Lines of Institutional Development
in the European Union
Daniel J. Elazar
1. With the adoption of the Maastrict Treaty and the transformation of the European Community to the European Union as of 1 January 1994, it may be said that the EU has moved from being a functionalist community to a confederation.
2. This puts it firmly within the realm of federalism, the larger genus of which there are several species, particularly federation, the best known during the modern epoch, and confederation, which is reemerging in the post-modern epoch. There are other species as well.
3. The EU, as a confederation, has become one of the advance guard in the worldwide paradigm shift from statism to federalism.
4. Indeed, the European Union is the new model of post-modern confederation in an age when confederal arrangements have reemerged on a major scale. It not only must work out the details of such and arrangement for itself but will serve as a model for other confederations and confederal arrangements just as the United States, which invented modern federation in 1787, subsequently had to work out its model for itself and also served as a model for federations throughout the world.
5. The importance of this paradigm shift can hardly be overemphasized. From 1648 until now the world has been working within the statist paradigm formally established by the Treaty of Westphalia. That paradigm envisioned a world of independent, politically sovereign, homogenous nation-states, each self-contained and homogeneous; the power in each centralized and in the hands of one sovereign (however defined). These states were expected to relate one to another in the international system following this model, that is to say, to be fully independent and self sufficient. Even international treaties did not limit any of the adhering states' aforementioned characteristics since they were voluntary, unenforceable agreements between states.
The paradigm failed. While a worldwide system of states did emerge, the vast majority achieved neither self-sufficiency nor homogeneity. Moreover, in the international arena, wars between states became increasingly catastrophic.
After World War II the world's leaders recognized that this situation had worsened to a point where something had to be done about it. Slowly they began to build a set of practices that led, within a generation, to the emergence of a new paradigm. That paradigm is a federal one that does not expect states to have full political sovereignty but rather to be interdependent, not to be homogeneous but instead pluralistic or diverse. The world even began -- very slowly -- to realize the limits of centralization. The new paradigm emphasized the combination of self-rule and shared rule. It involved massive decolonization, on one hand, and new constitutionalized linkages between existing states, on the other.
6. The European Union is a major example of this new paradigm and how it has developed. Prior to the modern epoch there were confederations and confederal arrangements in the world that rested on the medieval paradigm that also provided for some combination of self-rule and shared rule but on the different premises of an overarching Christendom and an internal pluralism of states. The coming of the modern epoch made all of these arrangements disappear, either to become consolidated states or to break up into new states.
Whereas before the modern epoch confederation had been considered the only true federalism, after 1787 federation came to be considered the only true federalism because it was the only form of federalism that seemed to solve the dilemmas posed by this modern statist paradigm. It combined unity and diversity, it shifted the question of sovereignty away from the center by vesting it in the people, and made all governments into "authorities" of the people, having only delegated powers. Yet from an external perspective federations appeared as single states in the international arena. For moderns, confederal arrangements either were deemed inadequate, atavistic, or unaesthetic, or all of the above.
7. Now that we are well into the second generation of the post-modern epoch, fifty years after World War II, we can easily recognize the difference between the species of federalism and federalism itself as a genus, to see that in the same way that many different peoples will live side by side in the new world, there will also be many different forms of federalism, as indicated in the attached table.
8. One of the other reasons for the demise of the statist paradigm has been the advance of democracy, especially in the form of liberal democratic republicanism. The modern epoch was an age of revolutions and one of the major things that humanity has learned from those revolutions, from both the successful ones and those that failed, is that proper constitutional and institutional design is at the heart of democracy, along with a proper political culture to inform the constitutions and institutions designed. Not only that, but empowering the people through their representatives and at times more directly to participate in constitutional and institutional design has become a necessary component to reinforce democracy and to make its institutions work. While this is true not only of federal systems and arrangements, in fact it is a major dimension of the federalist paradigm which rests on the shifting of sovereignty to the people and making all government merely the agents of the people.
9. The model for this kind of polity is the matrix in which there are different arenas, neither higher nor lower but larger and smaller, each of which is framed by its own governmental institutions rather than ruled by them. This is the case in the earlier statist model which is essentially hierarchical, even where it has been modified over time. In the original statist model, the sovereign was originally a monarch who was perched on top of a power pyramid. As the state was democratized, the monarch had to share his other powers in institutionalized ways through constitutional arrangements that often began as charters which the king handed down and only later evolved into more democratic instruments. The power pyramid suited the statist model because it easily reified the state, first in the person of the monarch and later, perse.
The only alternative to it was the center-periphery model whereby a power elite came to control the center of the state and ruled its peripheries. Democratization there involved introducing more direct linkages between the center and the periphery, but the center remained the center.
The matrix model represents the concretization of the paradigm shift, replacing "higher" and "lower" with smaller and larger arenas whose size does not suggest the degree of their importance but rather their appropriateness for different tasks. Governments transformed into framing institutions cannot be reified but can be changed through popular action. Moreover, since all are authorities-as-agents of the people, none can claim that they are sovereign over others, whether people or other governments.
10. Within the matrix model there are both similarities and differences in the design of federations and confederations. These are best expressed by the differential weighing of cells within the model. In a federation, the largest arena carries the heavier weight, while the basic constituent arenas carry a weight of their own and a permanent stations like that of the largest arena. Within those arenas, there are others that can be redesigned according to need. In a confederation the largest weight is with the basic constituent arenas that constitutionally and practically are the fulcrum of the whole model.
11. Normally, federations are designed on a tripartite basis -- the classic legislative, executive, judicial division of powers -- and on a tri-arena basis -- federal, state, and local. New-style confederations, on the other hand, are more likely to be based upon a quadripartite and quadra-arena structure. The EU is a good example. The Council of Ministers has the primary legislative function, the Commission the primary executive function, and the Constitutional Court the primary judicial function, but there also is a Parliament which has a consultative-advisory function.
With regard to arenas, there is the state arena consisting of the national states that are members of the EU. The EU constitutes another arena that embraces those states. Within those states are the federated states/regional arenas -- the lander of Germany, the federated regions of Belgium, the autonomous communities of Spain, the four countries of Great Britain, etc., and within them are the local arenas. The national state arenas are the least flexible, the EU arena more so because new members can be added (or in theory members can secede), the federated states/regional arena has about the same degree of rigidity and flexibility as the EU, while the greatest flexibility exists in the local arenas.
The governance of the EU is predominantly collegial, rather than single-headed or parliamentary, that is to say, in the hands of small groups of individuals with equal standing because of whom they represent. This has advantages and disadvantages, but may very well be one of the hallmarks of confederations and confederal arrangements. As a result, institutional functions differ between federations and confederations as they do between confederations and modern-style states.
12. The relationship between these various arenas in the EU has been described as a relationship of subsidiarity. Subsidiarity is an idea derived from a hierarchical model. It would be more in keeping with the evolving personality of the EU to use the idea of noncentralization in place of subsidiarity to describe those relationships. Noncentralization has the quality of reflecting a reality in which there is no single center, nor even a necessary limit on the number of centers that share in rule. It avoids the elements of hierarchical thinking implicating the idea of subsidiarity which was developed in a hierarchical system (the Catholic Church) and is designed to modify hierarchies rather than organize pluralistic models.
13. At this particular moment the problems of the EU do not so much require new institutional design as the working out of the functions of older established institutions within the new constitutional framework. This should be done most particularly in connection with the issues of noncentralization and collegial government, with emphasis not only on the relationships between the member states and the EU but also on the federated states/regions so as not to transform the former willy-nilly, into larger versions of the latter.
There are still too many vestiges of statist hierarchy embedded in European political culture and, consequently, political thought. On one hand, the relationship between the member states and the EU is portrayed as a matter of subsidiarity, which is not the way at least a goodly number of the member states perceive it (they do not see themselves as having built the EU into the apex of a new pyramid in which they are merely an intermediate level). On the other, there also is the tendency is to subordinate the federated states within the member states by transforming them into mere "regions," that is to say, into administrative organizations of the central government for certain purposes, when in fact, in those member states that are federal or nearly so, the federated states have considerably greater powers in a non-hierarchical framework.
All of this should be done by recognizing that the EU is a confederation, not a federation, and that it is striving to be a better confederation in the future, not to be transformed into a federation. By firmly establishing this political principle and the practices to make it work constitutionally, it is possible to take great steps forward while at the same time preserving the spirit of the EU. In the matter of the "Europe of regions," the EU has an interest in fostering the regions as an additional check and balance within the EU and as a means for the EU administration to reach into every corner of the community, but it must do so in such a way that the federated states are enhanced and not diminished. In all of these, the constitutional theory of confederation and the political theory of noncentralization can prove very helpful indeed.
