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I have attempted to provide a perspective which overcomes the blindness of European constitutional theory to the complex web of relationships which shape and reshape political Europe. That blindness, of course, is merely another manifestation of the tendency of Western thought to sychophantically gravitate to centers of power. In a sense, theory is the ultimate sycophant. People study, they theorize about that from which power appears to flow, or from which it ought to flow. Today power flows, or ought to flow, from the Institutions of the Community. Everything else is darkened. Theory treats nation-state and sub-national populations as those objects which impede the orderly flow of power from the Institutions of the Community, or which must, in some manner ingest, and digest this power. Power begets power. Dassonville makes perfect sense, Keck is aberrational. (Procureur du Roi v. Benoit & Dassonville, Case 8/74, [1974] ECR 837, [1974] CMLR 436; Crim. Proceedings Against B. Keck & D. Mithouard, Case C-267 & 268/91, [1993] ECR I-6097, [1995] 1 CMLR 101).
Such theorizing is also a creature of our longing for permanent equilibrium. This notion is better understood in the West by the terms Eden or Death or Paradise. Most theory is static. Borrowing, perhaps consciously and unconsciously, from the form and theatre of the Old and New Covenants, theory attempts to promote comprehensive, if two dimensional, fully informed, immutable, explanatory and normative structures. Worse yet, theory, is usually bound up in philosophical Messianism. European constitutionalism is no exception. Consequently, such theory posits process, but not movement. In line with its Messianic underpinnings, this process is little more than a relentless progressivism ultimately reaching some state of perfection. Marxists provide a wonderful example of the crippling nature of that sort of theorizing.
The Community fits easily within European traditions of statecraft. At the same time, this emerging federation contains a great potential for overcoming the traditional limitations of European supra-national political entities. That potential is best realized if the structure of the Community is treated as a moving target composed of periodic equilibrium between three contradictory impulses -- the assimilative impulse of harmonization, the political impulse of the nation-state, and the ethnic impulse of sub-national cultural groups. Stability for any European federation must be gauged by its tolerance of movement. Movement is sparked by the recognition that substantial segments of the Community no longer believe the Community is representing their interests. Movement is evidenced by wholesale violation of norms. After all, as we come to understand, "if a Court is forced to condone the wholesale violation of a norm, that norm can no longer be termed law." (Cappelleti, Seccombe and Weiler, 1986, Vol. 1, Bk. 1, at 38). The subsequent readjustment of norms, through Treaty or ECJ interpretation, inevitably results in the perpetuation of a successful federal system.
Reduced to a simple simile, the relationship between harmonization, national and cultural solicitude is quite similar to the relationship between the Communities and the Member States in connection with Community Directives. Directives are commands from the highest level of the federation to its constituent parts. They impose an "obligation of result" yet give the constituent governments substantial discretion as to the form and manner of implementation. However, this discretion is limited by (i) the guidelines gleaned from the directive itself, (ii) the requirement that the result ensure that the directive is fully effective in accordance with it objectives, and (iii) the obligation to choose the most appropriate form and method of implementation in the context of the national system in which this must be done. (Curtin, 1990, 715-716). Harmonization or assimilation of basic norms of the general substantive principles of Community law has become the first principle, the ultimate directive, of European law. Difference will be celebrated as long as it conforms to the foundational norms of the Communities. One can be different, but only within the bonds set by the Community. The imperative of equality may command the creation of a norm of equality between men and women. The nationalist affection subsumed under the rubric subsidiarity may devolve the details of that norm to the nation state, even if the result is to prevent the federal body from constructing implementing principles in conformity with its vision of the norm. Yet cultural deference may immunize particular sub-national groups from conforming either to the general norm or its particular manifestation as state policy.
Europe ought to reconcile itself to constant socio-political flux. Political and legal theory must adjust to a reality where flux is the norm, punctuated by brief periods of stasis. The parameters of that flux are dictated by the relationships between the three "communities" -- harmonization, subsidiarity and cultural solicitude -- which by nature operate simultaneously and at cross purposes at all political levels of the federation. Europe yearns for some sort of eternal trans-national order, yet fears both trans-national order and eternity as well. The nations of Europe traditionally sought to provide such trans-cultural normative structures for their populations within their borders. But these nations have also been supra-tribal collections of different "ethnic" nations, all of which have long memories, and many of which collectively appear to find the oppressive hand of hegemony in national norm making. Sub-national groups, in turn, will resist national hegemony by affirming the power of the supra-national entity to dictate norms. Where this will end nobody knows, but while the game continues, a stable federal Europe is possible.