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Lastly, why am I opposed to European statehood? I have not set out to make the case against statehood--which is, really, too complex a subject to be treated by inklings and headlines. Based on my writings, Mancini has tried to explain what motivates me in several places in his essay. Egoistically, I prefer, of course, the way I explain the potential for abuse rather than the way Mancini represents it, but there is little point in repeating that which has already been repeated too much. [94] In a central passage, Mancini critiques `[Weiler's] assumption that a statal Europe would have the same potential of boundary abuse as the nation states of old.' `Why on earth' continues Mancini with verve `the same potential if the only possible basis for a statal Europe would be a demos relying merely on the bond of civic loyalty?'[95]
I was, of course, critiquing a view which envisaged a Statal Europe on the model of a European Nation-State. But even with a civic loyalty oriented demos I would fear the external and internal boundary abuse. Not the same, perhaps, but very similar.
For Mancini the fact that demos would be value oriented and bound by civic loyalty would prevent the abuses I speak of. This is puzzling. Mancini brings the example of India and S. Africa effectively to prove the viability of a multi-cultural, multi-lingual, multi-national demos. These two countries, and one could site others may, indeed, be good examples of the viability of a demos comprising more than one "national" group understood in the organic sense. But surely, those examples do not demonstrate that those states are not prone to the multiple abuses of the organic nation state? Both in relation to internal and external boundary abuse, I doubt if we could look to India or any other such State as having avoided the dangers I speak of. These dangers are inherent in statehood and that is why the Community has such a civilisatory potential.
My opposition goes beyond that. Generally speaking, I am concerned that the boundary between Europe and non-Europe, between a European "us" and a non-European "them" is plenty deep and does not need a further deepening, which a European State would surely bring about. I am, too, and have been for a long time, concerned by the aggregation of power in the Community which is partly the result of a veritable destruction of meaningful, and judicially controlled, limits on the legislative and other powers of the European Community. The European Court of Justice, I have charged for many years, has been particularly ineffective in patrolling the jurisdictional boundaries between Community and Member State adopting a policy of `Active Passivism.' A prominent European judge, writing before he was elevated to the bench, has argued with cogency that there `...simply is no nucleus of sovereignty that the Member States can invoke, as such, against the Community.[96]` A European State would aggravate this situation considerably.
Maybe my hostility is a matter of temperament. Being conservative and old-fashioned, I prefer the banal status quo of a Supranational Community to the bold new world of another State.
[94]Cf, for example, Weiler, `Demos...,' loc cit, n 11, especially 248 et seq.
[95](§IV emphasis in the original.)
[96]Lenaerts, `Constitutionalism and the many faces of Federalism' (1990) 38 A. J.Com.L 205 at 220. The Court, too, has modified its rhetoric: In its more recent Opinion 1/91 it refers to the Member States as having limited their sovereign rights `... in ever wider fields.' Opinion 1/91, [1991] ECR 6079, Recital 21.