Saturday, 27 September 2003

Two Swords for Hegelian Supranationalism

by Kevin Ellul Bonici

At the time of writing, Giscard d’Estaing
released Parts II, III and IV of the draft EU Constitution. But I
will not be technical in this third part. The whole
Constitutional saga unfolds so predictably it offers no challenge
of analysis. And with the pragmatisms surrounding the Summits at
Thessaloniki and Rome, it is bound to become a case of bad soap,
rendering it even unethical to analyse.

Giscard’s latest bid, for example, offers
‘reduced’ powers for the proposed EU Presidency, as well as
queued, rotating Commissioners so that each Member State could at
some stage get to have a Commissioner (which makes no difference
since Commissioners never represent their country, but are sworn
to Union allegiance). There is even an offer for postponing the
implementation of the new divisions of institutional powers till

Certainly a watered down draft would appease
the worriers. As Peter Hain, the UK government representative at
the Future of Europe Convention, most philosophically pointed out
on BBC: we need not make a fuss since 75% of this draft
Constitution is already included in the current EU treaties
anyway. He also told us that now that the word “federal” has been
stricken off the draft, it is evident that a “superstate” is not
on the EU agenda. But that’s Peter Hain, of course, a cross
between Ari Fleischer and the ex-Iraqi Information Minister.

A Coin and Two Swords

In the first part I asked which cross-border
areas cannot be sufficiently tackled solely by national
parliaments. Not surprisingly, the cross-border areas that would
appear to ‘obviously require’ Union competence — defence and
criminal justice — are the ones that still remain under the
control of national parliaments. I say ‘not surprisingly’ because
this is where the remnants of unanimous voting lie — and
every State has so far retained the swords of power. On the other
hand, they seem to ‘obviously require’ Union competence only
because it is now abundantly clear that a single State is what
the EU project is about. It is not a serendipitous political
adventure, as hitherto portrayed by europhiles, but a one- way
pull towards a political black hole.

Today we witness a tug-o-war between those
Member States that say they want ‘less’ integration, like the UK,
Spain and Poland, or more, like France and Germany, with smaller
Member States divided between one side and the other — and
‘pure federalism’, too. Yet this tug of war is not really about
integration, but about chronology. It is about the timing
of integration, and this very much depends on the Union’s
relations with the United States. A common agreement on the EU-US
relationship affects both the areas of defence and criminal

To these two areas many would add the economy
as yet another last bastion of national control. But economic
control is supposedly unheard of in a free market economy. So any
talk of “economic coordination” under Union competence is as good
as a Soviet five-year plan. Just like Lenin’s ‘new economic
order’, the Union order would be controlled by technocrats and
bureaucrats. These are demi-gods who lend an ear only to large
pan- European corporations that adore monopolistic gods.

In reality, the economy of Member States is
already controlled by a multitude of Union laws, regulations,
directives, guidelines, policies, or whatever one prefers to call
these devices. As for Union taxation, indirect taxation already
exists, tax harmonisation is well on its way and there is little
doubt that direct taxation will one day become ‘logically’

Meanwhile, the eurozone is here to stay and
spread, even as the UK, Sweden and Denmark manage to stay out
while each of their economies grows faster than that of the
eurozone. However, the Euro is less about the economy than about
politics. The Euro is not about hassle-free travelling,
investment and commerce, and it’s not even about tinkering with
interest rates centrally instead of multi-centrally. Rather, it’s
about a single European State having a single coin controlled by
a European Central Bank. Today every sound mind agrees that the
Euro currency is part of the EU political project. As Commission
President Romano Prodi proclaimed only last century, the Union
must have its own coin and its own sword.

So now that the coin is largely under Union
control, the sword is all that remains. The sword actually starts
with two swords. One sword is directed outwardly against the
external enemy, the other inwardly towards “the enemy within”.
Both swords cross paths in matters of international terrorism.
The draft Constitution proposes that the external sword be under
the control of the EU President and foreign ministry, while the
internal sword would fall under the EU ‘prime minister’ through
an ‘area-of-freedom-security- and-justice ministry’.

Both these areas are free-falling towards the
Union black hole.

The Sword Defending the Union

The draft Constitution lays down the roadmap
towards a common defence system, ensuring a gradual build up
where each step preconditions the following. It starts with the
setting up of a common foreign and security policy (CFSP),
following the old method of unanimous voting, that yields power
only gradually, but effectively. Much of the unanimous voting,
however, would concern whether to decide an issue by qualified
majority voting or not.

Certainly in the current circumstances even
the first step of having an effective foreign minister is on
rocky grounds. The reawakened British public is not in the mood
for EU foreign ministers and common defence policies, just as it
does not appreciate the revolutionary undertakings of the Union
Constitution, or the euro-coin, or a centralised criminal justice

Nor is the beleaguered Tony Blair, now deplete
of his weapons of mass deception and still polishing his bruised
image after brushing too closely with the neo-con agenda of
George Bush, the archetypical American idiot as perceived by an
overwhelming majority of British citizens. With Blair and his
US-bandwagon allies in Europe, there is little prospect for a
common defence system in the short-to-medium term. But there is
of course the possibility of multinational combat and
peacekeeping forces designed for specific areas and special
circumstances. So the future is not a matter of whether some form
of Union defence system would exist, but what relationship this
defence system would have with the US. And to answer this
question one would first need to know at what stage the US global
crusade is — whether the neo-cons would have multiplied,
metamorphosed or perished. In any case, the new Union power would
have to relate with its neighbours to the south and the Middle
East — it would have to decide on its relationship with the
Arab States as they evolve. We don’t know the life-span of the
moderate Arab leaderships, nor do we know much about the
underlying strengths of the Islamic masses and their political
leaders. And we don’t know the outcome of the US quest to
eradicate dissenting governments across the globe. So the wrong
steps today could mean serious clashes in the future.

In today’s world, the greatest justification
for a European defence system is a US imperialist power gone awry
— that’s the way most Europeans see it, especially in
France, Germany and their satellites. Today’s divisions can only
postpone a centralised finality with a single army. The question
of which Member States will ultimately form a part of this Single
Force is of course another matter. But this Force will grow in
layers, as core continental States led by Germany and France
integrate their forces and start the ball rolling. The ways in
which forces may be integrated or coordinated around different
sorts of ‘common policies’ are numerous, each according to the
circumstances at the time.

With criminal justice it is slightly
different, even if the centralising aim is the same.

The Sword Defending the Union’s Order

Local law enforcement is like rubbish
collecting: it’s an area where the EU has traditionally had
little interest as far as ‘exercising shared competence’. This,
coupled with the fact that every Member State guarded its justice
and home affairs ministries, meant that the growth of a common
criminal justice system has taken longer than other areas.

But circumstances have changed and policing
the area covered by the EU’s external border gives the Union a
great opportunity to gain hold of a very essential force over
social control.

In Part III of the constitutional draft, under
Title III (“Policies and Internal Action”), we find Chapter IV:
empowered to ensure freedom of movement across internal borders,
while also ensuring Union border checks and common policies on
asylum and immigration. The Union is also expected “to ensure
a high level of security by measures to prevent and combat crime,
racism and xenophobia,” as well as measures of coordination
ensuring cooperation between police and judicial authorities of
different Member States (Art. III-153).

This action would be taken by the Union in
accordance with the guiding principles of proportionality and
subsidiarity (Art. III-155), which essentially means that Union
competence could go down to the levels the Union believes
sufficient, and as far as unanimous and majority voting would

It makes dull reading, but I’ll just breeze
through the functions of Eurojust, the European Public Prosecutor
and Europol, and no analysis would be required in this

Eurojust’s mission is “to support and
strengthen coordination and cooperation between national
prosecuting authorities in relation to serious crime affecting
two or more Member States or requiring a prosecution on common
bases, on the basis of operations conducted and information
supplied by the Member States’ authorities and by
Europol.”[Art. III-169(1)]

To this effect, “in order to combat serious
crime having a cross-border dimension, as well as illegal
activities affecting the interests of the Union
, a European
law of the Council may establish a European Public Prosecutor’s
Office from Eurojust . . . ” [Art. III-170(1)] who will be
“responsible for investigating, prosecuting and bringing to
judgment, where appropriate in liaison with Europol, the
perpetrators of and accomplices in serious crimes… and of
offences against the Union’s financial interests
, as
determined by . . . European law . . . ” [Art.

Genuine civil libertarians across Europe are
still concerned about the implications of a European Arrest
Warrant, yet the above makes the arrest warrant sound like a
small detail.

There is more. Section 5 of Chapter IV
concerns “Police Cooperation”. European law would establish
measures of data “collection, storage, processing, analysis
and exchange . . . ” and “ . . . common investigative
techniques in relation to the detection of serious forms of
organised crime,” (Art III-171) while “Europol’s mission
is to support and strengthen action by the Member States’ police
authorities and other law enforcement services and their mutual
cooperation in preventing and combating serious crime affecting
two or more Member Sates, terrorism and forms of crime which
affect a common interest covered by a Union policy

“Europol’s structure, operation, field of
action and tasks” would be determined by a European law.
These tasks include the collection and processing of information
and its exchange, “the coordination, organisation and
implementation of investigative and operational action carried
out jointly with the Member States’ competent authorities or in
the context of joint investigative teams, where appropriate in
liaison with Eurojust.” [Art. III-172(2)].

That’s wide enough. It leaves no doubt on
who’s in charge, particularly in matters concerning “illegal
activities affecting the interests of the Union“, or
“forms of crime which affect a common interest covered by a
Union policy.” True, these powers can take effect only
through a unanimous Council vote after the approval of the
European parliament. But once they start moving, unanimous voting
is lost forever. In other words, the veto is relinquished only
once for every layer of competence ceded. We’ve seen this process
in action with the 2002 amendment of the 1997 Data Privacy
Directive, where privacy became a joke and the retention of data
by telecom providers is ordered specifically for use by security
forces when required.

With every new action that is criminalised by
EU law we note that it involves cross border action. And it
cannot be otherwise, for conventional crimes on the person and
property have long become universal and that is what local police
authorities are mainly responsible for. The cream of the agents
are reserved for security branches that would brush shoulders
with Europol agents covering a whole array of cross border crime
— from prostitution rings and drug trafficking, to money
laundering, arms trafficking, cybercrime, financial crimes,
illegal immigration and of course terrorism. Much of this
cross-border crime is made up of ‘false crime’ — it is
generated by a mixture of victimless and/or consensual crimes,
interpretable complex laws and security data build-up. This is a
highly criminogenic combination in a field where crimes of
opportunity have lured whole sub-cultures, and not just
“professional” criminals, onto the trail of illicit gains. These
are crimes that require extensive data collection and highly
intrusive investigative techniques. And as in any totalitarian
system, the mainstream is hardly aware of what goes on.

In a democracy, social control is a messy
affair — so messy, one can see its failure today serving as
a precondition that justifies a totalitarian system tomorrow. As
the State concocts more criminal legislation, it faces more crime
from more criminalised segments of society, and it will have to
react in a way that creates even more crime, requiring more
legislative countermeasures and more repressive investigative
techniques that undermine and indeed ridicule the very essence of
democratic values in a free society. As a result the so-called
criminal underworld is forced to evolve like a subterranean
sub-species that exists without being measured. It grows on
legislative criminalisation and goes deeper underground through
increased enforcement measures.

Due process and crime control don’t mix well.
So due process gives way and crime control becomes the
self-fulfilling justification for a totalitarian system that is
nonetheless spiced with Enlightenment romanticism and post-WWII
rhetoric. Sadly, the nation states of Europe have long embarked
on over-criminalisation and repressive investigative techniques,
much of it borrowed from the US. What the Union does is that it
centralises and extenuates these powers into a far more powerful
totality. This renders the individual citizen into an even
smaller entity in the eyes of the grand totality of the rule of
Union law, which widens its tentacles across more spheres of
human activity, particularly market-related.

We live at the end of an era that
preconditions the next, yet we haven’t the slightest idea of
where we stand today.

The Spirit of the Times

Identifying one’s own era is a difficult task.
Eras are identified only after the passage of time, often
requiring re-evaluation. But what if we could assess our times
through past political perspectives? What would past political
thinkers, for example, have thought about this draft Constitution
and the emerging Union in general?

Flippant as it may sound, this is my light

The analytical Machiavelli would have smiled
knowingly at the extent to which rulers remain unchanged since
his time, even if today their actions are subtler and apparently
milder. The absolutist Hobbes would have admired its clockwork
recognition of a sole Union power.

Locke, however, would have pondered on why the
Age of Reason should have become so irrational. And Montesquieu,
the ultimate radical, would have seen it as the creation of a
monolithic instrument of despotism that destroys European
diversity through homogenisation. The freedom-loving Rousseau
would have cringed since he believed that devolved power is
essential to freedom, while Paine would have been amazed at how
the Rule of Law could become so spurious and despotic towards the
Rights of Man. As a true liberal, Mill would have questioned the
new morality of the new laws which destroy genuine social

The anti-revolutionary Burke would have said:
‘Look where your Enlightenment rationalism got you! You have
broken the continuity with the past and now you’re attempting yet
another “French” revolution to rid yourselves of the common
people’s ‘private stocks of reason’!

Marx would have been intrigued by the
‘inevitability’ of a wider class struggle inside a larger
political economy under one government, while Nietzsche might
have hoped for the coming of the age of the pan-European
Übermensch that would rule over the uncultured
underlings . . .

Hegel would have been exalted by its
totalitarian features aimed at the collective good of a “European
Nation State” — a Supranational State where “all are free”,
just as he had predicted for the German Nation State of the

And yet, the 19th century sociologist, Emile
Durkheim, would have explained it all through anthropological
reasoning. He would have told us that unlike primitive societies,
which are simple and have only rudimentary informal controls,
civilised societies are structurally complex, and the more
civilised they become the more laws they require. This is an
awkward situation. For one would expect civilised
societies to require fewer laws and punishments, not more.
Perhaps it all depends on whether the governing principle is
despotic or enlightened — the ‘Spirit of the
Times’ . . .

And this is a key Aristotelian concept:
despotism as defined not by the nature of the laws but by the
spirit of their enforcement.

Montesquieu, the radical 18th century
philosopher, divided governance into three main types: despotic,
monarchic and republican. For Montesquieu, these forms of
government were not distinguished by their structure as much as
by their style — the mood and attitude of the rule, the
rationale behind its governing principle, its spirit. With
despotic rule the governing principle is ‘fear’. With monarchic
rule (referring here to feudal monarchy) it is ‘honour’. And with
a republican government it is ‘virtue’ — not necessarily
democratic virtue, but rather a higher type that ensures the
capacity of a republic to thrive and survive beyond time.

According to this Aristotelian concept it is
not the structure or the laws, but the spirit of the ruling body
that defines whether a government is despotic or not. So in the
same vein, it is not the inscribed fundamental rights that define
a civilised society, but the spirit of their observance.

Today’s Western societies have developed on
the principle of the ‘rule of law’ as seen through the
Enlightenment and past-WWII awareness of human dignity and
integrity. But the ‘rule of law’ has come to be completely backed
by the rule of fear, not virtue, not honour. The spirit of these
times has led to an extravagant increase in legislation in the
hope of imposing order. This process has increased the powers of
the Western State and its enforcers, and has increasingly focused
on punitive measures in order to sustain the ‘rule of law’,
creating the criminalised society that we are today, controlled
only by fear.

The general surveillance of European citizens
is still in its infancy, and the post-WWII spirit still survives
today. But if this spirit continues to diminish, then the laws
that exist today are more than the Gestapo or KGB had required in
their own time, especially anti- terrorist, anti-laundering and
data-retention laws, which blatantly overturn human rights
standards without a flicker of the eye. These are laws that may
act as tools for the targeting of political groups and minority

The Advent of Totalitarianism?

It is not difficult to recognise the
totalitarian outcome that pre-exists in today’s conditions. Apart
from modern techno-sophistication (and sophistry), there is
little difference between the new wave of undercover police
networking and those of the notorious thirties. Should a
hypothetical dictator take over the EU, the laws sustaining his
power would be sufficient, requiring only different

Indeed, totalitarianism, fascism, Nazism and
Sovietism are all European systems of government and their seeds
still lurk inside our brains to sprout into modern versions of
the old. Even the seeds of Inquisition still persist. The seeds
are here just as the seeds of Italian fascism had existed before
they flourished with an awakened sense of nationalism with
Italy’s unification in 1870. So was the case with Germany, that
other late-comer to the Hegelian club of Nation States.

It is not difficult to envision, for example,
the future of the EU propaganda machine. This started as a
benign, lively way to boost European identity, but it could
degenerate into a very solemn department promoting a Hegelian
type of European “nationalism”. The pre- conditions exist. This,
coupled with increased powers of telecommunication surveillance,
could lead to political targeting, particularly of criminalised
dissidents and minority groups, which are forced to the status of
“terrorist groups”.

The state of ‘political incorrectness’ in
being critical of the EU is also very evident across continental
Europe. The seeds of totalitarianism are sown, ready to sprout as
soon as enough moisture surrounds them, and that could be
supplied by the EU Constitution, whatever its initial shape and
form. In today’s Europe, if you are EU-critical because you
happen to believe in the freedom of the individual and his or her
society, then you’re a ‘nationalist’. And if you’re a
nationalist, then you’re a ‘far-right extremist’ and by
definition you might even be a terrorist. Yet being critical of
the EU is not about the promulgation of nationalism, but about
the avoidance of Hegelian supranationalism. Even the word
‘nationalism’ has different meanings in different countries. In
Germany nationalism might mean totalitarianism and tyranny, but
to many in Malta nationalism signifies freedom and self-rule.

It seems that investing in one European State
means placing all the eggs in one basket, which would not happen
in a socially unified union made up of Free States. Instead of
granting more freedom to the peoples of Europe after allowing
them to open their doors to each other’s home, the EU is
collectivising 500 million of them into a single European home
with centralised rules and standardised punishments. So if you’ve
freed movement across borders and yet you want to centrally
control it by regulating, monitoring and enforcing upon it, then
the word ‘freedom’ comes out strikingly ironic. In the longer
term you would have freed nothing because you’d have created a
larger version of the Hegelian Nation State with a mishmash of
the “European whole”.

Kevin Ellul Bonici is a criminal justice
specialist currently working in Brussels. Email:

from The Laissez
Faire Electronic Times
, Vol 2, No 24, June 23,
2003: A Constitution for a Single European State, Part 3