Year XLIX, 2007, Number 3, Page 183
The Nation-State: A Thing of the Past European Peoples and States in the 21st Century
ERICH RÖPER
The sovereignty of the European people and of the European state, in the twenty-first century, is an issue closely bound up with the nation-state, which, the successor of the sovereign crowned rulers, has been the cause of so much war and hate. It is thus necessary to think of ways in which, as the precondition for uniting Europe, the concept of the nation-state can be overcome. First, it is important to emphasise the unique nature of European unification, which is a process quite unlike the founding of any other state in the world, centralised or federal. Second, consideration must be given to the legal and political position of the member states, which are still the “masters” of the Treaties. Finally, as a consequence of these considerations, it is necessary to highlight the need to get rid of the nation-state, relegating it to nothing more than a short-lived construction of the past.
People must realise that the nation-state cannot solve their problems, internal or in relation to the other states of the world. The governments of Europe’s member states must realise that only united can they solve the problems of the twenty-first century, rising to the environmental, economic and social challenges that lie before them. There is still a long way to go, as we see, for example, from the current Airbus problems. As long as the people continue to rely on their own governments, it will be possible to build Europe only according to the method of Monnet, in other words, to trust that, to use an expression of Karl Marx’s, quantity will some day turn into a new quality.[1]
I
There is no state anywhere in the world whose creation was the result of a peaceful unification process; even the “fortunate Austrian Empire” (bella gerunt alii, tu felix Austria nube), which for a long time even ruled Lombardy and Pavia, fought numerous battles. And yet it is states, products of warfare, that form the basis of international law. There is no state that is homogeneous, that shares a common language, culture and history, and yet every state’s population is deemed a nation, its organisation a nation-state. There is no state that possesses the component that is crucial to any community of destiny: solidarity among its inhabitants. Instead, prosperous regions are deeply resentful of regions considered to be full of “social parasites” (as we see in Belgium, Germany and Italy for example); separatist regions are eroding seemingly consolidated “nation-states” (a phenomenon seen in Spain and the United Kingdom for example). Even the world’s largest states (China and India) are conglomerates of disparate areas, trying to overcome their multitude of dialects (China) and languages (India) by means of an artificial language (Mandarin) or a foreign language (English). And no state’s constitution was obtained through a referendum, always having been worked out by the elites.[2] In those rare instances in which a constitution did favour the people, like the Constitution of Weimar of 1919, it did not work because of the opposition mounted by the elites.
The nation-state, even had it ever existed in the form of a common destiny shared by all its subjects, is on its way out: obsolete. The road ahead leads to Europe, to the world’s third largest political entity, which, through its unification process, is creating something entirely new. Europe has no dominant member state, like Prussia in nineteenth-century Germany; it has no obligatory national language, like France or Italy do; no homogeneity founded on a history of warfare, like Great Britain. Europe’s population focuses on social solidarity as the foundation for an evolving common destiny, which will be the driving force behind an unprecedented nation-building process, whose dynamics set it apart from the concept of the nation-state of the past two centuries.
II
There is a profusion of literature on the European people. In Germany, the Federal Constitutional Court’s decision of 22.3.1995 on the Maastricht Treaty even hinged on the concept.[3] Taking a narrow view, criticised by J.H.H. Weiler as “state über alles”, the Court defined the unifying Europe simply as an association of states, insisting that, quite apart from state territory and state powers, there was no European “demos”: no European people, based on a European nation, to legitimise European democracy and statehood.[4] Such was, and still is, the idea of the nation-state.
According to the traditional view, the certainty of being part of a European nation is supposed to ensure the European population’s collective identity and sense of unity. But we are not talking Ernest Renan’s “daily plebiscite” here.[5] By pursuing the aim of internal homogeneity, it is claimed, all the members of the community would inevitably acquire a certain similarity. In the nation-states of the nineteenth century, this kind of collective and territorial identification was accomplished through war, expulsion, suppression, exclusion and also by building up ideas about the enemy. Federal states, too, supported the fact or assumption that a political nation will create its own state. In reality, however, it has always been dominant states that have driven the process of unification, through their language, often their religion, and/or their social system. The European Union, on the other hand, although often vilified as a “superstate”, is not following this path. No matter what its unity will look like, united Europe, unlike all existing states and in contrast to the nation-state, will not have a dominant member, a dominant culture or a dominant language. Unity in diversity will be its distinguishing feature. Let us take a look at the situation in Germany: the millions of German flags that were flown during the last football World Cup Finals — some of which still flutter from houses and cars to this day — seem to support the view that now, 60 years after the end of the Second World War, Germany has reached a state of national normality. Of course, the hoisting and waving of flags is not uncommon in other countries. But what does it signify? Do the flag-wavers share a collective sentiment, and if so, to what does this sentiment refer? According to an Emnid poll, 18 per cent of Germans said that their flying of the flag was an exceptional behaviour prompted only by the excitement of the World Cup, 11 per cent said it was the first time they had ever done it, while 62 per cent would never consider doing it at all; finally, a mere 6 per cent said that they fly the flag on October 3, which is Germany’s National Day.
At a symposium of leading trade associations held in Berlin in June 2006, German interior minister Wolfgang Schäuble spoke of the sense of unity and belonging that is central to the membership of any state. The German term Staatsangehörigkeit (state affiliation), adopted in 1871, is particularly accurate and illuminating, not so much because of its juridical correctness, but because it reflects the gradual nature of the process by which the states of the German Empire were unified. Other states refer to the citizen or citoyen of the state. In the USA, it is not only schoolchildren who regularly pledge allegiance to the flag, and thus to their state.
In an interview on July 21, 2006, Volker Kauder, head of the CDU/CSU parliamentary group, emphasised the concept of Germany as a community of destiny, which applicants for citizenship should be required to recognise and identify with.[6] Referring to aspects of Germany’s past and the challenges the country faces in the future, he steered clear of emotive issues, speaking positively of Germany’s integration into Europe and of the preamble of the EU constitutional treaty, which states that the European peoples are determined to forge a common destiny. According to Kauder, this is a sign “that we want to master the future. And everyone has to contribute to this, each in his or her specific role.” Accordingly, a “sharing of responsibility for this country” is something he would expect from a manager taking a profit-oriented decision on whether to invest in Caracas, Bratislava or Emden; and he would likewise expect it from a sales assistant in a bakery in deepest Bavaria, and from a secondary school pupil in Berlin. But can these individuals really be said to be united by a shared responsibility for their country? Moreover, Kauder, in spite of his professed allegiance to Europe, is here referring exclusively to German common destiny, failing to take into account instances of dual nationality, in spite of the fact that the German Federal Constitutional Court’s equal-rights interpretation of the 1913 Reich and State Citizenship Law[7] has resulted, as indeed it has throughout Europe, in a vast number of dual nationalities, on account of the ever-increasing number — currently 1.3 million — of bi-national marriages.[8]
Leaving aside the effects produced by the football World Cup, it can only be this sense of unity that Wolfgang Schäuble was talking about. And it implies more than the German term Volk, derived from the Germanic fylka, first used in the 8th century AD to denote a homogeneous group of people sharing common characteristics. Because, as Schäuble put it, what it means to be German will always be changing under the influence of immigration. And the same is true in every other European country.
III
Political science is concerned with the nation-state. Constitutional law rests on the existence of nations and ethnically homogeneous peoples. According to Ernst Wolfgang Böckenförde, a very influential teacher of constitutional law and for many years a member of the German Federal Constitutional Court, democracy as a constitutional principle is based essentially on the existence of a pre-law community: a phenomenon of consciousness that demands a common national affiliation, a common religion, language, culture, and political awareness.[9] States that lack this national homogeneity are destined to encounter serious political problems, as historians have pointed out, citing the Bismarckian Empire. Naturalisation creates an attachment to the nation as an association of people with a common destiny who share in the state’s successes and achievements, interior weaknesses and external dangers (as though this did not equally apply to guestworkers, often of the third or fourth generation!).
As a historical-political term, the meaning of nation is not unambiguous, Böckenförde continues. Used in reference to a politically-oriented community of consciousness, it defines its own membership criteria; used as a political term it implies, in France and in the English-speaking world, a common political creed: the nation is something you can join, become associated with. The Germans and the people of Central and Eastern Europe, on the other hand, define nation in ethnic-cultural terms, as something linked to a common language, history and culture. Böckenförde laments the twentieth century’s many instances of ethnic expulsion and cleansing — incidentally all of these took place in states with an ethnic-cultural definition of nation!
Rolf Grawert, another important teacher of constitutional law, points out[10] that every people, understood as a set of humans endowed with a supra-personal character, historical continuity, real capacity to act, and complex sense of community, has displayed certain typical structural elements. Basing his argument on definitions of people other than the juridical one, he claims that it is possible to identify a pre-state existence that, through self-recognition and self-affirmation, has the potential to evolve into a collective existence and to create an identity, but at the same time to lead to exclusivity and exclusion. His notion of the self-creating and self-determining nation is based on concepts that reflect the nation-building processes seen in Continental Europe since early modern history and particularly since the French Revolution and it completely disregards the African, South Asian, and Latin American states.[11] With the metamorphosis of the third estate into nation and the widespread attribution of citizenship, the people and the nation ceased to be notions referring to a community of solidarity, made up of equal, free citizens, and became a set of key political-constitutional terms. The structure of the supra-individual association and the ability to survive irrespective of state form — this author continues — are brought out by a characteristic common spirit of the people or by their collective awareness of themselves as a people, even though all modern states excluded women, slaves, minorities (Native Indians, Roma, Sinti, Jews), religions (e.g. Catholics in the USA, the United Kingdom, and Scandinavia), and above all the millions of underprivileged. Grawert advocates a return to the nation-state and nation as the institutions of the pre-integrated world. For him, the integration of the European peoples (art. 1 para. 1 ECT) constitutes a threat to the political communities and to the stability of institutional orders.
Paul Kirchhof, leading teacher of constitutional law and reporting judge in the German Federal Constitutional Court’s decision on the Maastricht Treaty who was tipped to become minister of finance in the event of a CDU/CSU victory in the general elections of 2005, sees the state as something that develops from a core of cultural, religious, economic and political sentiments, and which has never been perceived as an organisation that may be arbitrarily extended or confined.[12] As long as the world is seen as an order of creation in the Augustinian sense, and as long as Thomas von Aquin’s affirmation that human nature and the order of things follow a divine plan of creation remains valid, state building must be regarded as the “tracking down” of a pre-existing order rather than a deliberate act. Even modern political science, devoid of religious influence, interprets the development of a state order against a background of pre-existing natural, economic and cultural conditions, in the sense of its being born into a culture and a history.
Under the influence of the Germany’s division, Klaus Stern, another important teacher of constitutional law, in 1980 reduced Joseph von Held’s Deutungsvarianten des Volks[13] (a concept referring to the peoples of the “Old World”, the nations in the natural sense) to a unitary concept defined by the state; the only exceptions to this were Switzerland and the USA, both of which managed to incorporate a number of peoples, or parts thereof, into a nation.[14] Stem argues that the nation is the totality of people who — through common ancestry and cultural heritage, a shared language, shared religious convictions and historical perceptions as well as a certain mental and spiritual concord — have become a distinct unity and as such have developed a feeling of belonging together, of being one people. The nation is the conscious expression of this sentiment, and the nation-state is the visible expression of this nation’s identification with the state. Stem observes that in Africa, and also in parts of Asia, there is no such close connection between nation and state; as he correctly points out, it was normally the state that created the nation[15] — a result of colonialism.
IV
Common destiny is the central issue in this discussion. But what, for instance, is Germany’s common destiny based on? On two lost world wars with all their killing and suffering perhaps? No, it is not that, seeing as not everyone shared in this suffering: the capital owners came out of these experiences unscathed, even strengthened. Could it be based on Germany’s position at the heart of Europe? Again, the answer is no since every state has a special geographical feature, but this can hardly be considered its destiny. On the crimes committed in the name of Germany, then? Certainly, these crimes still influence Germany’s position in the world and are regarded — by some more than by others — as Germany’s destiny. Nevertheless, it is hard to see how the prevailing opinion, reflected in the above-reported deliberations of leading scholars of constitutional law, can contribute to efforts to explain the past or master the future.
Just like the borders in Africa, the East and Latin America, Europe’s borders are largely the products of random developments determined by diplomacy, political marriages, the possession of better weapons and so on; in short, by developments always driven by the firm resolve of the elites, never by the needs or wishes of the population. Even so-called homogeneous states with natural borders, such as Italy, Spain and the United Kingdom, are conglomerates of different population groups, often in competition with each other, as is continually shown by the activities of the Lega Nord in Italy, the Basques in Spain, and the Welsh and Scots in the UK. According to a poll conducted on 26 November 2006 (i.e. 300 years after the Act of the Union), 52 per cent of Scots and even 59 per cent of English want to abolish the union between England and Scotland.
It was the rulers, aided by their vassals in the third estate and their obedient supporters in the first and second estates, who forced the rest of the population to submit to a “united we stand” sentiment, be it with regard to politics, language, economy or religion. While in some places a national language was forced upon the people (e.g. in Italy), elsewhere deviations from the national language (e.g. Polish or Serbian in Germany) were frowned upon, or even banned (as in France after 1789, when all regional languages were declared illegal). Ethnic minorities were exterminated (e.g. the Native Indians in the USA) or persecuted the Sinti and Roma are to this day, particularly in Eastern Europe). As early as 1535, the Religious Peace of Augsburg spelled the end for Christian minorities (cuius regio eius religio); Jews were expelled, marginalised or Christianised by force; Muslims were not tolerated anywhere. In the USA, Huntington identifies the Hispanics’ reduction of the WASPs, the White Anglo-Saxon Protestants, to a minority group as a real battle of cultures.[16]
V
In political and economic terms, there has never been a united whole. “The people” is the sum of its individuals, not a collective subject. The expression “a nation of Krupps and Krauses”, which draws a distinction between great industrialists, like Alfred Krupp, and simple working men, is just one of the synonyms for the social disparities that have never been resolved. There is no feeling of solidarity between the mega earners in the big or global firms and the rest of the population. In fact, the former see the latter as little more than a pliable mass that can help them to improve their stock exchange ratings. But neither is there a feeling of solidarity between the group embracing the more or less affluent civil servants, employees and self-employed and the large group of people on low incomes, including the long-term unemployed and people on social benefits. The latter two groups are in fact deeply resented among the wealthy, and are accused of exploiting the welfare systems. As Adolf Muschg, a leading Swiss author, wrote in Was ist europäisch (What is European?),[17] we have already got used to accepting as inevitable that a certain proportion of the world’s population fall by the wayside; this is true of the weak of our own society, and even more so for those of African societies.
This tendency is enhanced by globalisation, which severely reduces every nation-state’s socio-economic scope for action. In fact, we are witnessing a gradual and voluntary withdrawal of the nation-state, which is tending increasingly to hand over its tasks to private national and international organisations and committees, none of which are in any way democratically legitimised. In a world ruled by capital, a world in which there is no democratic legitimisation and in which the only interest is to maximise profits, the principle homo homine lupus prevails as men battle mercilessly for the best opportunities to make money, be they in Europe or elsewhere in the world — ubi bene ibi patria. The notion of “home” is, at best, a nostalgic sentiment.
So-called market pressures are dominating all political relations, destroying the last remnants of solidarity. And where there is no solidarity, there is no feeling of belonging together, only pure egoism. To quote Muschg once again, the market is the personification of insecurity per se; it is the system for all those who worship at the altar of profit. And the maxim of such people is the ruthless satisfaction of their —real or imagined — needs. The market cannot solve the problems of the future, be they environmental, economic or social.
The other conditions set by constitutional theory are crumbling, too. According to a microcensus conducted in 2005, one-fifth of the German population — not counting the millions who were expelled from the former East German regions after 1945 — have a migratory background, be it as repatriated ethnic Germans from the former Soviet Union or as naturalised immigrants. In Bremen nearly a quarter of the population has a migratory background, and for a couple of years now statistics have shown that more than half of all newborn babies have at least one foreign, mostly Turkish, parent, making it almost impossible to talk in terms of a traditional German culture. The trend is the same, or even more marked, in other big cities; only in rural areas is it somewhat less marked.
Therefore Wolfgang Schäuble was right to point out that what it means to be German is changing all the time, subtly but continually, as it did in the past. The last census of the German Empire, which was conducted in 1910, showed 58,952,000 persons whose first language was German as opposed to 5,859,000 who spoke a different language; 250,000 of these also spoke German, while the rest spoke only their native language, be it Belgian, Danish, French, Lithuanian, Dutch, Polish or Czech. German passports were held by 4,699,000 of these foreign language speakers. Under art. 45 para. 2 of the Reichstag regulations, art. 41 para. 2 of the Prussian parliament’s rules of procedure, and art. 42 para. 2 of the Landtag regulations, representatives who were not in command of the German language were granted permission to read their speeches. Under the terms of art. 73 of the Prussian Land Constitution of 1920, mixed-language provinces were authorised to enact laws allowing foreign-speaking sections of the population to use official languages other than German.[18] That is how it was in Germany then and it is also how it is today in Spain, for instance, where there are four official languages.
The picture is quite similar with regard to religion. In Berlin and numerous other cities, Muslims, often naturalised citizens or German converts, are already the second-largest religious denomination. But even among Christian groups there is little common ground, especially if we consider “normal” Catholics and Protestants as opposed to Pentecostal and fundamentalist sects, whose way of life, family relations and treatment of women are widely considered unacceptable in this day and age.[19]
Last but not least, regional identities are being rediscovered throughout Europe, challenging the dominance of the national identities. Alexander Grasse,[20] who regards Italy’s regions as a modernising influence, noted that a change of model was needed in this country, given that the concept of the nation-state had, since the mid-nineteenth century, subordinated all other forms of collective territorial identity there. These territorial identities had long been regarded as competitors, as a threat to national unity and identity. Certainly, I personally have more in common — language apart — with other northern Europeans than with the people of southern Germany, Bavaria or Württemberg for example.
Even in the early twentieth century, “homeland” was still a term one associated with one’s immediate surroundings, not with the state. Now, on account of modern communication methods, its range has been considerably extended. But still today, as always, people remain particularly attached to their local district. Hence the rejection — or at least the extremely hesitant acceptance — of anything that is foreign. In the years after 1945, people in Western Germany targeted, above all, those expelled from the former Eastern provinces, who, because of the compensation payments they received from the state, were accused of fattening themselves up at the expense of the Westerners. After 1950 these suspicions shifted to refugees from East Germany, whose reasons for abandoning the German Democratic Republic were felt to be purely economic, i.e. wanting a share of the good life. Many believed that they should be sent back to the Communists if they could not prove that they had actually been the victims of persecution. That this did not happen can largely be attributed to Germany’s “economic miracle” and the resulting labour shortage. This is the kind of anti-foreign sentiment that is experienced by migrants everywhere, as they bring their different way of life into a more or less homogeneous community.
VI
So, in terms of constitutional theory, what remains of the nation — as an apparently organic, unquestionable condition — leaving aside the waving of flags? Certainly, the nation, under the “united we stand” banner thought up by the elites, is a useful concept for drawing men into the army and for sending them into battle with other men united by that same feeling. Thus, in Prussia, anti-French sentiments and the mystified “war of liberation” against Napoleon were promoted as the central ideas of Prussian statehood in order to give the population what was badly lacking in Greater Prussia: a common identity. The battlefields of the First and Second World Wars are soaked in the blood of millions of people who, even as victors, did not draw any benefit from the community of solidarity proclaimed by their elites. In the post-war periods, the people on both sides experienced a sharp decline in living standards, while the elites, on both sides, were the true victors.
In the state, the people are joined together as a legal community (hence the term “constitutional patriotism”), with a more or less efficient administration and a government whose politics, in democratic systems, they can influence. Nationality laws distinguish them from people of other nationalities; in states governed by the rule of law they have certain fundamental rights, but also certain obligations, e.g. military service. The state is a complex system of legal and sociological relations, without emotional value. Former West German president Heinemann aptly remarked once that he loved his wife, but not Germany. The “united we stand” feeling of being a community sharing a common destiny requires common interests. These may be found in the struggle against another state, as in the case of Hitler’s Germany when it started attacking neighbouring states in pursuit of racist ideals, killing and enslaving millions of people in the process. But the “united we stand” feeling can transcend borders, too, as seen with the strikes at General Motors plants throughout Europe, staged as a response to the management’s closure plans.[21] It can also be generated by need and scarcity, as, for example, in the German Democratic Republic, or through the mounting of opposition to the politics of companies and associations, their managers and shareholders, whose “love of the home country” counts for nothing when it is weighed up against company profits and stock exchange ratings. But in order to achieve a true “united we stand” feeling based on solidarity, the interests of the majority of people must at least be similar.
At present, however, these interests are too divergent to allow a feeling of solidarity to develop in today’s multi-faceted society.[22] There is no common destiny. Instead, there is growing segregation, even at regional level. All the major cities have their banlieues or outskirts, which are plagued with poor public services and infrastructures and populated, in the vast majority, by the old, the unemployed and foreigners. Clearly, on its own, the principle of the democratic state based upon the rule of law is not enough, as is shown by the non-relationship between the societies of West and East Germany with their different voting patterns and political affiliations. According to a poll conducted by the main German television channel (ARD-Deutschlandtrend) in October 2006, 51 percent of Germans were dissatisfied with the German political system, and as many as two-thirds regarded the country’s social system as unjust. That these are not fleeting sentiments is shown by other surveys: in August 2005, a Forsa poll revealed that 43 per cent of West Germans, but 74 per cent of East Germans, were dissatisfied with the functioning of democracy in their country, while Eurobarometer’s July 2006 survey gave figures of 38 per cent and 65 per cent, respectively. According to this latter survey, the level of dissatisfaction with European democracy was slightly less: 43 per cent and 56 per cent. This rift between East and West Germany has existed for a long time. A survey conducted for the second most important German television channel in 1985 showed that 59 per cent of West Germans identified Germany with the Federal Republic only, while 25 per cent also included the German Democratic Republic. According to a social survey conducted in 2004 by Sozialwissenschaftliches Forschungszentrum Berlin-Brandenburg, of those living in East Germany, 73 per cent feel moderately or strongly attached to East Germany, 38 per cent to Germany as a whole, and 22 per cent to Europe.
But how is their affiliation to Germany as a whole supposed to grow in the face of the increasing unwillingness of the rich West German Länders and of the country’s “Southern League” to bear the costs of Germany’s reunification (an unwillingness demonstrated anew in connection with health service compensation payments)? A similar lack of solidarity is displayed by the Flemish in Belgium, who refuse to support to their Walloon sisters and brothers, by the Lega Nord in Italy, which does not want to subsidise Southern Italy (the Mezzogiorno), and by Catalonia and other rich parts of Spain towards their poorer brethren. Even in well-to-do Netherlands the North of the country has begun to feel different from the rest and formed a special party, the Parteij van den Noorden.
Leaving aside the effects, mentioned earlier, produced by the football Word Cup, the nation or people, however political and legal science may define it, remains an empty formula that is intended to cover up the irreconcilable differences between the Krupps and the Krauses. A true “united we stand” feeling requires a community of solidarity and a shared destiny, which is meant to balance out these divergent interests, to prevent these extreme differences in income by establishing a system of social justice. The fact that no political resistance is mounted when a board member of an energy company earns more in a year than a well-paid employee throughout his entire working life is, in solidarity terms, quite unacceptable. And this does not apply only to Germany. How can there be talk of solidarity if a company raises its board members’ pay by 30 per cent, while at the same time introducing longer working hours and reduced pay for its employees in order to cut costs. There are many examples throughout Europe of such misguided developments in a market controlled by the elites who profit from it. These same elites also dominate the mass media and are thus able, in their own interests, to influence public opinion on these and other issues, including environmental ones, as was the case with Berlusconi. Faced with an increasing number of environmental catastrophes — solely attributable to the nation-states and their determination to accumulate capital — the world’s entire population shares a common destiny.
VII
Since all, or nearly all, the EU’s largest member states are displaying a profound and sorry lack of aims and values, people are asking what it is that keeps their countries together. But who should answer this question? The need for values even decided the outcome of the US presidential elections in 2004. The desire for identity, aims and values will also decide the future of the European Union, be it the present one with its 27 member states, or perhaps a core group embracing the founding members. Even such a core will need a political identity to guarantee integration, a set of positive values on which to base a common policy. It is not enough to say, like the Pharisee in Luke 18,11, “O Lord, I thank You that I am not as the other men, the robbers, betrayers and other sinners”. In other words, it is not enough for Europe to say, “O Lord, I thank You that I am not super-capitalistic like the USA, not a repressive force like Russia and China, and not like all the other sinning states of the world”. What is needed are positive aims and values on which to build a positive identity, that the people will accept.
Europe must not simply be a neo-liberal market union in a free-trade area. All those working to unite Europe should, before they broach the question of political will, give some thought to its common values. At the top of the list we find the common wish for social security, in other words for a welfare state, adequate means of dealing with criminality, acceptance of international law together with peaceful means of overcoming international conflicts, and commitment to fundamental rights, here and throughout the world. Only after they have done this can they turn to the question of the institutional structure (of the whole or of a core), which will have to be federalist if it is to embrace different societies. In this federation, more competences will be left to the member states (following the example of the Länder in Germany). This is in order to satisfy the common desire for subsidiarity, but it is also because it is the only way to ensure representation of all the member states in the European Parliament and the Commission. The electoral systems of Norway, Spain and Great Britain guarantee that very thinly populated areas have political representation. In Norway, for instance, the thinly populated North has three times as many members of the Storting, the national parliament, compared to the South, where three-quarters of the population live. Europe has to accept that it will, for instance, have no single election law, but will instead have to keep the system of national quota mandates in the European Parliament, which has no real relation to the population.[23] It also means, that any core — the Shengen area or the Eurozone — may constitute a limited subject, certainly at first, and not a complete Union, and that these different cores need not always include the same countries. But, ultimately, it is these cores that will prompt all the member states to join together and form a real Union.
VIII
In all European states, a “united we stand” sentiment, a feeling of solidarity and common destiny, the “daily plebiscite” that Ernst Renan called for in 1879, requires certain socio-economic conditions. Borders are and will be necessary in order to be able to shape the social relations within. But where these are or should be in today’s political and economic scenario will not be defined by language, religion or ethnicity. Given the prevailing circumstances, the likely outcome will be a united Europe, in spite of Paul Kirchhof’s claim, made in his opening speech at the 66th Deutscher Juristentag on 19.9.2006, that as a nation-state we Germans are being suffocated by today’s ever closer European Union. As long as Europe’s member states remain — as the German Federal Constitutional Court defined them — masters of the European Treaties, they will continue to set the rules governing many inter-and inner-state relations — but if we look to the future, it is clear that they are an obsolete model: political entities without any real meaning. They are destined to be incorporated into a federation of a new kind. In the economic field, the idea of the European company or enterprise is an important step in that direction.
But unlike other federations, with the possible exception of India, this new form will be characterised by the multifaceted, side-by-side existence of very small and very big members, and the absence of a dominant centre. There will be a diversity of languages, probably with English as the lingua franca. There will be no dominant religion or culture, because the differences that exist, especially regional ones, are far too pronounced. There will be no formal democracy in which all votes carry the same weight, according to the German model. More likely will be the model that takes into account population density and size of the district through quota mandates, as used in Norway, Spain and the United Kingdom. It will be a colourful and thus peaceful political community of many peoples belonging to something beyond the state — very different from the prescribed homogeneity of today’s states. This United Europe will thus be a model for worldwide peace. To quote Ernest Renan again: “Die Nationen sind nichts Ewiges. Sie haben einmal angefangen, sie werden enden. Die europäische Konföderation wird sie wahrscheinlich ablosen”. (The nations are nothing for eternity. They have begun one day, and they will end. Probably the European confederation will be solution).
[1] This is the case of the Charter of Fundamental Rights: it is only a compilation of the Treaties, regulations, rulings etc., which acquired a new quality when they were brought together in a charter. See Erich Roper, “Van den EU-Grundrechten zur Verfassung”, Deutschland Archiv, 2001, p. 122 onwards.
[2] An exception was the constitution of the Frankfurt National Assembly of 1848/49, elected by the males of all German states. It was more progressive than anything formulated previously and it would still be a good constitution today. It did not come into force, however, because the elites, the crowned rulers and the states did not want it, just as we see in the EU today.
[3] Ruling of the German Federal Constitutional Court/Bundesverfassungsgericht (BVerfGE) 89, p. 155 onwards.
[4] Joseph H.H. Weiler, Der Staat “über alles”, Demos, Telos und die Maastricht-Entscheidung des Bundesverfassungsgerichts, New York, 1995.
[5] Ernest Renan, “Das Plebiszit der Vergesslichen, Über Nationen und den Dämon des Nationalismus - ein Vortrag aus dem Jahre 1882”, reprint in Frankfurter Allgemeine, 27.3.1993.
[6] “Ein Zeichen gegen die Beliebigkeit, das Wort van der ‘deutschen Schicksalsgemeinschaft’” (expression meaning “German common destiny”), Interview in Süddeutsche Zeitung, 21.7.2006, p. 8.
[7] BVerfGE 37, p. 217 onwards.
[8] According to the press release of the Federal office of statistics of 8.7.2002 in April 2001 766,000 Germans had foreign partners.
[9] Ernst Wolfgang Böckenförde, “Demokratie als Verfassungsprinzip”, Handbuch des Staatsrechts, vol. II, Heidelberg 2004, p. 445 onwards.
[10] Rolf Grawert, “Begriff des Staatsvolkes”, ibid., p. l08 onwards.
[11] See, for instance, Nobelpricewinner Wole Soyinka (Nigeria), “Zur Korrektur von Geburtsfehlem, Probleme mit künstlich konstruierten Staaten in Afrika und Europa”, Interview in Tageszeitung (taz), Berlin 25.09.1993, p. 16
[12] Paul Kirchhof, “Europäische Integration”, Handbook of Constitutional Law, vol. IV, 1992, p. 865 onwards.
[13] Joseph von Held, System des Verfassungsrechts der monarchischen Staaten Deutschlands, Erster Teil, 1856, p. 110.
[14] Klaus Stem, Das Staatsrecht der Bundesrepublik Deutschland, vol. II, Munchen 1980, p. 4 onwards.
[15] See Erich Röper, “Staaten schaffen Völker, nicht Völker Staaten”, Kommune, 12/ 1999, p. 6 onwards.
[16] Samual P. Huntington, “Auf Mexikaner können Sie sich nicht verlassen, Das Gespenst der Immigration”, Interview on his book Who Are We? Die Krise der amerikanischen ldentität, Leipzig 2005, in Frankfurter Allgemeine Sonntagszeitung, 30.10.2005, p. 28.
[17] Adolf Muschg, Was ist europäisch?, Munchen 2005, p. 97.
[18] With details Erich Roper, “Vielvolkerstaat Deutschland”, Deutschland Archiv 27 (1995), p. 625 onwards.
[19] In that sense Ekin Deligöz, turkish-born Member of the German Federal Diet, Interview in Das Parlament, 13.11.2006, p. 3. Also with more details Erich Röper, “Die Grundrechte als Integrationsmaßstab”, Zeitschrift für Rechtspolitik, 2006, p. 187 onwards.
[20] Alexander Grasse, Modernisierungsfaktor Region, subnationale Politik und Föderalisierung in ltalien, Wiesbaden, 2005.
[21] See Erich Röper, “Europäischer Streik bei GM-Europa”, EuroAS (5/01) 2001, p. 87 onwards.
[22] Gesellschaft im Reformprozess, study of the Friedrich-Ebert Foundation, Sept. 2006, http://www.fes.de/Dokumente/061016_Gesellschaft_im_Reformprozess.pdf (20.12.2006).
[23] See Julia Gieseler, Föderalisierung durch gewichtetes Wahlrecht, Munster, 2006.
