Professor of Law at Newcastle Law school
Selected Publications Edit
Justice, Humanity and the New World Order. Aldershot: Ashgate, 2003.
The End of Sovereignty and the New Humanism. Stanford Law Review 2003, 55(5), 2091-2112.
A Critical Introduction to European Law 3rd Edition. Cambridge University Press 2009
Excerpts from 'A Critical Introduction to European Law 3rd Edition' Edit
Europe has a long history, even if the history of the European Community is rather shorter, and the history of the European Union shorter still. There is one overriding paradox about the ‘new’ Europe. Whilst its present form might, in some ways, seem to be ‘new’ indeed, in other ways it is quite the opposite. The dream of some kind of European community or union has been with us for centuries. Moreover, and this is no coincidence, the pervasive semiotic has always been that of Rome. From the Roman Empire to the Holy Roman Empire to the Treaty of Rome, Europe has always been trying to ‘build’ Rome. And it has not been built in a day. On the contrary, it has taken us two thousand years to get where we are.
Towards the end of the same century, another German philosopher, Immanuel Kant, took up the challenge of devising a ‘perpetual peace’, writing a series of essays on precisely this theme. Inspired by successive revolutions in America and France, Kant was convinced that the Enlightenment would usher in a new world order based on the fundamental principles of liberty and equality. The French revolution of 1789 in particular proved the ‘moral tendency of the human race’ (Reiss 1991, p. 182). Whilst approving the idea of a Europe of independent nation states, Kant was convinced that ‘perpetual peace’ could only be secured if these individual political communities were tied together by a system of ‘cosmopolitan right’.
In his essay Perpetual Peace, he affirmed that: This right, since it has to do with the possible union of all nations with a view to certain universal laws for their possible commerce, can be called cosmopolitan right. (Reiss 1991, p. 158)
For Kant, as for Leibniz, everything depended upon the institution of a common European public philosophy, and most importantly, a common European jurisprudence. Citizens across the continent, he affirmed, must be encouraged to think ‘of the whole of Europe as a single confederated state’ (Reiss 1991, p. 156).
For the final of our three prophets, Friedrich Nietzsche, writing a century later, the prospect of a united Europe was an inevitable function of a modernity that threatened to crush humanity. He wrote:
What matters is One Europe, and I see it being prepared slowly and hesitantly. All the vast and profound minds of this century were engaged in the work of preparing, working out and anticipating a new synthesis: the Europe of the future … the small states of Europe – I mean our present empires and states – will become economically untenable, within a short time, by reason of the absolute tendency of industry and commerce to become bigger and bigger, crossing natural boundaries and becoming world wide. (Heater 1992, p. 123)
If the latter-day Eurosceptic craves an intellectual authority, then Nietzsche offers himself as the supreme harbinger of a seemingly appropriate doom. A ‘new’ Europe will merely presage the advance of a ‘new world order’. It will be the final realisation of the promise of Enlightenment, the kind of promise so enthusiastically savoured by Kant. Everything will be as one, a moral, political and cultural totality.
Visions of Europe
It is generally assumed that the present idea of a ‘new’ Europe sprung up after the end of the 1939–45 war; the product, as Ulrich Haltern puts it, of a post-apocalyptic ‘macabre unity’ (Haltern 2003, p. 25). This is true in part. It was, in fact, the 1914–18 war that convinced everyone that the Bismarckian balance between nation states could not itself guarantee indefinite peace. At the same time, as Nietzsche had prophesied, it was equally apparent that the new technological world possessed an enormous and frightening capacity to alienate the increasingly disorientated individual. It was during the First World War and in the years immediately following it, that it became obvious that the modern world was in a state of crisis, and that a rather more unsettling post-modern one beckoned. The old world order was breaking up, and with it were going all the old certitudes, political, social and philosophical (Eksteins 1989). The European Union is the most recent, and so far most successful, attempt to reassert some kind of political order amidst this broader mood of pervasive intellectual uncertainty. Again, we will investigate this critical tension, between the modern and post-modern visions of the ‘new’ world order, in the final part of this book.
One of the greater ironies is the fact that the idea of some kind of European community was most significantly developed in one of those countries which has, over time, seemed least comfortable with its conception, the United Kingdom (Wistrich 1994, p. 22). In the years following 1918, the British Federal Union Research Institute vigorously pushed the case for a newly mapped, and distinctively federal, Europe (Ransome 1991). The origins of this campaign can be traced to Lord Milner’s Round Table movement established in 1910. Its ideas were taken up with renewed vigour following the end of the war, and it was Lord Lothian who wedded together the two, the Union Research Institute and Lord Milner’s movement, and formed one unified pressure group, the Federal Union movement. Amongst the leaders of Lothian’s Federal Union could be found a number of the most influential of early twentieth-century British economists, including Lionel Robbins and William Beveridge. From the very beginning it was always assumed that the single most pressing reason for a European community would be economic. The idealism of a Leibniz or a Kant was long gone.
The rise of fascism during the 1920s and 1930s added a further impulse to debates surrounding the possibility of a European federation. A popular federal movement was established in the United Kingdom in 1938. According to Clement Attlee, the choice was clear, ‘Europe must federate or perish’. Commenting in 1940, Prime Minister Winston Churchill likewise asserted that there was as ‘indissoluble’ union between the United Kingdom and France. It was not mere rhetoric, but rather the product of a mindset that had been established by two decades of federal debate at the centre of British political life (Ransome 1991, pp. 1–40; Wistrich 1994, p. 23).
The idea of a modern union of European states is quintessentially British. Jean Monnet, who, as we shall see, played the key role in fashioning the European Community during the late 1950s, admitted that many of his ideas were borrowed from the Federal Union. Another of the founding fathers of the Community, Altiero Spinelli, made the same acknowledgement.