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The values which can be assigned to the variables harmonization, subsidiarity and cultural solicitude are limited at the point where the value of one reduces the others to zero. These "zero points" form the walls of the matrix within which federal structure is possible. These walls are represented in Europe by the three great experiments in European harmonization within systems cobbled together with what passes for "multi-cultural" ideals. Two of these experiments stand as the great bookends of modernity. On one end of the twentieth century stands that now apocryphally tragicomic Kingdom-Empire of Austria-Hungary. On the other stands the emerging union of Western Europe. The former had little holding it together other than the dynastic ambitions of the Habsburg family. The latter was constructed as a great experiment in expiation for the sins of national-socialism and as a behavior modification program for nations addicted to self-destruction. Overshadowing both federations is the "federation" of the Romans. Republican and then Imperial Rome was the first successful union of Europe, though one ultimately over-centralized and unable to adjust to change. Each of these federations share many underlying similarities and frailties. The ways in which these federal systems have mediated between the pulls of harmonization, subsidiarity and cultural solicitude suggest the nature of the tensions. The histories of each also provides the lesson that these tensions, if not successfully mediated, can destroy any western supra-national government.
Indeed, reading contemporary accounts of European "citizenship" and the contemporary socio-political psychoanalysis which passes for theorizing about the "internationalism" of the emerging "European Union," I cannot help but recall Robert Musil's description of Austro-Hungarian nationhood in his satirical novel, Der Mann ohne Eigenschaften ("The Man Without Qualities"):
This sense of Austro-Hungarian nationhood was an entity so strangely formed that it seems almost futile to try to explain it to anyone who has not experienced it himself. It did not consist of an Austrian and Hungarian part that, as one might imagine, combined to form a unity, but of a whole and a part, namely of a Hungarian and an Austro-Hungarian sense of nationhood; and the later was at home in Austria, whereby the Austrian sense of nationhood actually became homeless. The Austrian himself was only to be found in Hungary, and there as an object of dislike; at home he called himself a citizen of the kingdom and realms of the Austro-Hungarian Monarchy as represented in the Imperial Council, which means the same as an Austrian plus a Hungarian minus this Hungarian, and he did this not, as one might imagine, with enthusiasm, but for the sake of an idea that he detested, for he could not endure the Hungarians any more than they could endure him, which made the whole connection even more involved than ever. As a result, many people simply called themselves Czechs, Poles, Slovenes or Germans. . . . It entirely suffices if it is noticed that the mysteries of this dualism (such is the technical expression) are at least as difficult to understand as those of the Trinity; for the historical process more or less everywhere resembles a juridical one, with hundreds of clauses, appendices, compromises and protests, and it is only to this that attention should be drawn. All unsuspectingly the common man lives and dies in the midst of it all, and lucky for him that it is so; for if he were to realise in what a process, what an action, he is involved, and how many lawyers, what costs and motives, he might be driven to persecution mania, whatever country he lived in. (Musil 1930, I, 198-99).
Here is the paradox of Europe, condensed within the borders of that doomed Austro-Hungarian experiment in multi-national federalism. An attempt at universalism within a heterodox community, the Imperial machinery in Vienna lacked the power to effectively act as the instrument of trans-border harmonization. Ironically, the solicitude for the "common person" was lost upon the rejection of the universalism offered through Vienna in the rush to establish tribal nations, each with national minorities ripe for exploitation. An empire without some minimum power to create and enforce norms loses the power to bind its parts together. Against the normative power of the meta-state are arrayed the formidable powers of the traditional nation-state. Set against both, appearing at once the friend of one and then the other, are the volk populations, whose identity does not necessarily correspond with the realities of political borders, and which seek to play nation against supra-nation.
Europe is leery of the error of Austria-Hungary, as well as of the disaster of the aftermath of the disintegration of that trans-national empire -- a semi-tribal system of nation-states cannibalizing each other and their minorities. Europe longs for the certainty and repose of an ancient Imperium Romanum but with the economic stability of Rome's most successful modern iteration, the uncomfortably contemporary Imperium Americanum. Yet this longing is qualified by the fear of empire. Europeans understand that the process of "binding" is not painless. The shadow of Rome speaks of the coercive power of unity. Similarly, the story of the emasculation of the American states since the nineteenth century serves as a modern cautionary tale. That aspect of European unity is one which the people of Europe have resisted since the fall of the first empire. Gibbon's description of the potentially choking power of trans-national harmonizing power amply expresses the basis for this resistance:
The division of Europe into a number of independent states, connected, however, with each other, by the general resemblance of religion, language and manners, is productive of the most beneficial consequences to the liberty of mankind. A modern tyrant, who should find no resistance either in his own breast, or in his people, would soon experience a gentle restraint from the example of his equals, the dread of present censure, the advice of his allies, and the apprehension of his enemies. The object of his displeasure, escaping from the narrow limits of his dominions, would easily obtain, in a happier climate, a secure refuge, a new fortune adequate to his merit, the freedom of complaint, and perhaps the means of revenge. But the empire of the Romans filled the world, and when that empire fell into the hands of a single person, the world became a safe and dreary prison for his enemies. The slave of imperial despotism . . . expected his fate in silent despair. To resist was fatal, and it was impossible to fly. (Gibbon, 73).
Europe remains mistrustful of the Roman Empire which its migrating peoples destroyed so effectively in the fifth century of the current era. Europe prefers the comfortable weakness of Austria-Hungary within comfortable and malleable universalizing social and political norms which can be enforced. At least since Althusius in the seventeenth century, European political theory has been concerned with the optimal size and constitution of political associations. (Althusius, IX). Since religion can no longer provide that sort of unity of norms, something else, something previously caged, must be re-loosed on Europe. But the fear is that, uncaged, supra-national institutions will succeed to the power of imperator and subvert the power of state and people. Strong chains must be constructed to keep this potestas imperandi universalis under control.
In the West, federalism has provided the answer to these inquietudes. The notion of associations based on covenants, in imitation of the covenant between God and humankind, and the existence of hierarchies of such covenants, is deeply embedded in European Christian thought. (Elazar, xxxvi-xl). Its development remained significantly more theoretical in Europe than in, say, the United States. In Europe, the statist theory well epitomized by Jean Bodin, in which power flows from the top down, became the basis for the justification of the modern nation-state. Harmonization becomes more consequential at the most general level of political power. Until the seventeenth century, harmonization as norm setting was the province of European religious establishments. From the rise of the European nation-state until the early twentieth century, and with the exception of that closely knit international federation of states known as the United States, the most general level for harmonization was the large nation-state.
In the United States, covenantal notions and social contract theory revived the idea that hierarchies of governments, deriving their power from and through the hierarchy, became the foundation of the Republic. Since 1945, European nation-states increasingly have sought protection from a variety of ills and threats within the ambit of "multi-national" organizations. The formal character of such organizations has been the subject of lively territorial debate among commentators. These debates better reflect academic divisions in the study of law (international law, constitutional law, public law, private law, etc.) than the realities of these organizations. Whatever the utility of the debate about the character of, for instance, the United States or the European Union (is it a unified federation like a nation state, is it a sort of mutated international organization), what has become clear is that all such organizations behave like federations. What has also become clear is that all federations do not necessarily behave in the same way. (E.g., Duchacek, 1990, at 1-3; King, 1982, at 133-41). Such supra-national organizations can fall anywhere within a spectrum from highly integrated international federations like the United States of America, to very loosely integrated federations, like the United Nations. The political imperatives of the second half of the twentieth century push the power (competence) to create and enforce fundamental norms up to the federal nation, be it the federal government of the United States, the E.U. or even GATT organizations. The only exception, as Ugo Mattei has suggested, is perhaps in legal systems he dubs "traditional," for example within Islam. (Mattei, 1997). Yet even within such systems the federative power of Islam may well shift norm making power to the religious federation at the expense of the political. The fact that this is a battle that Catholic pontiffs fought and lost less than one thousand years ago does not make the battle any less real in the Islamic world today.
What has also become clear is that the character of these federations, as well as the relationships between federation, sub-federation and populace is quite dynamic over time. The United States provides an excellent example of the way in which the centripetal forces within the American federation have worked over the course of the last two hundred years. The independence of the constituent states of the American federation was crushed violently by a civil war which ended its violent phase in 1865. This independence was further reduced by the federal judiciary's acquisition of the power in this century to articulate norms which bound the lawmaking of the constituent states as well as of the exercise of power by "the people." Yet today, there is a substantial stirring of change within the federation regarding the distribution of power, as well as of the power of the federal judiciary to articulate fundamental norms. It is possible that readjustment can occur even within the tightly packed American federation.
The European Union is an example of a dynamic federation which stands somewhere in between the closely integrated United States federation and the loose organization that passes for what we prefer to label "international" organizations. The uncertainty respecting the resemblance of the Communities to either the model of the United States or that of the United Nations (Weiler 1997; Bellamy & Castiglione, 1997) is more evidence of the unstable characteristic of federations than it is of uncertainty about the peculiar characteristics of the Communities. (Cf. Richmond, 1997). It has become commonplace to believe that the character of the E.U. has "progressed" from limited and loosely knitted international organization to something more integrative and "federal." And so it has. Yet federal it has always been. Thus understood, the experiment in European federalism is neither sui generis not unaffected by history, politics and culture.
As such, this federalism must mediate constantly between its three fundamental political elements -- the centripetal force of federal "nation", the centrifugal forces of constituent "nations" and imploding forces of sub-national volk nations. Over the course of a history a fraction as long as that of the United States, the European federation has demonstrated a remarkable ability to shift the power relationships within it. But this shifting is done within the confines of Roman imperialism and Austro-Hungarian disintegration. It is to an understanding of the nature of the three fundamental elements of European federalism -- harmonization, subsidiarity and cultural solicitude -- within this context that I turn to next.
The great sport of the European twenty-first century will be the contests to determine whether the modern federal republic of Europe will follow the path of Austria-Hungary, Rome, or carve a different path. The relationship of citizen, Member State, and Community is complex, not always happy or harmonious -- and usually tentative. Perhaps that is why commentators find refuge within the less tangible world of international law when describing the moorings of the European Union. This is ironic in light of the generation long crusade of the ECJ to convince us that the better mooring might be the Enlightenment social contract of the transfer of limited sovereignty to the American federal government. Harmonization is "good," to the extent it can be characterized as a process realized through the creation of unitary enlightened norms. Harmonization is even "better" when it can be used to painlessly bind Europe. Europe has been striving for a unified normative structure within which to shape it politics.