The European Community:
Between State Sovereignty and Subsidiarity
Or
Hierarchy Versus Colegiality in the
Governance of the European Community
Daniel J. Elazar
1992 is both the anniversary of a momentous date in world historyand is likely to be a momentous date in its own right. Five hundred years after Columbus effectively discovered America and opened the Age of Exploration which led to the settlement of new worlds in the western and southern hemispheres, an act which
transformed the globe, the countries of Western and Southern Europe are about to take a momentous step forward toward federal unification. The European Community is a centrifugal force in European history which has emerged after 500 years of centripetal pulls that developed as a result of Europe's great frontier and most particularly its colonialist expression.
For 500 years, Europe pursued the twin courses of colonization overseas and centralized state-building at home. The two went hand-in-hand. The rejection of medieval or any other form of pluralism or power-sharing on behalf of the centralized state, hierarchical or parliamentary, was paralleled by the acquisition of colonies overseas by those new states as part of their muscle-flexing. World War II wrote finis to both of those drives, initiating an era of decolonization abroad and federal integration at home for the states of first western and then southern Europe. Today as the twelve community members draw closer together, they are separating themselves further from
their ex-colonies and further decentralizing within their own
territories. Thus the demetropolitanization of Europe is
accompanied by a rethinking of the European state system.
Together they are part of the formation of a new worldwide matrix
of regional communities and polities which will be increasingly
federal in character.
For Europe, the modern epoch, from the mid-seventeenth to the
mid-twentieth centuries, featured, among other things, a struggle
between two approaches to nation-building, one, resting on a
combination of medieval corporatism and American revolutionary
ideas, sought national integration on a federal basis -- in
Germany, in the Austro-Hungarian Empire, in Italy, in
Switzerland, in the Low Countries, in Scandinavia, and to a
lesser extent in Spain. Opposing that approach was the French
ideal of the centralized state which gloried in the location of
sovereignty in one, central point, whether monarchic or
republican. Portugal and all the other states except Switzerland,
and to a lesser extent Germany, followed the French lead, either
consolidating into a single centralized state or dividing into a
number of smaller centralized states.
The history of Europe has been written as if state-building of
the latter kind was inevitable. In fact there was a struggle,
philosophically, ideologically, and practically in almost every
case.
The rise of fascism and Nazism brought about the collapse of the
modern epoch in Europe's Gotterdammerung which affected the whole
world. The postwar world brought with it the opening of the
postmodern epoch which in Western Europe featured a turn in the
direction of federal solutions. The European Community, whose
first tentative steps took the form of treaties between sovereign
states, slowly began to evolve into a confederation, in the
process reviving the possibilities of confederal solutions as
realistic ones.
By now it is clear that federalism has resurfaced as a
significant political force in the world just as it did in the
transition from the late medieval to the modern era which took
place from the sixteenth to the eighteenth century.
Federalism has resurfaced because it serves well the principle
that there are no simple majorities or minorities but that all
majorities are compounded of congeries of groups, and the
corollary principle of minority rights, which not only protects
the possibility for minorities to preserve themselves, but forces
majorities to be compound rather than artificially simple.
Furthermore, it serves those principles by emphasizing the
consensual basis of the polity and the importance of liberty in
the constitution and maintenance of democratic republics. BOTH
principles are especially important in a world increasingly
complex and interdependent, where people and peoples must live
together whether they like it or not and even aspire to do so
democratically. Hence it is not surprising that peoples and
states throughout the world are looking to federal solutions to
the problems of political integration within a democratic
framework.
Federalism and the Origins of the Polity
Since its beginnings, political science has identified three
basic ways in which polities come into existence: conquest
(force, in the words of Federalist No. 1), organic development
(for the Federalist, accident), and covenant (choice). These
questions or origins are not abstract; the mode of founding of a
polity does much to determine the framework for its subsequent
political life.
Conquest can be understood to include not only its most direct
manifestation, a conqueror gaining control of a land or a people,
but also such subsidiary ways as a revolutionary conquest of an
existing state, a coup d'etat, or even an entrepreneur conquering
a market and organizing his control through corporate means.
Conquest tends to produce hierarchically organized regimes rules
in a authoritarian manner; power pyramids with the conqueror on
top, his agents in the middle, and the people underneath the
entire structure. The original expression of this kind of polity
was the Pharaonic state of ancient Egypt. It was hardly an
accident that those rulers who brought the Pharaonic state to its
fullest development had the pyramids built as their tombs.
Although the Pharaonic model has been judged illegitimate in
western society, modern totalitarian theories, particularly
fascism and nazism, represent an attempt to give it a certain
theoretical legitimacy.
Organic evolution involves the development of political life from
its beginnings in families, tribes, and villages to larger
polities in such a way that institutions, constitutional
relationships, and power alignments emerge in response to the
interaction between past precedent and changing circumstances,
with a minimum of deliberate constitutional choice. The end
result tends to be a polity with a single center of power
organized in one of several ways. Classic Greek political
thought emphasized the organic evolution of the polity and
rejected any other means of polity-building as deficient or
improper. The organic model is closely related to the concept of
natural law in the political order.
The organic model has proved most attractive to political
philosophers precisely because at its best, it seems to reflect
the natural order of things. Thus it has received the most
intellectual and academic attention. However, just as conquest
tends to produce hierarchically organized regimes ruled in an
authoritarian manner, organic evolution tends to produce
oligarchic regimes which at their best, have an aristocratic
flavor, and at their worst are simply the rule of the many by the
few. In the first, the goal is to control the top of the
pyramid, in the second the goal is to control the center of
power.
Covenantal foundings emphasize the deliberate coming together of
humans as equals to establish bodies politic in such a way that
all reaffirm their fundamental equality and retain their basic
rights. Even the Hobbesian covenant -- and he specifically uses
that term -- which establishes a polity in which power is vested
in a single sovereign, maintains this fundamental equality
although, in practice, it would not be able to coexist with the
system of rule that Hobbes requires. Polities whose origins are
covenantal reflect the exercise of constitutional choice and
broad-based participation in constitutional design. Polities
founded by covenant are essentially federal in character, in the
original meaning of the term -- whether they are federal in
structure or not. That is to say; each polity is a matrix
compounded of equal confederates who come together freely and
retain their respective integrities even as they are bound in a
common whole. Such polities are republican by definition and
power within them must be diffused among many centers or the
various cells within the matrix.
As the European Community moves further into the postmodern
epoch, it is confronted more directly with echoes of the European
past. It is now commonplace to recognize the emerging federal
character of the European Community. Already a loose
confederation, it is likely to become an even stronger one after
1992.
Confederation was the only form of federalism found in premodern
Europe. Many of the early modern efforts at federal solutions in
Europe rested on the attempt to modernize earlier confederal
arrangements. None succeeded. Confederal principles could not be
made compatible with the drive for centralized statehood. (The
American invention of modern federation, which created the
illusion of national statehood became the only successful modern
vehicle for expressing federal principles.)
The founders of the European Community developed a new-style
confederation, avoiding the problematics of establishing a
single, overarching general government in favor of a number of
single and multi-purpose authorities serving its member states.
These are gradually linking them together through common
institutions, emphasizing administrative and judicial
institutions with clearly limited spheres of competence over more
comprehensive legislative ones. The more grandiose and
comprehensive idea of a United States of Europe was set aside --
as the Americans would say, placed on the back burner -- in favor
of a more original invention designed to fit European realities.
A decade ago most Europeans were bemoaning the imminent demise of
the European community. They were waiting for the first member
state to pull out. A decade later, Europeans are discussing,
properly, problems of over centralization, of building a single
state, and of the state model for Europe.
There are several paradoxes to be considered in reviewing this
change. The first one is the degree to which the European
Community was essentially built, both in its positive and
negative aspects, by Frenchmen. The movement for European unity
began in Catholic Europe among the Resistance leaders in Italy
and France. Its great proponents and architects were Catholics,
including Robert Schumann, Jean Monet and the great Catholic
chancellor of postwar Germany, Konrad Adenauer. It a sense it is
ironic to see this Catholic turn toward federalism. For France,
it is the triumph, even the revenge, of that strand of French
political thought that runs from Montesquieu to Tocqueville and
Proudhoun to Aron and Marc to Servan-Schreiver over French
Jacobin and hierarchical centralism. In a sense, it is the
victory of the French federalist tradition over French Jacobin
tradition. Yet in the end it may be Jacobinism that wins out in
a united Europe.
This is a very important aspect of the struggle for the European
Community because the sense of a philosophy of Europe is being
formulated without being 'formulated'. It is bubbling up from
the process. The nature of that philosophy needs to be expose,
in the best sense: it needs to be made visible, made
understandable, so that it can be tested as to whether it is an
appropriate philosophy or not.
A second striking fact is that the European community is the
federalism of the Catholics, in the cultural more than the
religious sense. In the past federalism has done best in the
continent's Protestant countries, especially those influenced by
Reformed Protestantism, often known as Calvinism. Perhaps
ironically, the new European Community is essentially a product
of Catholic Europe. Seven of its members are Catholic countries
in the sense that well over 90 percent of their citizens are
Catholics. Two are almost evenly divided between Catholics and
Protestants and in both the Catholics have played the leading
roles in the development of the EC, Greece is Greek Orthodox,
leaving only two -- Great Britain and Denmark -- as Protestant
countries, one predominantly Anglo-Catholic in its background and
the other overwhelmingly Lutheran. Therefore the philosophic
struggles of the Community come out of the Catholic historic
experience.
A case in point is the new-found popularity of the term
"subsidiarity" in the European Community's lexicon. This term,
derived from the system of governance of the Catholic Church,
reflects efforts within the Church to modify the effects of a
totally hierarchical pyramid radiating from the pope downward by
providing that, in certain matters, it is the obligation of the
higher levels to allow lower levels to take the lead. The
Catholic church is the oldest existing power pyramid in the
western world. For 1500 years or so it has been a power pyramid
which ha had to accommodate itself to the realities of a more
complex world than mere pyramids alone can handle. Given the
Roman Catholic pyramid, subsidiarity is an advance. For the
European Community it would be a retreat, a movement toward such
great centralization that the EC would become no more than a
superstate capable of stamping out all vestiges of liberty
wherever it was so inclined. Indeed, for those who come out of
a different tradition, subsidiarity is a notion that implies a
prior concession to hierarchy that they are not willing to make.
Try to tell the Canadian provinces that their relationship to the
federal government in Ottowa is one of subsidiarity. Try to tell
this to the American states.
If anything, federalists have been struggling with such terms as
"non-centralization" and other ways to explain the multi-centered
charter of federal politics in which there is no hierarchy.
Therefore, however valuable subsidiarity maybe to moderate
hierarchies, the European Community has to take the difficult
step of breaking out of that philosophic tradition, toward which
it can gravitate so easily, so as not to think in those
hierarchical terms from the beginning.
Looking at the European Community of today, one is sometimes
uncertain as to whether its drive for unity is but a modified
version of the ancient Catholic dream of a united European
Christendom. That drive, so poorly achieved under the feudal and
autocratic Holy Roman Empire, is so much more likely to be
achieved fairly and justly under conditions of democracy. Are we
are seeing the triumph of those forces that advocated federalism
at the threshold of the development of modern Europe and which
lost to the modern nation-state? They are now coming into their
own after three catastrophic centuries of unceasing wars, the
result of that centralized state system which fostered bloody
interstate conflict for reasons of presumed "national interest."
But even here there is a paradox. What is this Catholic
federalism? It is a civil reformation of the Catholic countries,
let us say a breaking down of their hierarchies, by bringing them
together to be part of a larger structure, or is it the revival
of the old dream of a Catholic Europe; of a universal European
state within a secularized power pyramid?
This is a question worthy for us to examine and to address
directly in order to better understand where we are going.
There is a great deal of statism in the common academic discourse
of European public figures, scholars, and intellectuals. Hence,
it is easy to talk about the "state" as the starting point for
discussion of the future of the European Community because that
is the language that Europeans have known for so many centuries.
With that perspective, it is very difficult to avoid seeing the
European Community as a anomaly; something that has to be turned
into a state, even a decentralized state, as soon as possible.
Already, we see the massive intervention of the EC bureaucracy
into the affairs of member states in the name of regulation for
health, safety, and welfare. Already there are efforts to curb
the inevitably unrestricted appetite of the Eurocrats who, like
all bureaucracies, always find reasons to impose more regulations
and thereby to grow bigger and more powerful. Those who think
that subsidiarity is the means to resolve this problem are either
fooling themselves or have still not managed to emancipate
themselves from the hierarchical thinking of their
religio-political tradition.
Jacques Delors, the leading force for European unity in the
Community today has done wonders to popularize "subsidiarity." France's latest contribution to the Europeanist phalanx, he gives every indication of being a Jacobin in Montesqeuian clothing. Even his principal opponent, Margaret Thatcher, has used subsidiarity positively in her arguments against him. (Not surprising considering how centralist she was during her tenure as British prime minister.) The Economist claims that it was first used by Pope Pius XI in his 1931 encyclical "Queadragesimo Anno" (The Economist 9 December 1989, p.32). It also provides us with a definition of the term in Eurospeak and a description of its implications:
The church's aim was to define the principle
that decisions affecting people's lives should
be taken as far down the chain of command as
possible, ideally by individuals or in families.
In Eurospeak, Mr. Delors's adopted tongue,
subsidiarity means that the Community should
do only those things that member-states cannot
do better. The S word stands out in Delors report
on economic and monetary union, and in the pro-
posed social charter, prompting cynics to suggest
that the commission uses it most readily when
trying to increase its power.
Two other issues confronting the EC are co-operative federalism
and citizenship. Co-operative federalism which was imported from
the United States as an idea -- an idea with which I had some
connection in its spread in the U.S. more years ago than I care
to remember -- has become a theory; it is not. Co-operative
federalism is a technique. It is a mechanism that opens the
door to a proper theory. But it is no more than that and it
should not be elevated beyond what it is.
Co-operative federalism makes it possible for federalism to exist
in a highly interdependent world where, if we relied upon earlier
notions of federalism as the separation of governments, there
would be no function that would not be seized by the larger,
stronger, government in the course of time. Co-operative
federalism is valuable beyond that, since it gives us a vision of
human co-operation, which is a good thing, but always within a
framework within which real differences are recognized. For
example, I have argued that co-operative federalism existed in
the 19th century United States even when people talked in a
different language. It was a kind of federal relationship in
which the primary responsibilities for policy and action were in
the hands of the states. The federal government provided certain
supplementary assistance principally in the realm of
infrastructure and national policy and no more.
Co-operative federalism, when the term became popular in the
United States in the 1960's, became an excuse for federal
government coercion. It still seemed to involve all governments,
and did, but it represented a slogan, a phrase that the federal
government could employ against the states that did not want to
accept some federal policy prescription -- they were denounced as
not co-operating. Both kinds of intergovernmental relations fall
within the parameters of co-operative federalism. In the
1950's and early 1960's co-operative federalism really worked
with the roles of all arenas of government in balance. Even later, co-operative federalism prevented a constitutional shifting of powers to the federal government. Consequently, in the 1970's and the 1980's, the power could shift back, within the
co-operative framework, to the states -- as it has. Nevertheless, Europeans must understand that different forms of
behavior can exist within the framework of co-operative
federalism and plan for the desired one.
A word with regard to citizenship. In any federal system or
confederation, people have a kind of dual federalism. Many
confederations in the past were destroyed by conquest -- many of
the Greek leagues, for example, continued until they were
conquered by the Romans. To be destroyed by conquest is a
matter of the balance of power in international relations and is
not necessarily a reflection on the quality of internal
self-government. Other confederations that collapsed for
internal reason were those which did not recognize the dual
dimension of citizenship. Thus, even if they maintained the
basic premise of a confederation, namely that the general
overarching institutions work through the constituents, there
still must be some notion of dual citizenship. In a federation
that is certainly true. The dual citizenship may flow from
the smallest arenas through the intermediate to the largest arena
as in the Swiss federation/confederation -- which really is based
on triple citizenship, communal first, then cantonal and only
then federal.
In the European Community, citizenship is likely to flow from the
intermediate arenas in both directions. To safeguard its
federal/confederal character, it should not be established first
and foremost by the largest arena, nor ever singly by the largest
arena. There is a constitutional advantage to maintaining the
focus of dual citizenship. (I use the term "dual" to include
"multiple" as well.) Citizenship flowing from one of the smaller
arenas is simple a way to protect those arenas against the claims
which the largest arena inevitably will have that it is
protecting the rights of its citizens by intervening into the
smaller ones.
On the other hand, without the largest arena [e.g. the Community]
being able to protect the rights of its citizens, Europeans lose
some of the most important benefits of federal arrangements. I
am not trying to suggest that it is not a task for the EC or that
it is not an important role for the Community to play. But to
give citizenship as an exclusive power to the largest arena is to
weaken the other arenas. I think in a democracy, where
citizenship is a key, that would weaken them irreparable.
There are other issues to be discussed as well. One of them is
the issue of language. A second is the matter of foreign
affairs and defense. Until recently the European Community has
concentrated on internal and domestic questions, generally
ignoring foreign affairs and defense. At the very least, this
suggests that the American umbrella is still the critical factor
in European defense. This suggests that NATO is as much a part
of the European Community (while separate from it institutionally) as any of its other mechanisms. This will not
remain true forever, but each problem needs only to be confronted
at its time: there is no reason to advance the confrontation of
issues and problems before their time. Nevertheless, silences
are often as important as what is said and they should at least
be mentioned.
A proper federal framework involves non-centralization or
multiple centres of power. The model that the EC needs to have
before it is a matrix or a mosaic and not a power pyramid or a
centre-periphery model that is much beloved by many political
scientists and sociologists these days. Those other models
suggest that power is naturally concentrated and is only
deconcentrated by the good will of those at the top of the
pyramid or those in the centre of the circle.
This model has a marked effect on how Europeans conceptionalize
and conceive of the institutional framework that they are
building and the consequences of those conceptions. For example,
to the extent that there is a power pyramid, politics will be the
politics of a court; between those who seek to get close to the
rule or rulers on the top of the pyramid and who jockey for power
among themselves as members of that court to see who will
succeed. Under such conditions, the "lower levels," so to speak,
no matter how much power is formally decentralized, will remain
the lower levels and the most talented people will always strive
to get into that court and to become part of its politics.
Beyond that, the nature of power pyramids is that they end up
resting on the people underneath. That is hardly the model for a
democratic order for Europe or for anybody else.
It is well to recall that it was pharahonic Egypt that built
pyramids as ultimate monuments to its rulers. It was the best
possible symbol they could have selected for the power system
which they constructed.
Similar limitations apply to the centre-periphery model. There
the politics in the centre are the politics of the club; somewhat
more equal than the politics of a court, but still the closed
politics of a club. Those who are admitted to the club can
participate in its politics; those who are not are still at the
periphery. And while the club might be more open that the court,
not everybody can be admitted to the club. So it is also an
inappropriate model since what is passed to ar left to the
peripheries in such a model is always at the mercy of the members
of the club.
That model worked only when the member of the club spent most of
their time in the peripheries and then came to the centre once
in a while to do business. For example, in England before
industrialization the members of the club were the country
squires who came to London every so often to take care of their
common business and then went back home to sit as justices of the
peace in their local parishes. But that passed some time ago and
it is unlikely in the industrial age or even in post-industrial
age that such clubs will be like that in the future even less
they are built constitutionally to be that way as is the case
with the councils of ministers that lead the EC today.
So, the only appropriate model is a matrix or a mosaic in which
the largest arena is a framing institution, itself comprised of a
number of different arenas all constitutionally protected. The
existence of multiple arenas is the real test of a federal
organization and distribution of power. Moreover, we need not
only think about two or three arenas, quite the contrary.
Europe, appropriately, is made up of more than two or three
arenas', there must be a proper place for the constituent
states, lander, provinces, cantons, whatever they are called,
within the European Community framework. One of the most
important steps that can be taken is to have them assert their
place and active involvement in the European Community. They
should not wait to ask permission, but they must assert that
involvement as part of the overall restructuring of Europe which
is taking place. This becomes a possibility because federalism
breeds federalism. Once, a polity embarks on the course of
integration in the federal rather than in the hierarchical or the
centre-periphery mode, it is possible to extend the application
of the federal principle in many different ways and that of
course is the great possibility and the great hope.
I began my comments by talking about the fact that the European
Community is a civil or secular extension of Catholic Europe.
But in fact, sitting as we are here in Bruges -- in the heart of
Belguim and Flemish Belguim at that -- we have to be cognizant of
the fact that we are sitting on one of the great cultural fault
lines of Europe. The point where protestants and Catholics
divided; the point where the Germanic and Latin traditions met.
It is a cultural fault line which has always played a special
role in Europe.
In trying to study, as I have tried to do over the last number of
years, the expressions of the federal idea -- the covenant idea in its original form and the federal idea in its political form -- within the European political tradition, one comes back again and again to that cultural line. That line of development which goes from Switzerland, up the Rhine valley, through Belguim, the
Netherlands, across the North Sea and into Scotland, is the line
of where the covenant idea in theology and political philosophy,
and the federal idea in practice (whether it was called that or
not) has constantly bubbled forth and reasserted itself whenever
and wherever local populations have been allowed to express
themselves. Possibly the line continues even further southwards,
maybe it even extend into northern Italy, because it would be on
the same fault line. Although we do not entirely know the
reasons why this is so, one of the reasons clearly must be because where different cultural groups come together and where one can not conquer the other or suppress the other, they must ultimately make agreements with each other. And sooner or later, albeit it may take centuries, they acquire certain habits of negotiated cooperation. They get into the habit of giving up conquest and of trying instead to make their decisions and to organize their lives through peaceful arrangements.
It is no accident, that in our time, this cultural borderlands
has become the heartland of the European Community. Europe will
do well, to explore the history of this heartland and to utilize
that history and to utilize the peoples of the heartland to
the fullest to build the federal Europe of the future.
Europe should be moving into a glorious new age and it should be
an age of federalism. Unlike hierarchical structures, federal
structures do not constitute pyramids. In cybernetic terms, they
are organized in the form of matrices of self-governing cells
that combine self-rule with shared rule to gain the advantages of
joint action. Out of necessity, European unity was born within
such a matrix, if only because of the prior existence of the
individual member states with their strong traditions of
independence and self-rule.
In another irony, the fact of the existence of these
nation-states has enabled Europe to take a federalist start
toward unity. It would be a tragedy for Europe and for all
humanity if what the European Community was to borrow from its
member states was the statism which has served them so poorly for
the last several centuries and led to the catastrophic wars of
our own century.
Madisonian and Althusian Federalism
Modern federalism, invented by the United States, operates
essentially on a Madisonian model which, although itself derived
from a variety of sources, draws its conception of civil society
from Lockean individualism. Hence Madisonian federalism is based
on the idea that polities are comprised first and foremost of
individuals who combine themselves into peoples out of choice,
establishing political institutions in the process by means of
political covenants and constitutions. While the Madisonian
model has much to teach all those embarked on federal
experiments, particularly with regard to how a polity should be
modeled in the first place as a matrix of substantially
independent cells linked through a common communications network
rather than as a power pyramid or a polity with a power center
and periphery, it has its limits in addressing the European
experience.
The European federal experiment, on the other hand, is built upon
pre-existing states with strong identities which are, in turn,
compounded of primordial groups. Indeed, it is the persistence
of those primordial groups which contributed mightily to the
failure of the modern European state system. The modern state
system was to be centralized because each state was to be a
nation-state, a state of a single nation. Unfortunately for the
theory, the reality was such that the primordial groups refused
to disappear, often in the face of the most extraordinary
pressures directed against them by the state builders.
The collapse of the old state system has reawakened popular ties
to those groups throughout Europe. Hence, they too must be
considered in developing European federalism. Indeed, the
European Community has made it a point of considering many of
them, especially those located in what are known as the
peripheral regions of the community, in effect developing a de
facto alliance with them to balance the power of the member
states.
In sum, with all of Europe's new concern for the individual and
his or her rights, Europeans do not come to polity-building
culturally naked. Thus any successful political solution for
Europe needs to be built on a more complex model than that of the
United States. Such a model may indeed be available in the
federal theory of Johannes Althusius, the first great European
theorist of federalism who was one of those on the eve of the
modern epoch who tried to foster federal as distinct from statist
solutions on the Continent.
Althusius must be considered a figure located at the intersection
of the major trends of Western culture. One of the Protestant
Christian grand designers, he straddled the Reformation and the
opening of the modern epoch. Accordingly, he made an effort to
synthesize and somewhat secularize Reformed Protestant thought on
the ideal polity and to push it in concrete, practical
directions.
The road to modern democracy began with the Protestant
Reformation in the sixteenth century, particularly among those
exponents of Reformed Protestantism (later rather mistakenly
referred to as Calvinism) who developed a theology and politics
that set the Western world back on the road to popular
self-government, emphasizing liberty and equality. While the
original founders and spokesmen for Reformed Protestantism did
much political writing, their writing was either theological or
polemic in character. Only at the end of the first century of
the Reformation did a political philosopher emerge out of the
Reformed tradition who built a systematic political philosophy
out of the Reformed experience by synthesizing the political
experience of the Holy Roman Empire with the political ideas of
the covenant theology of Reformed Protestantism. That man,
Johannes Althusius, presented his political philosophy in a
classic work, Politica Methodice Digesta, first published in 1603
and revised in final form in 1614.
Althusius' Politics was the first book to present a comprehensive
theory of federal republicanism rooted in a covenantal view of
human society derived from, but not dependent on, a theological
system. It presented a theory of polity-building based on the
polity as a compound political association established by its
citizens through their primary associations on the basis of
consent rather than a reified state, imposed by a ruler or an
elite.
The Althusian model directly addresses the complexities of the
European situation, taking into consideration families and
primordial groups as well as formal political institutions,
corporations as well as territorial units. In his classic work
Politica Methodice Digesta, he methodically constructs a federal
system that is both territorial and consociational. Moreover it
is one that accommodates the European reality of four or five
arenas of territorial governance instead of two or three, the
accepted number in modern federations. Several of the EC member
states, indeed an increasing number, are themselves federations,
with three (or four) arenas of governance (Table 1-1). For them
the European community is a fourth (or a fifth).
Table 1-1
CONSTITUTIONAL POWER-SHARING IN EC MEMBER STATES
| Federations | Decentralized Unions | Autonomy / Federal Arrangements |
Unitary States |
Belgium
GFR
Spain | Denmark
Netherlands
UK | France
Italy
Portugal |
Ireland
Luxembourg
Greece |
Althusius had the misfortune of publishing his great work at the
very beginning of the seventeenth century, just at the time when
his compatriots were turning towards statism. In the ensuing
struggle over the direction of European state-building in the
seventeenth century, the Althusian view which called for building
of states on federal principles, as compound political
associations, lost to the view of Jean Bodin and the statists who
called for the establishment of reified centralized states where
all powers were lodged in a divinely-ordained king at the top of
the power pyramid or in a sovereign center. While Althusian
thought had its exponents until the latter part of the century,
after that it subsequently disappeared. It remained for the
Americans to invent modern federalism on the basis of modern
individualism and thus reintroduce the idea of the state as a
political association rather than a reified entity.
In the nineteenth century, one party of German thinkers seeking
the unification of Germany on federal principles and led by Otto
von Gierke, rediscovered Althusius. There, too, however,
Germany's movement toward reified statehood and finally
totalitarianism left Althusian ideas out in the cold.
Althusian ideas remained peripheral even to students of modern
federalism since modern federalism, was so strongly connected
with the principle of individualism that there was no need to
consider the Althusian effort to deal with the problems of
family, occupation, and community along with individual rights in
establishing political order. Only recently, as we have come to
see the limits of unrestrained individualism, both
philosophically and practically, have political scientists begun
to explore problems of liberty in relation to primordial groups
-- families, ethnic communities and the like. Here it was
discovered that Althusius had much to offer contemporary society.
Martin Buber was perhaps the first to suggest how Althusian ideas
could serve twentieth century man, in part basing his political
works on Althusius. At the very beginning of his classic study
of the Israeli kibbutz as a model for the reconstruction of
society along cooperative lines, Buber described the proper
social order as a consociatio consociationum, deliberately
selecting Johannes Althusius' formulation as the starting point
from which to develop his own realistic utopia.
Carl Friedrich, the great academic exponent of German liberalism,
revived academic interest in Althusius with his publication of
the Politics in its Latin version with an extensive introduction.
More recently, various scholars such as Frederick Carney (a
student of Friedrich's who translated part of the Politics into
English), Patrick Reilly and Thomas Heuglin have explored
Althusius' ideas. In his native Germany there has been a renewed
interest in Althusian ideas as a foundation for German federal
democracy. In Yugoslavia Althusian influence has been a powerful
counterweight to Communism as the basis for introducing a measure
of republican liberty.
In 1973, I interviewed Professor Jovan Djordjevic, the doyen of
Yugoslav political scientists, a close associate of Marshall
Tito, and author of the various Yugoslav and republic
constitutions during the first three decades of the present
Yugoslav regime. In our discussion, Professor Djordjevic
indicated how much the construction of that regime had been
influenced by Althusian ideas and models.
Somewhere between Buber's utopian vision and the effort to
concretize Althusian models in Yugoslavia is the theory of
consociationalism developed by Arend Lipjhart, Gerhard Lembruch,
and others. Borrowing that distinctively Althusian term, the
consociational theorists attempted to explain what is in effect a
non-territorial federal division of powers that constitutes a
democratic alternative to either Jacobin or majoritarian
democracy and to demonstrate how that model has been applied in
countries such as the Netherlands, Belgium, Switzerland, Austria
and Israel, among others. Studies of consociational democracy in
action have repeatedly demonstrated that consociational
arrangements work best and are longest-lived where they are
combined with territorial federalism, in other words where both
dimensions of the Althusian solution grand design are present.
There is some dispute among scholars regarding the relationship
between Althusius and federalism. Otto von Gierke, the first
scholar to try to restore Althusius to his rightful place in the
history of political thought, saw him as essentially a
medievalist, seeking to reconstruct medieval corporatism for a
post-medieval and changing time. Carl Friedrich, on the other
hand, the most important figure in the twentieth century
Althusian revival, viewed Althusius as the forerunner of modern
federalism. Today, Patrick Reilly and to some extent Thomas
Heuglin follow the Gierkian approach, while Frederick Carney and
this writer follow that of Friedrich.
As a student of federalism in all its forms and a federalist, I
would suggest that it is necessary to look to Althusius not only
in historical perspective as a transitional figure from medieval
corporatism to modern federalism, but as a source of ideas and
models for a post-modern federalism. Pre-modern federalism had a
strong tribal or corporatist foundation, one in which individuals
were inevitably defined as members of permanent, multi-
generational groups and whose rights and obligations derived
entirely or principally from group membership. Modern federalism
broke away from this model to emphasize polities built strictly
or principally on the basis of individuals and their rights,
allowing little or no space for recognition or legitimation of
intergenerational groups.
A post-modern federalism must reckon with one of the basic
principles of post-modern politics, namely that individuals are
to be secured in their individual rights, yet groups are also to
be recognized as real, legitimate, and requiring an appropriate
status. Althusius is the first, and one of the few political
philosophers who has attempted to provide for this synthesis.
Needless to say, his late-medieval thought cannot be transposed
whole into the post-modern epoch in the latter part of the
twentieth century. But in part because he wrote in a period of
epochal transition from the late-medieval to the modern epoch,
much of his system, its ideas, and even its terminology, may be
adaptable or at least form the basis for a post-modern
federalism.
Here we can only outline some of the salient points in Althusius'
thought.
1) The foundations of Althusius' political philosophy are
covenantal through and through. Pactum is the only basis for
legitimate political organization. More than that, Althusius
develops a covenantal-federal basis that is comprehensive. Not
only is the universal association constructed as a federation of
communities, but politics as such is federal through and through,
based as it is on union and communication (in the sense of
sharing) as expressed in the idea that its members are symbiotes.
Althusius' dual emphasis on federalism as a relationship and on
sharing as the basis of federal relationships has turned out to
be a basic axiom of federalism. While there can be different
forms of a federal relationship and sharing can be expressed in
different ways, federalism remains essentially a relationship and
sharing its guiding principle.
The polity, then, is a symbiotic association based upon symbiosis
and constituted by symbiotes.
2) Althusius deals with the problem of sovereignty, then becoming
the critical juridical problem for modern federalism, by vesting
it in the people as a whole. On one hand this is what makes the
good polity a res publica or commonwealth. On the other it also
makes it possible to be a consociatio-consociationum, a
universitas composed of collegia, since the people can delegate
the exercise of sovereign power to different bodies as they
please (according to their sovereign will).
The problem of indivisible sovereignty raised by Jean Bodin
became the rock upon which pre-modern confederation foundered.
The modern state system was based on the principle of indivisible
sovereignty which in an age of increasingly monolithic and
energetic states became a sin qua non for political existence.
Thus the medieval world of states based on shared sovereignty had
to give way. It was not until the American founders invented
modern federalism that a practical solution to this problem was
found enabling the development of modern federation as a form of
government. Althusius provided the theoretical basis for dealing
with the sovereignty question over 175 years earlier (no doubt
unbeknownst to them) and gave it the necessary philosophic
grounding.
Although Althusius himself does not develop a theory of
confederation per se, his particular kind of federal thinking in
which he sees his universal association as constituted by
comprehensive organic communities has clearly had something to
contribute to an emerging post-modern theory of confederation.
Althusius further understands political sovereignty as the
constituent power. This is at once a narrower, more republican
definition of sovereignty whose plenary character is harnessed as
the power to constitute government -- a power which is vested in
the organic body of the commonwealth, i.e., the people. Moreover,
once the people act, the sovereignty is located in the jus regni,
the fundamental right/law of the realm or the constitution.
This Althusian concept has important implications in contemporary
international law which is grappling with the problem of how to
mitigate the effects of the principle of absolute and undivided
sovereignty inherited from modern jurisprudence in an
increasingly interdependent world. Even where the principle is
not challenged, the practical exercise of absolute sovereignty is
not longer possible. There are an increasing number of
situations in which even the principle cannot be applied as it
was. One way out in such cases has been to vest sovereignty in
the constitutional document itself, that is to say, in what
Althusius would refer to as the jus regni. Vesting sovereignty in
a constitutional document is entirely consonant with a covenantal
federalism.
3) Althusius serves as a bridge between the biblical foundations
of Western civilization and modern political ideas and
institutions. As such he translates the biblical political
tradition into useful modern forms. In this he must be
contrasted with Spinoza who a few years later in his Theological
Political Tractate makes the case for a new modern political
science by presumably demonstrating that the biblical political
tradition applied only to ancient Israel and ceased to be
relevant once the Jews lost their state (unless and until the
Jews were restored). Althusius confronts the same problems of
modern politics without jettisoning or denying the biblical
foundations. In part this rendered him less useful during the
modern epoch when his unbending Calvinist emphasis on the
necessary links between religion, state and society, we
encounter the development of the modern secular state.
The Althusian version of the Calvinist model of the religiously
homogeneous polity is not likely to be revived in the post-modern
epoch. We are beginning to recover an old understanding that no
polity civil society can exist without some basis in transcendent
norms which obligate and bind the citizens and establish the
necessary basis for trust and communication. The connection
between the decalog and jus as both law and right, while hardly
original to Althusius, may offer possibilities for renewed
development in our times. Althusius adopts a conventional
understanding of the two tables of the decalog of his time,
namely that the first table addresses itself to piety and the
second to justice, both of which are necessary foundations for
civil society.
4) Very important in this connection is Althusius' development of
the concept of jus regni, which he derives explicitly from the
biblical mishpat hamelukhah (law of the kingdom), enunciated in I
Samuel 10, to serve as constitution of the universal association,
at one and the same time establishing the constitution as a civil
rather than a religious document, yet one which has its source in
or at least is in harmony with divine and natural law. While
contemporary political scientists emphasize the secular character
of modern constitutionalism, examination of most contemporary
constitutions reveals that they reflect the same combination of
claims, namely linkage to transcendent law, more often divine
than natural, yet human artifacts that are civil in character.
While in recent years we have made considerable advances in
developing an understanding of constitutional design, in doing so
we have neglected this linkage and its implications for right law
that Althusius calls to our attention.
5) While Althusius was clearly a product of his times and the
ideal state of his design is one which reflects the class and
reference group structure of sixteenth century German society, it
is significant that Althusius leaves open the possibility for
democracy as we know it, including female participation in public
life and office-holding, and a more classless and egalitarian
basis for participation generally. Since I do not have a
sufficient command of the Latin text to properly explore the
issue, I cannot say whether Althusius has an esoteric as well as
an exoteric teaching, but this suggests that there may be a
hidden dimension to be explored in the Politics and Althusian
thought generally. Nor is the federal aspect insignificant here.
Althusius suggests different forms and extents of participation
in the different arenas of government as one possible way to
extend participation in public life to groups heretofore
disenfranchised in the world that he knew.
A contemporary Althusian politics should address itself to the
same possibilities; for example, somewhat indirect democracy
for county institutions and republican or representative
government for what Althusius would have called provincial and
we would call state land or cantonal institutions, and for the
universal association or general government.
6) Althusius recognizes the modern distinction between public and
private realms, yet also preserves the connection between them.
In this respect, he, like the moderns who were to follow him,
breaks with classic nations of the all-embracing polis to
recognize the legitimacy of a sphere of private activity that is
constitutionally by right, thereby preventing totalitarianism.
Yet he recognizes the connection between the simple and private
dissociations of family and collegium and the mixed and public
associations of city, province and commonwealth. Indeed the
relationship between private and public spheres and associations
is a major concern of his as it is increasingly to those of us
who must reckon with the realities of the post-modern epoch in
which everything is tied into everything else.
One of the advantages of the modern epoch was that it was
possible to more sharply separate the public and private spheres
because the modern epoch was one in which increased distance
between them was possible. This is no longer the case as the new
communication requires more Althusian communication, that is to
say, as everything impinges upon everything else, more sharing is
necessary. Althusius' emphasis on the existence of both natural
and civil associations in the private sphere reflects his
emphasis on what we would call the natural right of association.
The family is a natural association based on two relationships:
conjugal and kinship. Since the nuclear family is a conjugal
relationship, even it is covenantal. Naturally the collegium or
civil association in both its secular and ecclesiastical forms is
covenantal.
Mixed and public associations are equally covenantal with the
city as a covenantal republic formed of a union of collegia, the
province a covenantal union of cities, and the commonwealth a
covenantal union of provinces (this is so even though Althusius
talks of the rights of the province as an arm of the commonwealth
and not simply a union of cities). Covenant for Althusius are
the ways in which symbiotes can initiate and maintain
associations. They are products of both necessity and volition.
7) Althusius' definition of politics as the effective ordering of
communication (of things, services and rights) offers us a
starting point for understanding political phenomena that speaks
to contemporary political science. This leads us to the second
half of Althusian thought: that dealing with statesmanship,
prudence and administration. It would be possible to say of the
second half of Althusian teaching that it is general to all of
politics and not specifically to federalism, except that this
would do violence to the first half of Althusian teaching which
sees all politics as federal politics. Nevertheless, an
examination of that dimension will await another occasion.
The EC and the Contemporary Federalist Revolution
What is happening in the European Community is part and parcel of
the federalist revolution sweeping the world. Today over 70
percent of the world's population lives in one way or another
under federal arrangements. A third live in formally federal
systems and approximately 40 percent in systems that have not
proclaimed themselves federal but which must use federal
arrangements to accommodate internal divisions.
Look at the world's great powers. Federalism is vital in the
United States political system. There could be no United States
of America without federalism. For much of this century this
truth has been ignored by those who sought to foster class
warfare and a remaking of American civil society as a welfare
state, but today it has become widely recognized again as the
states have taken the governmental initiative within the U.S.A.
Moreover, for the first time American federalism is no longer
tainted with America's original sin of racism, manifested
progressively in slavery, racial segregation, and discrimination,
which while not a product of federalism, used the mechanisms of
federalism for protection for nearly two centuries.
The Union of Soviet Socialist Republics is now being forced to
discover the meaning and possibilities of federalism. For many
years even those who counted it among the formally federal
systems understood full well that Soviet federalism was almost
without meaning, that is was a Leninist device to maintain a
multinational empire under Communist rule. Its meaning was
confined to allowing the non-Russian nationalities of the USSR to
preserve something of their identity and heritage. The situation
is now changing day by day with the new Communist leadership
hoping that they can introduce real federalism fast enough to
outpace the secessionist tendencies of the non-Russian
nationalities. It is not unfair to say that the only hope for
survival of the USSR lies in the introduction of
authentic federalism.
India, the largest democracy in terms of population, is a soundly
established federal system in which strong centrifugal and
centripetal forces compete with each other constantly. China, on
the other hand, has tried to use federal arrangements as window
dressing to hold its peripheral regions in place in the Communist
mode. Several years ago, it began to seriously consider
decentralization of administration throughout the country.
Today, of course, all of that is in doubt.
Federalism has survived the crises of the 1960s and 1970s in
both Australia and Canada. In Australia, once again it has come
to be valued and in Canada the Quebec crisis has more or less
been resolved by federalist means. In both cases a new respect
for the federal principle as a practical means of governing has
developed.
Federalism has become more important than it ever was in Latin
America, even if it has always survived there with mixed results.
Democratization in Argentina and Brazil has been accompanied by a
strengthening of federalist institutions, especially in Brazil
where the new constitution attempts to increase the power of the
states vis-a-vis the federal government in the name of democracy.
Venezuela has moved to strengthen its states through the direct
election of the state governors, and in Mexico the political
opposition finds the states the principal vehicle for securing
any share of political power.
In Europe, the former totalitarian systems of the right such
as Germany and Austria, Spain and Italy have found their way back
to democracy through federalism, in full or in part. Germany and
Austria early on became fully functioning federal systems. Spain
has become a very successful federal system in the past ten
years, and Italian regionalism has moved in that direction,
especially with the decline of the Communist threat in that
country.
At the other end of the spectrum, the microstates of the
Caribbean, while rejecting federation -- islands, after all, are
insular by definition -- are in the process of developing a
confederal framework that will provide them with the common
institutions they require to serve their needs.
In Asia, Japan, which adopted a system of constitutional
decentralization under postwar American occupation, is now
considering extending that system further, while ASEAN, presently
a league, may be on its way to becoming more of a confederation
in the future.
Only in Africa is the future of federalism unclear. Nigeria
remains faithful to the present federal principle in words but
seems to be unable to avoid military government indeed.
Senagambia is the only confederation on the continent and there
is some question as to whether it is working. All other attempts
at federalism in black Africa or North Africa failed early on. On
the other hand, federal solutions for South Africa are widely
discussed and federalism will probably be part of any resolution
of the conflict there.
As the colonial system has disintegrated, the small territories
that remained linked to former colonial powers have been
transformed into self-governing polities through asymetrical
federal arrangements. These take two forms: federacies, in which
the constitutional arrangement between the federate power and the
federate state can only be altered by mutual agreement as in the
case of the United States and Puerto Rico, or associated state
arrangements where the constitutional arrangement can be changed
by one or the other unilaterally under specified conditions, as
in the case of the United States and the republics of the
Marshall Islands.
Significantly, once a polity has embarked on a federal course, it
can extend the operation of federal principles in different
directions with relative ease. The United States, for example,
began as a two-arena federation involving the federal government
and the states. Even at the time of union, some states
understood themselves to be unions or federations of towns and
the idea of constitutionalized local home rule spread throughout
the United States in the nineteenth century. In the twentieth
century, faced with the problem of decolonization of its island
territories, the United States developed what it calls
commonwealth status for Puerto Rico and the Northern Marianas,
what we refer to as federacy, and adopted associated state
arrangements for the Marshall Islands republics. After the
revival of native American demands for greater governmental
powers for their tribes, the United States began to treat the
surviving tribes as "domestic dependent nations," a felicitous
phrase coined by Chief Justice John Marshall in 1835 but honored
in the breech for 100 years thereafter.
As I indicated at the outset, the same process is occurring in
Western Europe with federalization going on simultaneously in
several directions in the European Community and with regard to
overseas territories attached to the Community's member states.
Capping all of this is the growing merger of the world's two
state systems: the international system of politically sovereign
states and the system of federated or constituent states. This
interaction has progressed most fully in the economic realm where
the constituent states of federal systems including those of the
older federations, the United States, Canada, and Australia, now
are actively engaged in economic development activities in the
international market. This interaction is slowly being extended
in other spheres as well, diminishing the differences between the
two kinds of states. As the international system further limits
the sovereignty of even the nominally sovereign states and
requires the involvement of the federated states to achieve any
semblance of international order, the differences between the two
are being progressively diminished.
Federalism and Democracy
Federalism, like constitutionalism, is a rich and complex thing,
a matter of formal constitutional divisions, appropriate
institutions, patterns of political behavior, and, ultimately, of
political culture. Moreover, federal democracy offers a complete
and comprehensive theory of democracy which stands in sharp
contrast to the theories of democracy regnant in Europe until now
-- Jacobin democracy and parliamentary democracy on the
Westminster model -- not to speak of that monstrous development
referred to as totalitarian democracy.
Democracy addresses the great questions of sovereignty and powers
(competences), the relationships between power and law or right,
and the great issues of centralization and decentralization. It
does so by vesting sovereignty in the people who constitute the
body politic and requiring them to constitutionally allocate
competences or powers among the governments of their creation.
They must do so in a noncentralized manner which provides for
both centralization and decentralization as needed, but always
within a noncentralized framework whereby all exercise of powers
is governed by law and related to the rights of the constituents.
Even with the federalist revolution in full swing, there will be
those states for whom federal structures will remain
inappropriate. Federalism is not a catch-all solution for all
problems. Nor should it be looked upon in that way. It is
certainly not a panacea. On the other hand, there is one way in
which federalism applies to all and that is in the appropriate
definition of liberty, properly one of the great demands of our
democratic age. There frequently is confusion about what
constitutes liberty, a confusion which, when boiled down,
consists of a confrontation between federal and natural liberty.
The theory of natural liberty is based on the assumption that
every person basically should be free to do whatever he or she
pleases, limited only by the forces of nature and the problem of
direct interference with the rights of others. In its present
formulation, people are at liberty to pursue boorish or
self-destructive courses of action. That is their privilege, as
long as they do not directly harm others. Contemporary pop
culture preaches a gospel of natural liberty.
True partisans of liberty, on the other hand, since the beginning
of the modern epoch have consistently emphasized federal liberty,
that is to say, the liberty to enter into a covenant with one's
fellows and then live according to the terms of that covenant,
whether we are talking of Hobbes' limited covenant of peace or
John Winthrop's Puritan Christian notion of an all-embracing
covenant in which federal liberty consists of pursuing the right
way to salvation. The possibilities between the Hobbesian
minimalist covenant and Winthrop's maximalist one are great. It
is within that range that we find true liberty. In the last
analysis, this may be the greatest contribution of federalism to
the development of a peaceful, prosperous, free and happy world.
Note
1. No adequate discussion of the federal dimension of the
biblical world view is presently available. Two of the best
available treatments of this point are to be found in the works
of Althusius and Buber. See, for example, Johannes Althusius,
Politics, trans. Frederick Carney (Boston: Beacon Press, 1964)
and Martin Buber, Kingship of God (New York: Harper and Row,
1967). This writer has treated the subject in "Government in
Biblical Israel," Tradition (Spring-Summer, 1973) and "Covenant
as the Basis of the Jewish Political Tradition," Jewish Journal
of Sociology (June, 1978). The Israel-based Workshop in the
Covenant Idea and the Jewish Political Tradition sponsored by the
Jerusalem Center for Public Affairs and the Bar-Ilan University
Department of Political Studies and its American-based
counterpart, the Workshop on Covenant and Politics sponsored by
the Center for the Study of Federalism, are probing that issue
among others. The principal work on the former is available in
Daniel J. Elazar, Kinship and Consent, The Jewish Political
Tradition and its Contemporary Manifestations (Lanham, Md.:
University Press of America and Jerusalem Center for Public
Affairs, 1983). The principal work of the latter is available in
Daniel J. Elazar and John Kincaid, eds. Covenant, Polity, and
Constitutionalism (Lanham, Md.: University Press of America and
the Center for the Study of Federalism, 1989).
