Title: CHARLES LEBEN*
Author: Sieglinde Schreiner-Linford
Company: Harvard Law School

Harvard Law School

Jean Monnet Chair
Professor J.H.H. Weiler

Harvard Jean Monnet Working Paper (Symposium)

This paper is a part of contributions to the Jean Monnet Working Paper 
No.7/00, Symposium: Responses to Joschka Fischer

Charles Leben

A Federation of Nation States or a Federal State?

Harvard Law School    Cambridge, MA 02138

All rights reserved.
No part of this paper may be reproduced in any form
Without permission of the author.

© Charles Leben 2000
Harvard Law School
Cambridge, MA 02138 
USA
charles leben^*

^*	Translated by Iain L. Fraser.

A Federation of Nation States or a Federal State?
It is rare for a major politician’s thoughts to turn away from the immediate and pressing problems of his position in order to consider basic problems whose solutions cannot be immediate. When it does happen, the analysis brings out the capacity for long-term thinking, that is, the capacity to have a genuine vision of the future. This is just what makes the speech given by German Foreign Minister Joschka Fischer at the Humboldt University in Berlin, on 12 May 2000, so interesting.

We do not wish to pick up all the elements of this very rich analysis here, but to focus solely on the problems in the theory of the state that are at the core of Joschka Fischer’s thinking. And just as he deliberately expresses himself in the long term, taking care to stress that these are only personal thoughts and that ‘no-one need be afraid of these ideas’ (p. 8 of the English version), we shall devote ourselves to theoretical thinking ‘beyond the Intergovernmental Conference,’ as he, once again, specifies.

Wishing to summarise the question that the German Foreign Minister asks both himself and his Union partners, one might put it like this: how can the Community institutions be made simpler, more transparent, more effective, more democratic, more welcoming to candidates, more effective with thirty countries, rather than fifteen, while enabling progress along the path of integration and maintaining the nation-states intact? This is a problem that looks rather like squaring the circle.

For Joschka Fischer, the solution is fairly simple: to move from the present state of the Union, which he, as we shall see, very rightly analyses as that of a confederation, to a higher stage which he calls a federation, whose features we shall have to examine. However, before doing so, it would be a good idea to clarify the source of the bulk of the Community’s (or the Union’s) dysfunctions.

1.	The Reasons for Community Europe’s Dysfunctions
These reasons, we feel, lie in the twofold logic which presided over the functioning of the three Communities from the outset. On the one hand, these Communities, each founded by a treaty, constitute international organisations in the classical sense of the term in public international law. The logic governing such organisations is an intergovernmental, or better-stated, inter-state, logic. It means that it is the sovereign states that are the masters of the game and that there is no point in talking about democracy without such institutions, since the only legitimacy that counts is that of the states and their sovereign equality.

Yet, simultaneously parallel to this logic, there is another one at work in the Communities: a logic of integration, or, if you wish, a supranational logic. This is expressed in 1) the institution of the Commission, 2) the possibility given to the Community authorities (Commission and Council) to create derived law that may, in the case of the Regulation, have full direct effect, 3) the creation of a Court of Justice, which, through its case law, has extended the possibility for all of the derived law to have direct effect, by asserting the primacy of Community law over the whole of national law. To this should be added the existence of a parliament elected by direct universal suffrage, whose powers have been enhanced by the various treaties that have come along to revise the original ones.

The result, as the Community construction has evolved, has been great confusion about determining who holds ultimate power in the Community: the Council, i.e., the state organ; the Commission, the supranational organ; the European Parliament; or the Court of Justice itself? The breakdown of powers between the states and the Community is another area of confusion that has ever been present as it has never been clearly defined but simply left up to the case law of the ECJ, namely a body that has actually been given the mission of defending the Community’s supranational character.

Hence the accusations of opacity of decisions and of democratic deficit made to the institutions, to mention only these reproaches. It will, at this point, be noted that the reproach related to the democratic deficit implies that the Community (and beyond it, the Union) is regarded as something different from a mere international organisation. The United Nations, for instance, have never been reproached with suffering from a democratic deficit. They may have been accused of the obsolete composition, in some eyes, of the Security Council, but never, to our knowledge, have they been subject to criticisms about democracy, the separation of powers, or the rule of law. The UN functions on the logic of an international organisation, viz., the inter-state logic.

But if, by contrast, democratic deficit is talked of in the case of the Union, it is necessarily in relation to Union citizens. It supposes that the ultimate basis of the legitimacy of the institution being talked of is the people, the people of the Union, the people who are, in democratic theory, sovereign, taking decisions either by themselves or through their representatives, and controlling the executive. But the supremacy of the democratic logic over the inter-state logic is not organised by the treaties, which, at least in their initial version, give supremacy to the body, the Council, which represents the inter-state logic. And the more the Community construction advances, in other words, the more the elements of integration progress, the more the distortion between the two logics accumulates, to the point of becoming insupportable. This is what Joschka Fischer clearly sees when he says that:

A tension has emerged between the communitarisation of economy and currency on the one hand, and the lack of political and democratic structures on the other … (p. 6).

The simple solution—in logical terms, although by no means in political terms—to these problems would be to set up a federal state, which would allow the antagonism between these two logics to be transcended, and to set up the democratic institutions and a state based on rule of law: a parliament endowed with genuine legislative powers, a responsible executive, independent and impartial judicial institutions, with everything being based on a constitution which includes a human rights charter. But it is just this simple solution that the German minister refrains from invoking, since he knows that merely mentioning it would raise such hostility among some EU states as practically to prohibit debate.

That is why he imagines another solution, which he calls a federation rather than a federal state (Föderation, not Bundesstaat). What this solution consists of and whether it is theoretically well-founded and practically achievable is what we shall now attempt to consider.
2.	Federation and the Constitutional Theory of the State
When studying groupings of states, and the European Union is undoubtedly a grouping, classical constitutional theory knows only two possible types: the confederation of states and the federal state. Can there be a third type, a federation but not a federal state, as Joschka Fischer’s speech seems to suggest?

2.1. Confederation of States and Federal State
As from the end of the Nineteenth Century, German (Laband and Jellinek) and French constitutionalists, starting from L. Le Fur’s theories that inspired the ideas of Esmein, Hauriou, Duguit and Carré de Malberg, formulated a clear legal distinction between two great formulas for groupings of states: confederations and federations. The confederation of states does not constitute a new state but just an association of sovereign states (Staatenbund), while the federal state (Bundesstaat) is, as its name indicates, both Staat and Bund, state and federation. As L. Le Fur writes: 

See, L.Le Fur, Etat fédéral et confédération d’Etats, Paris, Thesis 1896, reprinted, 2000, with a foreword by Charles Leben (Le Fur 2000); for a survey of German scholarship on the question, see, Beaud (1999).

The federal state, in virtue of being a state, has sovereignty’ (p. 590), whereas ‘the confederation of states is only an association of sovereign states [and] does not itself possess sovereignty, nor, consequently, the character of a state. (p. 498)

In the Twentieth Century, Hans Kelsen, while incorporating his theory of federalism into a more general theory of the centralisation and decentralisation of legal orders, confirms the distinction between the federation of states, which is a grouping of states, not itself a state, but a ‘purely international union of states … on the model of the League of Nations,’ and the federal state which is, as its name indicates, a state within the meaning of international law. The members of the federation are, in contrast, collectivities that are no longer states within the meaning of international law. This is because their foundation is to be found in the constitution of the federal state, and not directly in the international legal order. Consequently, Joschka Fischer is quite right to call the present Union a confederation. But what exactly does he mean by a federation?

For a tentative analysis of the European Community in the context of Kelsen’s theory, see, Leben (1991)

H.Kelsen, Théorie générale du droit et de l’Etat, French transaltion of 1997, (Kelsen 1997:367).

2.2. The Federation (J. Fischer) or Federation of Nation States (J. Delors)
There is evidence of the fact that the choice of the term ‘federation’ raised a problem for the German Foreign Minister. In the Chevènement-Fischer dialogue that appeared in Le Monde on 21 June 2000 (p. 15-17), the French Minister of the Interior said, in connection with the European Union, that ‘It is neither a federation nor a confederation. It is something that has never been described anywhere, and does not even resemble the Holy Roman Empire of the German Nation.’ Joschka Fischer clarifies as follows: ‘We sought a neutral word in German instead of, and in place of, federation. Translated into French or English, it still remains federation; so we resigned ourselves. We have to accept the fact that federation is the word that best suits.’

Le Monde 21 June 2000, p. 17, 6th column. On the comparison, curious if nothing else, between the Union and the Holy Roman Empire of the German Nation, see p. 16, 1st column.

It is easy to see why the word federation embarrassed the German Minister: in ordinary language, just as in the language of constitutionalists, ‘federation’ immediately evokes the ‘federal state,’ and this is what has to be avoided, even at the cost of a polemical vocabulary which is absent from the rest of his speech at the Humboldt University. Thus, he says:

Only if European integration takes the nation-states along with it into such a Federation, only if their institutions are not devalued or even made to disappear, will such a project, in spite of all the difficulties, be workable. In other words, the existing concept of a federal European state replacing the old nation-states and their democracies as the new sovereign power reveals itself to be an artificial construct which ignores the established realities in Europe. (p. 9-10, our emphasis).

But, at first sight, the solution Fischer offers to the Community’s problem looks enormously like a federal state. Thus, again on page 9, he writes that for all the problems of enlargement of the Union:

There is a very simple answer: the transition from a Union of states to full parliamentarisation as a European Federation …. And this means nothing less than a European Parliament and a European government which really do exercise legislative and executive power within the federation. This federation will have to be based on a constituent treaty.

If it is added that this European Parliament is to have two chambers, one to represent the Europe of nation-states (a ‘senate’ on the American or German model, p. 10), with a European government able to be formed from the national governments (p. 10) or else opting for the direct election of a president with ‘far-reaching executive powers,’ distinct from the Commission, which would become a mere administrative body, one may legitimately ask what would really separate this federation, which, like Jacques Delors, he calls a ‘federation of nation-states’ (p. 13), from a classical federal state.

This is the solution he prefers: see his declaration before the European Parliament’s Committee on Constitutional Affairs, Le Monde on 8 July 2000 and International Herald Tribune on 7 July 2000. But the idea has been rejected by Chancellor Schröder, who calls it a ‘perfect illusion,’ in Le Monde on 18 July 2000, p. 3.

This point is a capital one politically, as his French colleague H. Vedrine showed in his ‘reply to Joschka Fischer’ published in Le Monde on 11-12 June 2000, by dotting the i’s as follows:

The core of the ideas is the concept of federation and of federation of nation-states. Does this, at the end of the day, amount to one and the same thing, classical federalism? In that case, we are moving towards an impasse.

Everything in the constitutional model presented by the German minister, thus depends on the survival of the nation-states. They would not disappear as in a federal state, or rather, taking up what might be a slip of the pen, not disappear ‘complètement’. It is one thing to affirm the co-existence of the federation and the nation-states, but quite another to present a convincing picture of it. But we have seen that, in this federation, there is to be a European Parliament made up of two chambers and endowed with legislative powers, a European government (perhaps under the aegis of a President of the Union) to act as an executive, and also a ‘constituent treaty which lays down what is to be regulated at European level and what has still to be regulated at national level’ (p. 11).

Translator’s note: see quotation above—in the French version; neither the English nor the German original contain this adverb.

But instead of what the Minister rightly calls ‘inductive communitarisation,’ there will be ‘a clear definition of the competences of the Union and the nation-states respectively in a European constituent treaty, with core sovereignties and matters which absolutely have to be regulated at European level being the domain of the federation, whereas everything else—the least essential bits, let us not forget—would remain the responsibility of the nation-states’ (p. 11).

To know what this ‘finalised federation’ (p. 11) might look like, one can again go to the description Fischer gives of the federation that might be set up among the Member States belonging to the ‘centre of gravity’ that are resolved to go forward without waiting for all EU states to be ready to do so. Here is how the Minister sees the action of the states belonging to the centre of gravity:

Such a group of states would conclude a new European framework treaty, the nucleus of the constitution of a federation. On the basis of this treaty, the Federation would develop its own institutions, establish a government which within the EU should speak with one voice on behalf of the members of the group on as many issues as possible, a strong parliament and a directly elected president. Such a centre of gravity would have to be the avant-garde, the driving force for the completion of political integration, and should, from the start, comprise all the elements of the future Federation. (p. 14).

Without dwelling on the feasibility of this sort of federation within the Union, one should note that the ‘militant’ aspect of this federation, that might be called ‘interior’ and would still, in principle, fail to be a federal state, is, after all, hard to reconcile with a constitutional model in which the nation-states conserve their sovereignties: the federation speaks with a single voice on as large a number of questions as possible, and has a strong parliament and a directly elected president.

But this interior federation foreshadows the European Federation which is the last stage of European integration (p. 15). Can one, in these circumstances, be satisfied with the assertion that:

 … All this will not mean the abolition of the nation-state. Because even for the finalised Federation, the nation-state, with its cultural and democratic traditions, will be irreplaceable in ensuring the legitimation of a union of citizens and states that is wholly accepted by the people’ (p. 11).

Or again:

The completion of European integration can only be successfully conceived if it is done on the basis of a division of sovereignty between Europe and the nation-state. So what must one understand by the term ‘division of sovereignty’? As I said, Europe will not emerge in a political vacuum, and so a further fact in our European reality is, therefore, the different national political cultures and their democratic publics, additionally separated by linguistic boundaries (p. 10).
3.	Sovereignty and Nation States
It seems to us that one of the difficulties attaching to the current debate is the confusion between a legal notion, that of sovereignty, and a historical, political or even philosophical notion, that of the nation-state.
3.1. Sovereignty
As we cannot go into the complex discussions about the notion of sovereignty here, we shall content ourselves with a few remarks. Among the various ideas that this notion can cover, we shall take two. Regarding a state, in the sphere of public international law, we call sovereign a state that is not legally dependent upon another state, or as Kelsen says, a state that has its foundation directly in the international legal order and not in the constitution of another state. This is why the Member States of a federation are not sovereign within the meaning of international law, while those that are part of a confederation are.

See, Kelsen, Théorie générale du droit et de l’Etat, (Kelsen 1997:365-372).

In the domestic legal system, we call sovereign the real or fictitious entity that possesses the summa potestas on which the whole legality/legitimacy of the order depends. Thus, we say that, in such a state, it is the people or the nation that are sovereign.

Coming back to international law, the problem raised by groupings of states is that of either ‘limitations’ or ‘transfers’ of ‘sovereignty’ or ‘powers’ that most constitutions authorise in favour of what may generally be termed as international organisations. Thus, in France, the Constitutional Council, after distinguishing ‘limitations’ of sovereignty (permitted) from ‘transfers’ of sovereignty (unconstitutional, and possibly requiring amendment of the constitution), currently uses the notion of treaties (or treaty provisions) on the basis of whether they infringe ‘the essential conditions for the exercise of national sovereignty,’ or not.

Beaud (1993:1052 et seq).

It will, however, be noted that, to date, whenever the Council has encountered such provisions, in the Maastricht and Amsterdam treaties for instance, what has followed is not a refusal by France to ratify the treaties, but a revision of the French constitution. The conclusion must be drawn that these provisions, while infringing ‘the essential conditions for exercising national sovereignty,’ did not do so to such a degree that the French authorities genuinely feared for France’s sovereignty.

On can, however, well imagine a state which transfers all its powers to an international organisation (a grouping of states) losing its sovereignty in the eyes of international law. Where, then, is the breaking point? The reply of classical international theory is that the transfer of the powers to conduct external relations and national defence by a state bring a disappearance of sovereignty within the meaning of international law. To this, some would add, though in our view wrongly, the transfer of monetary powers.

The point was quite well seen by President Jacques Chirac in his speech to the Bundestag on 27 June 2000: ‘Neither you nor we are envisaging the creation of a European super-state that would replace our nation-states and mark the end of their existence as actors in international life’ (Le Monde, 28 June 2000, p. 16).

Leben (1991:69-72). For a long time, there has been economic and monetary union between Belgium and Luxembourg without the consequence of ending the sovereignty of either state.

It will be noted that in order to highlight the ‘truly historic turnaround’ made by the European Union, Joschka Fischer notes in his speech that, ‘In Maastricht, one of the three essential sovereign rights of the modern nation-state—currency, internal security and external security—was, for the first time, transferred to the sole responsibility of a European institution’ (p. 5). This does not entirely fit the criteria we have set forth, but comes close. Yet, as long as the Member States ultimately remain masters of their defence and foreign policies, which is still the case in the present Union, they retain their sovereignty. If the states were truly to transfer their powers in these areas, i.e., their right to decide their policy in the last instance by themselves, then, there would be loss of sovereignty.

Likewise, were the federation to endow itself with a parliament that possessed true legislative powers in major areas but without supervision of either the ‘government’ of the federation or the national parliaments, this would undoubtedly mark the creation of a federal state. Let us note that it is on this point that Fischer’s proposals appear not just weakest, but also least consistent. For all his desire to ‘sell’ the idea of a federation which leaves the nation-states with their sovereignty, he proposes a most peculiar solution for the chamber representing the European Union’s citizens. This chamber, he writes (p. 10) would be ‘for elected members who are also members of their national parliaments,’ which would avoid any ‘clash between national parliaments and the European Parliament.’

But what does this mean? Would the European parliamentarians be the faithful image of the party divisions of national parliaments? Ought they to be elected by them on the representative system, so as to reconstitute a sort of French, German, British, etc., mini-parliament at the level of the European Parliament? Ought they to resign in the event of new national elections or changes in their national majority? Would they be prisoners of a binding mandate, and could they be recalled by the national parliaments were they perchance to express through their vote convictions that differed from those of their constituents? This is a strange way of advancing the cause of European integration.

One last word on the idea of a ‘European Constitution,’ a recurrent idea taken up again by President Jacques Chirac in his speech to the Bundestag on 27 June 2000. We do not wish to discuss whether or not such a ‘constitution’ is desirable in order to enable clearer and simpler distribution of powers, better participation by citizens and an enhancement of democracy within the Union here. We should merely like to recall that the word ‘constitution’ does not in itself refer to any institutional structure. Thus, the treaties setting up certain international organisations are called ‘constitutions’. This is, for instance, the case for the treaty setting up the International Labour Organisation (‘the Constitution of the ILO’).

Printed in Le Monde of 28 June, p. 16-17. See also the joint proposal by Daniel Cohn-Bendit and François Bayrou presented on 13 June in Strasbourg, Le Monde of 14 June 2000.

It is, nonetheless, true that the normative pyramid of a state is crowned by what is ordinarily called a constitution. In the case of a federal state, this constitution may find its origin in one or more treaties. In this case, the constitution of the federation is the object of the treaty whereby the hitherto independent states combine to create a new federal state. The treaty of political union concluded by the two German States on 31 August 1990 for their reunification is a recent example of such a case. In what circumstances does the transition from an international act to one of domestic law come about?

See, Fromont (1991), and the other articles in this issue of the Review Français de droit Constitutionel on the theme of ‘Germany’s reunification and constitution’.

Charles Eisenmann has explained this clearly. The transformation happens ‘because the treaty provides that its clauses on the organisation of the collectivity that it sets up can be amended by a procedure of domestic legislation, of constitutional revision, i.e., by a majority, no longer unanimity, rule.’ For, in this case, the clauses on the organisation of the group collectivity, ‘though originally rules of international law’ become transformed into rules of state law because of the way that they may be amended. The way they were historically established no longer counts: the treaty [becomes] a constitution.

See, Eisenmann (1982:429) and Le Fur (2000:540-589), for the debates on this question in French and German legal theory at the end of the nineteenth century.

3.2. Nation States
If we now come to look at the concept of the nation-state, which nobody wants to ‘abolish,’ there is, we feel, ambiguity that confuses the discussion. It should be noted that the term nation-state hardly appears, if we are not wrong, in works and treatises of theory of the state or of constitutional law, at least those we have been able to consult. It can be sought in vain, for instance, in Kelsen’s Pure Theory of the State or General Theory of Law and State. These works contain long studies on federal states, unitary states, decentralised or centralised states, but nothing about nation-states. In his Contribution to the General Theory of the State, Carré de Malberg devotes his consideration to the idea of the union of state and nation. He wishes, thereby, to reject the positions that the nation is the original subject of sovereignty, and that it gave rise to the state, to which it is prior. For this eminent constitutionalist, instead: ‘The state is not a legal subject that arises in the face of the nation and opposes it: as long as it is accepted that the powers of a state nature belong to the nation, it must also be admitted that there is an identity between the nation and the state, in the sense that the latter can be only the personification of the former.’

See, Carré de Malberg. Contribution à la théorie de l’Etat, Paris, Sirey, 1920, reprinted in 1969 (de Malberg 1969:12-13).

But we do not believe that it is this debate, which turns around a very specific conception of national sovereignty among French constitutionalists, that the defenders of the idea of the nation-state are thinking of. They are seeking more to defend the durability of a collectivity founded in, and by, history that expresses a cultural cum religious, linguistic and political heritage, and, ultimately, a ‘will to live together’ (Renan) of a very special quality.

Need this will to live together necessarily imply that the collectivity through which the nation is expressed be a sovereign state within the meaning of international law? This is undoubtedly what the ‘sovereignists’ think, to the point that, during the debates on the ratification of the Maastricht Treaty, one could hear politicians declare that even a large majority in a referendum could not make sovereign France disappear, since it does not belong to a single generation. Each has received it from its forebears and has the duty to pass it on, still just as sovereign, to its children.

This is the idea defended by President Jacques Chirac in his speech to the Bundestag: ‘Our nations are the source of our identities and our roots. The diversity of their political, cultural and linguistic traditions is one of the strengths of the Union. For times to come, the nations will remain the foremost reference for our peoples. Contemplating their extinction would be … absurd … (Le Monde of 21 June 2000). But who says the creation of a federal state entails the extinction of national identities? What we see in federal states (US, Germany, Switzerland), whose federated states have less ancient and less rich personalities than the Union’s nations, does not necessarily lead to this conclusion.’

This is an entirely respectable political opinion which does not, in our view, imply that the cultural, religious, linguistic, and political heritage, coupled with the very special quality of the ‘will to live together,’ necessarily have to be expressed through a sovereign state rather than through a federated state within a larger federal state. Is it conceivable that the French, Italian, British, German, Irish, etc., ‘genius’ would be unable to express itself in a federated state? Are our nations not sufficiently ancient to justify this hypothesis? Thus, when Joschka Fischer stresses that, in the final (European) federation, ‘the nation-state, with its cultural and democratic traditions, will be irreplaceable in ensuring the legitimation of a union of citizens and states that is wholly accepted by the people’ (p. 11), this does not, to our mind, mean that all this is possible only if the nation-states retain their sovereignty within the meaning of international law, as, in that case, we do not see how the European federation and the nation-states (still meaning sovereign states) can be reconciled.
4.	The European Federation: Squaring the Circle
So, we come back to our original question: how can the Community institutions be made simpler, more transparent, more effective, more democratic, more welcoming to candidates, and more effective with thirty rather than fifteen countries, while continuing to permit progress along the path of integration and maintaining the nation-states intact? Some recent scholarship, inspired by Carl Schmitt’s ideas on the ‘federative pact’ and brilliantly represented in France by Professor Olivier Beaud, thinks these seemingly irreconcilable elements can be reconciled. Thus, Olivier Beaud writes: 

Beaud (1993:269). See, also, Carl Schmitt, ‘Constitutional Theory of the Federation,’ French translation of 1989, (Schmitt 1989:507-540). It would be interesting to know how far Joschka Fischer (or his advisors) have been influenced by these ideas of Schmitt’s.

The special feature of this theory of the federative pact is that creation of the federation does not make the nature of the Member States that have concluded it as political unit(s) disappear. In other words, there is no merger of the political units constituting a larger whole, i.e., no absorption of the Member States into the federation. From this viewpoint, this theory of the federation differs from the ordinary law of moral personality; in private law, the created collective person makes a screen between its founders and its bodies, and one might say that the latter replace the former. In contrast, in this public-law conception of the federation, the authors of the pact, the subjects of constituent power, continue to exist.

One can readily see the political relevance of such a construction, which might, as if by magic, immediately dispel all the contradictions that analysts of the European Union stumble over: much more than an international organisation, i.e., a confederation (with which it shares its creation through a treaty and maintenance of Member States’ sovereignties) even though it be less than a federal state (but for how long if increasingly numerous powers are transferred to it?), the Union baptised a federation in Carl Schmitt’s sense, might simultaneously be as powerful and effective as a federal state while strictly maintaining the personality and sovereignty of its constituent parts.

We confess that we are very sceptical as to this sort of Hegelian transcendence of opposites and the emergence of a new synthesis. We do not see how a ‘new animal’ involving all the legal and political advantages of the federal state can be slipped into the theory of the state while still conserving the full sovereignty of the ‘nation-states’. But we can very well understand politicians seeking, whether from sincere belief or from calculation, to acclimatise the idea that this sort of result could be reached. If the Community construction, if Europe, has this price, we personally are willing to pay it. And, after all, we feel too uncertain in our ‘academic’ analyses to be able to rule out absolutely the new synthesis defended by the scholarship we have just summarised.

Nonetheless, despite everything, we hold to Spinoza’s old idea that the essence of the circle is irremediably different from the square’s, and that tertium non datur.