Member States, and they shape their constitutional orders. Thus, there will be very different types of founding myths and constitutional self-understandings within different Member States. Importantly, this means that the project of the European integration is also thought about in radically different ways in different Member States.
Let me try to make this more concrete by saying something about my three ideal types. The first ideal type is what I call ‘post-fascist constitutionalism’. This type is dominant in Germany and Italy, but also in Mediterranean Member States that became part of the European project in the 1970s. Their constitutional projects started with the right-wing dictatorship of fascism and Nazism. The lesson they drew from this experience is that democracy is dangerous and that it has to be constrained. The idea is that the people, if not properly checked, will elect a dictator, and for that reason the people has to be disciplined. Within this way of thinking about the world, true democracy is not a procedural system that merely facilitates the exercise of the will of the people, but it is rather a substantive order of values at the pinnacle of which we have the ‘master value’: human dignity. In institutional terms, post-fascist constitutionalism tends to set up independent institutions, most importantly constitutional courts, to protect this substantive order of values. But the European project is also a constitutive part of this constitutional project because it allows the Member States to ‘lock-in’ liberal democratic values and fundamental rights, as well as a competitive market economy and thereby to protect themselves from the ‘dangers’ of unconstrained of democratic choice.
After the Second World War, there was a so-called double entrenchment both at the constitutional level of many Member States, and at the European level, in order to create this new project of post-fascist constitutionalism.
The limitation of the constitutional autonomy of the Member States by EU law was not perceived as a problem as long as it contributed to the overall constitutional project of value order constitutionalism. This is a dominant way of thinking about constitutions in post-war Europe, not least because it is the type of constitutionalism that shape the project of European integration broadly conceived including both the European Economic Community (EEC) and the European Convention on Human Rights (ECHR). But this is clearly not the constitutional project that is dominant in all the Member States of the EU.
If you think about the UK and Scandinavian Member States, there is a very different constitutional self-understanding and a radically different conception of democracy. For the UK and the Scandinavian states, the founding myth is not the idea of a collapse of the constitutional order into fascism or totalitarianism. These projects are not shaped by a foundational fear of the people. Their systems are based on the idea of the sovereign will of the state as expressed in Crown-in-Parliament. It is not that the will of the people, or parties, is not constrained within this system, but the limits on majoritarianism and democratic choice are imposed by tradition and by constitutional custom rather than a constitutional Bill of Rights, which is protected by a constitutional court. You could say that in post-fascist constitutionalism there is a common language that can solve tensions and conflicts between the European level and the Member States, because they can all think in terms of constitutional values.
If you think about that from the perspective of Germany, it is not a problem, really, that some powers are exercised at the European level, so long as the European project is exercised with the view of protecting fundamental rights. But you cannot do that for the evolutionary democracies — the UK and Scandinavia — because it is very difficult to reconcile the principle of parliamentary sovereignty with the supremacy of EU law. Never underestimate the creativity of lawyers: all the ‘evolutionary democracies’ have through constitutional gymnastics found a way of accommodating these two claims to ultimate authority — but it is not a very easy task.
The third ideal type is ‘post-communist constitutionalism’, which has been very influential in many Eastern European states who became part of the European project after the fall of the Berlin wall. There are many similarities between post-communist constitutionalism and post-fascist constitutionalism. For example, there is the experience of a new beginning after authoritarianism and the creation of a fundamentally new kind of legal and political system. But there are also some fundamental differences that warrant that we treat the post-communist ideal type as independent. One point of difference is constitutional genesis — how the constitutions are created. The dominant form in Eastern Europe after the fall of communism was self-limiting constitutional revolutions. In several prominent cases, we had roundtable negotiations, and we had an attempt to create new regimes without any legal rupture. But another significant difference is how the experience of authoritarianism or totalitarianism is conceived. Within the post-fascist model, totalitarianism is conceived as something endogenous. It is an internal collapse of the legal and political order.
But that way of thinking does not make sense for the post-communist states, where the experience of authoritarianism is understood as exogenous; it is seen as something that was imposed upon these societies by the external imperial power, namely the Soviet Union. The communists were thought of as ‘them’ and not ‘us’. There is not the foundational fear of the people within post-communist constitutionalism. This means that there is a very different narrative underlying these constitutional orders. It is much more about the liberation of the people from the foreign oppressor, which tends to be understood in terms of national self-determination.
A fundamental point of difference is that, what post-communist constitutionalism celebrates with regard to the European project is what post-fascist constitutional states wanted to overcome, namely a world of European sovereign nation-states.
For the post-fascist states, post-sovereignty was seen as the aim of the European project, because it allowed for the stabilization of Europe as a political entity. For the post-communist states, the idea of the return to Europe was a wish or hope to return to the mythical conception of what had existed for a few decades in the inter-war period after the First World War, when nation-states for the first time in history emerged on a large scale in Eastern Europe out of the collapse of the land empires (the Habsburg Empire, the German Empire, the Ottoman Empire and the Russian Empire). There is a fundamental internal contradiction in the relationship with the project of European integration within post-communist constitutionalism. On the one hand, the return to Europe was the banner under which the transition from communism was achieved, but on the other hand, there is always this fear that giving away sovereignty to the European project will lead to the new empire, and this would be a dreadful repetition of the past.
Thinking about varieties of constitutionalism for me is a way of trying to understand the different ways in which the Member States relate to the project of European integration and how conflicts between the two different levels will play out. My sense is that, for the post-fascist states, there is a relatively easy pathway to deal with these conflicts, because there is a shared language and a shared constitutional understanding. It is less easy to do this both for the evolutionary democracies and the post-communist states. I am not a determinist: I am not saying that it will go horribly wrong for all the states that do not belong to the post-fascist type. My point is merely that we should not assume that all the Member States, in constitutional terms, will relate to the European project in an identical way and that the conflicts that inevitably arise in a federal system will be dealt with in the same way in all the different constitutional systems.
Thanks for that concise summary of what you have written in your book. How about the impact of the Member States constitutional orders on the EU legal architecture? What has changed within the Communities/the EU after these enlargements that you have just described? Do you think that the capacity to shape the EU is smaller for the Member States that joined the European project later?
Yes, absolutely. I think it is much smaller. In many ways the European project is still shaped by the vision of European integration that was launched after the Second World War. I am not saying that the project has not developed over time, but the founding does matter. That is the case for all constitutional systems.
It would be much more difficult for countries that have acceded to the project of European integration later to shape this project. This is not just a point about the Mediterranean states or the post-communist states, but also the UK.
It has always been a grudge for the UK. Because they became part of the project not that long after its founding, but still a decade and a half on, this made a huge difference in terms of how the project developed.
Just recently RevDem had a conversation with Dr Molly Krasnodębska, who argued in her book that, despite the formally equal rights every Member State enjoys, there still exists discursive hierarchy among them. Krasnodębska argued that Member States that joined the EU after 2004 struggle with the stigma of being a latecomer, which diminishes their influence on the EU’s common foreign policy. Do you believe that conceiving of the EU as a federation might brush out these — allegedly —ontological differences?
First, I think that it is a very interesting thesis. I have to confess that I have not read Molly Krasnodębska’s book yet, but I definitely will do. I am not sure if the theory of a federation can tell us very much about this, because it seems to me to be very particular to Europe and the project of European integration, and how the relationship to that project has developed historically. Already in the 19th century ‘Europe’ had a very significant role to play within the public law order. Within classical international law in the 19th century, the core states that were considered to be ‘sovereign’ were the ‘European’ states. They were the ‘civilized’ states of the world. Many of the Eastern European states were not necessarily included in that order. I think for the long time the states in Eastern Europe have had a peculiar relationship to ‘Europe’ as a project of power, because they have been almost fully included, but not quite. They have been at the border of Europe. There is a much longer history here that would be interesting to explore in terms of the place of “Eastern Europe” and its relationship to European empires and to Europe as a project.
Could you say a few words about the project on the empire as a political form that you are working on now? Some voice which are critical of the EU have argued that it is displaying imperial or colonial tendencies. Could the form of empire ever be applied to the EU?
What I really want to do in this project is to bring empire and decolonization to the heart of the study of public law, including the European and transnational aspect of public law.
The end of empire is one of the most significant political transformations of the 20th century, perhaps the most significant. At the same time, the academic study of public law, including European Union law, is for the most part conducted as if empire never existed.
In public law and in EU law – and much more broadly in political science and international relations – the underlying methodological assumption tends to be that the state is the only political form of modernity and nations such as France, Germany or the UK are relatively stable trans-historical categories and subjects that have to take the stage in our narratives about history. It is not broadly acknowledged that this leads to a fundamental misunderstanding of the legal and political project of European integration that makes us blind to our own history.
Of course, I am not denying that there is lots of interesting work being done on empire and decolonization by lawyers. But for the most part decolonization is studied as something that happened in the former colonies. In public law and EU law, we rarely turn the decolonial gaze towards the former imperial metropoles, namely the European states. The assumption tends to be that the colonies were something that could be removed as an appendix, without fundamentally transforming the imperial centres. What I want to demonstrate is that this is a really grave mistake, and that if we want to understand the public law order of Europe, we have to reconcile it with the legacy of the empire and imperialism.
The transcript has been edited for length and clarity.
In collaboration with Oliver Garner