The nature and purposes of the EU

The question of what type of polity the EU is has puzzled scholars from the beginning of European integration in the 1950s. The answer remains open to much debate. While many scholars have been less than insightful by simply stating that the EU is ‘sui generis’, Larsen contends that, rather than a unique form of political association, it is a federation understood as ‘a political union of states founded on an interstate agreement of a constitutional nature, a federal compact, that does not absorb the Member State into a new state’.Footnote ¹

Larsen claims that the EU is arguably the only genuine federation that remains in the present day. Therefore, she goes back to the nineteenth century to find further examples that feed her theoretical and practical insights, namely the antebellum United States of America, the German Confederation, and the Swiss Confederation before developing into a federal state through the Constitution of 1848.Footnote ² In all three cases, these paradigmatic federations became federal states as a result of armed conflict.Footnote ³ We might point out that if the EU were to follow a bloody pathway to become a federal state, this would run contrary to its lasting-peace project.Footnote ⁴

The lasting-peace project has been a founding narrative and purpose of the EU.Footnote ⁵ Other essential, underpinning purposes of this union are, in my view, a state-rescue project, a shared-sovereignty project, a larger-market project, and a liberal-democracy project. As these projects may at times be in tension with one another and require harmonisation, the books of Larsen and López Bofill make a valuable contribution to the exploration of possible current imbalances and how equilibrium might be achieved.

In contrast to Larsen, López Bofill offers a more pessimistic reading of the EU, contending that rather than muting the voracity of state nationalism this ‘supranational artifact … deeply contributed to consolidate it and, with such a movement, the failure of the emergence of a European demos was ensured’.Footnote ⁶ For him, the original sin that cast a long shadow over Europe was a tacit agreement between nostalgic empires to renounce direct domination over overseas possessions in order to concentrate more fully on the defence of the national cohesion of their metropolitan territories, often hindering sub-state self-determination as well as supra-state integration.

Larsen and López Bofill follow Alan Milward in considering the EU to be a project to rescue its member states.Footnote ⁷ In fact, we could further argue that this project is not only to rescue but also to build and reinvigorate their members as nation-states. While European economic and political integration could make state disintegration more feasible as a matter of fact (since having a supra-state union could reduce the costs and uncertainties of small nations’ separation from their larger states),Footnote ⁸ there seems to be an unspoken agreement or cloaked complicity to avoid and deter state division, even when substate secession and self-determination is claimed through liberal-democratic mechanisms.Footnote ⁹

Empires and the EU

Larsen attempts to distinguish states and empires from federations and argues that the EU is as an important instantiation of the latter type of polity. In contrast to empires, she contends that in federations, as it is the case of the EU, states come together of their own initiative, by way of free contract, and with the promise of becoming equal partners.

Although territorial domination has typically characterised empires, there have been many forms of empires and their systems of territorial rule have tended to change over time and space.Footnote ¹⁰ Imperial domination or rule can be direct, imposed and coercive (traits that are deeply opposed to federalism and federation) or more indirect, consented or tolerated. Such consent or toleration can be based on economic and other material interests, as well as on more spiritual, cultural or political elements, including identity and ideology. In particular, the Holy Roman, the Habsburg, the Austro-Hungarian, and the German empires bore some resemblance to federal unions, and have influenced the development of federalism in Europe, including European integration.Footnote ¹¹ By encouraging, supporting and putting in place federal arrangements across its overseas territories and dominions, other empires such as the British one also helped the spread of federal ideas and practices.Footnote ¹² A general explanation could be that the more territorially extensive, separated and plural the polity, the more federal its governance may reasonably tend to be.Footnote ¹³

A federation is achieved through free and equal contract, whereas an empire is achieved by and through domination, according to Larsen. Nevertheless, she historically connects these different types of polities, given that European integration is a response to the decline of empire and state failure. ‘The Union emerges as the heir of European imperialism once the direct rule upon the vastness of transoceanic extensions disappeared’, claims López Bofill in a similar fashion.Footnote ¹⁴

A central idea of López Bofill’s book and his ongoing investigation into constitutional theory through history is that the EU, as well as federations and other similar unions, are the result of the weakness experienced by its founding members and those that subsequently join. ‘Only this weakness can explain the willingness of powerful nations (that took part in the process of European integration) to relinquish their imperial aspirations in favor of a discourse centered on transnational liberties and welfare’.Footnote ¹⁵

While for López Bofill weakness is key to explaining integration and federation, Larsen elegantly writes that ‘the federal union is meant to create equals out of unequals’.Footnote ¹⁶ Although weakness may explain the desire to unite in equal partnership, contracting parties do not need to be or feel equally weak. Beyond federalism and European integration, feeling weak may generally incline humans towards sociability, driving them to create and preserve encompassing groups, robust communities and political societies.

In a possibly reductionist approach, and perhaps conflating imperialism with state-nationalism, López Bofill claims that Brexit represents an extreme instantiation of imperial ‘nostalgia’. Nostalgic imperial dreams have still further consequences within and outside the EU, such as ‘coercive measures adopted to erode national minorities existing within the European borders of a particular member state or the capitalist occupation exercised by a group of central and northern European states to entrench their dominant position toward the southern and eastern peripheries of Europe’.Footnote ¹⁷

Imperial ambitions have evolved into a neo-imperialism that the EU has developed to maintain a privileged position for Europe worldwide. European integration was, for López Bofill, ‘the last bet to maintain the global influence of the western European states in spite of their respective empires’ dismantling’.Footnote ¹⁸ In a nutshell, he claims that ‘the change in the means of domination has not jeopardized the intention of continuing to exercise such a domination’.Footnote ¹⁹ If this were true, the EU as a federation could be seen as almost meeting the idea of domination that characterises Larsen’s definition of empire.

Theory on federalism and federation

Despite its practical importance in both Europe and elsewhere, federalism has been a relatively neglected subject by mainstream normative thought in both philosophy and law, while empirical studies have appropriated this field of study.Footnote ²⁰ The concepts of federalism and federation have remained rather obscured and under-theorised within political and constitutional studies, but Larsen and Tierney shine light into this darkness.

Larsen started to fill this theoretical vacuum by proposing a constitutional theory of the federation that focuses on the EU, and Tierney goes much further in proposing a constitutional theory of federalism (a much broader idea than the notion of federation) that focuses on federalism within states rather than among and beyond states (allowing him to take into consideration many more federal constitutional orders and experiences than Larsen). Federal constitutionalism is a distinct form of government, but this does not imply, according to Tierney, a distinct form of statehood. Federalism is, under his approach, a discrete and generic order of constitutional rule for the modern state.

In contrast to Tierney, Larsen aims to supersede the theory and practice of states when she builds her constitutional theory of the federation. A federation, which Larsen conceives of as a federal union of states, is a type of political association made through an interstate agreement that creates a new source of authority and an emerging people. Despite the predominance of the idea and theory of the state in modern times, she argues that federations should not be understood under the statist paradigm.

Providing a middle ground between Larsen and Tierney, my contention is that federalism can be applied within and beyond the state, and, accordingly, that it may foster peace, stability and prosperity within and beyond state borders. Since federal constitutionalism is, following Tierney, a discrete form of government rather than statehood, this generic order of constitutional rule may also apply beyond the state. Federalism could, in essence, be an interesting idea blessed with many theoretical and practical devices to recognise and accommodate territorial diversity.

Federation and confederation

In the mid-19th century, the German categories of Bundesstaat, as a form of ‘federal state’, which was also translated as ‘federation’, and Staatenbund, as a form of ‘state federation’ more commonly translated as confederation, confederacy or league of independent states, have dominated the debates on federalism. Larsen argues that this typology is to be rejected for attempting to connect the concept of federation to that of state: ‘the federation is not a subspecies of the state, but rather a discrete political form’.Footnote ²¹ Following Schmitt’s Constitutional Theory, Larsen insistsFootnote ²² that this ‘simple’ distinction between federal state and state federation ‘is no longer possible’. However, perhaps we should understand these categories as ideal types, which in the real world are not to be found in a pure form but combined in different ways and measures. In particular, while most would think of the EU as a confederation, it has certainly developed federal traits.Footnote ²³

Tierney criticises this binary distinction between Bundesstaat and Staatenbund since it focuses on the form of state rather than the form of constitutional government and it thus fails to distinguish constitutionalism from statehood.Footnote ²⁴ He claims that federal constitutionalism is a distinct form of government but this does not imply a distinct form of statehood,Footnote ²⁵ and ‘the elision of state and constitution is a category mistake’.Footnote ²⁶ Despite being theoretically interesting, Tierney’s approach might appear to some to be slightly artificial given that the type of territorial constitution is conventionally understood as playing a significant role in shaping and influencing the type of state. In other words, the form of statehood and the form of (territorial constitutional) government seem to be closely connected.

In the 1970s, federal scholarship introduced the felicitous distinction between ‘federalism’ as a normative idea and ‘federation’ as one of its institutional manifestations. Rather than being descriptive, federalism is basically a normative term that refers to the advocacy of multi-tiered government combining elements of shared rule and regional self-rule.Footnote ²⁷ The idea of federalism consists of uniting peoples under a contractual power-sharing relationship combining self-rule and shared rule.Footnote ²⁸ Many federal scholars have insisted on this combination of self-rule, which Tierney calls ‘autonomous government’,Footnote ²⁹ and shared rule, which he refers to as ‘associational government’,Footnote ³⁰ in order to ensure that the central order of government gives voice to the federated units, so protecting their autonomous interests while at the same time encouraging identification and alignment with the union.Footnote ³¹

Among the institutional manifestations of federalism as an idea, we may first introduce the notion of the federal political system, which is, according to Ronald Watts:

This broad genus thus encompasses different types of unions, such as federations, quasi-federations, confederations and (con)federacies. ‘As in a spectrum, the categories are not sharply delineated but shade into one another at the margins’, he argues.Footnote ³²

Watts reserved the term federation for a specific category within the genus of federal political systems, given that:

With respect to the EU, Watts considers that its origins were fundamentally confederal but that during the course of its development it has become a unique hybrid of features found in both confederations and federations. Unlike Watts, for Larsen the EU is not essentially confederal, but rather the only genuine federation that remains in the world today. By contrast, Watts refers to 25 functioning federations, while mentioning five contemporary confederations and hybrids such as the EU.Footnote ³⁴

According to Dimitrios Karmis and Wayne Norman, we typically think of confederations as much ‘looser’ unions than federations, and this ‘looseness’ has been characterised in various ways: in particular, paying attention to whether or not the units have a right to veto constitutional changes or to unilaterally exit the union.Footnote ³⁵ Among typical features that distinguish confederations from federations, Andreas Follesdal first lists that ‘member units may legally exit’ from confederations.Footnote ³⁶ Since confederations are generally looser unions than federations, the former ‘are more likely to have decision-making rules based on unanimity, and to permit opt-outs, and indeed secession’.Footnote ³⁷

Federation and secession

While making an effort to encompass confederal constitutions within his capacious idea of federalism, Tierney apparently accepts that confederal – in contrast to federal –constitutions might require territorial unanimity for a range of constitutional decisions and may offer a constitutional right of secession.Footnote ³⁸ In this regard, a long-standing doctrine holds that federal states are different to, or can be distinguished from, confederal polities and international organisations since the former do not recognise a right to secede whereas the latter normally do.Footnote ³⁹ My normative contention, which opposes practice and is likely to meet resistance from power politics, would be that the more voice member states have in a confederation or loose union, the more legitimate or justified it could be to qualify or limit a right to exit.Footnote ⁴⁰ In other words, larger degrees of self-rule and shared rule can be normative arguments for qualifying or limiting secession.Footnote ⁴¹

Federal constitutions can, according to Tierney, be founded upon the basis of indissolubility, as Lincoln claimed and the US Supreme Court in Texas v White Footnote ⁴² confirmed. Nonetheless, following his broad idea of federalism and the contrasting approach of the Supreme Court of Canada in the Quebec Secession Reference,Footnote ⁴³ Tierney argues that ‘the federal idea leaves the question of secession to each constitution to manage, depending upon how it envisages the nature of constituent constitutional authority within its own polity’.Footnote ⁴⁴ However, without a proper normative reflection on secession, the regulation in each constitution may depend on ‘the arbitrament of arms’, as the US Supreme Court admitted in Daniels v Tearney.Footnote ⁴⁵

According to Larsen, ‘that the federation is contracted in “perpetuity” does not necessarily mean that it lasts forever. The “permanence” is part of the intention of the federal compact’.Footnote ⁴⁶ Common confusions may arise from this. She treats perpetuity as a synonym of permanence but I would question this: while the former makes us think of an unbreakable or indissoluble contract, the other merely refers to a compact of unlimited duration or with no specific limit of time. Therefore, a perpetual union is something normatively thicker and more ambitious than a permanent union.

In the 1964 Costa case,Footnote ⁴⁷ the ECJ held that ‘the transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail’. Although the Court described this limitation of member states’ sovereign rights as definitive (in the French, Italian, and Spanish versions) or permanent (in the English version), this does not necessarily mean perpetual or indissoluble.Footnote ⁴⁸ ‘Definitive’ in the sense of ‘permanent’ seems to refer to the lack of any predetermined temporal limits, but not to the impossibility of terminating or withdrawing from the Union. Despite recognising a right to exit in Article 50, the Treaty on European Union was ‘concluded for an unlimited period’ (former Article 51 and current Article 53).

For López Bofill, the regulation of secession from and within the EU is an important element that supports his understanding of this association as a tool to rebuild the European nation-states. Two relevant provisions were recognised in the drafting of the Constitutional Treaty (2004) and later included in the Treaty on European Union (2007): together with an ultimately unilateral right to withdraw of each Member State,Footnote ⁴⁹ a principle of territorial integrity was enshrined to armour the national identity and unity of member states against ‘internal defiance launched by minority nations’.Footnote ⁵⁰

I wonder whether Larsen would support certain reasons for secession or a qualified right to secede in spite of her appeals to perpetuity and permanence. She argues that ‘a federation is a permanent union of two or more states that rests on a free agreement of all Member States with the common goal of self-preservation’,Footnote ⁵¹ that ‘federations are constitutional projects and as such they are often created in order to realize or perpetuate specific political identity or “way of life” for their Member States’,Footnote ⁵² that the federation is ‘committed to preserving the diversity of its Member States’.Footnote ⁵³ Could a state’s self-preservation, including the preservation of its autonomy and diversity, be a reasonable argument to secede from a federation? In times of crisis, federal institutions tend to appeal to a unitary authority that may shift the federal balance in both the short and the long term.

An unstable balance: dual and confronted telos

According to Carl Schmitt’s constitutional theory, a federation is an unstable and thus transitional form of government that tends to lead to statehood as a more stable and perfect political association.Footnote ⁵⁴ For Hannah Arendt, the state is unstable for liberal-democratic reasons, given that it has a tendency to favour the concentration of power internally (authoritarianism) and the expansion of powers externally (imperialism). Under Arendt’s perspective, the federation is a more reasonable and promising form of government since ‘in the realm of human affairs sovereignty and tyranny are the same’. The ‘abolition of sovereignty’ is, according to her, a great invention of a federal republic.Footnote ⁵⁵

Despite their many disagreements, both Arendt and Schmitt are main sources of inspiration for Larsen, who tries to harmonise their differences by pointing out that both states and federations can be unstable. When states are weak or unstable, federating is a common way to secure themselves militarily, politically and economically. In periods of crisis, federations often have the temptation to adopt some form of emergency rule that entails centralisation, which may lead to unification into a federal state or disintegration into different states.

In fact, after World War II, the weak states of a devastated Europe, experiencing the decay of their former empires, started as both an economic and military federative process. European integration thus shows that both states and empires can be or become unstable due to war and conflict. Larsen notes that the process of European integration had been surprisingly smooth until the debt crisis around 2010.Footnote ⁵⁶ To counter this crisis and the later calamities of Covid-19, the Ukraine war and the backsliding with regard to the rule of law in certain member states, non-explicit emergency rule has been implemented in the EU.

As emergency rule tends to involve more centralisation and unification while restricting autonomy and diversity, this may put into tension the double government structure and the double political existence of the federation, perhaps leading to federal imbalances and even statehood through either integration or disintegration. Federations often create a federal people and a federal legitimate authority, which in times of crisis may eventually override member state peoples and their authorities.

United in diversity is a well-known EU motto that expresses an ideal federal balance. A more realist approach, however, especially in times of adversity, would be to acknowledge that tensions and imbalances may arise between unity and diversity. Federal balance, as Larsen puts it, depends on striking an equilibrium between contradictory forces: ‘the federation is simultaneously directed towards unity and diversity, transformation and conservation, the past and the future’.Footnote ⁵⁷ Chapter 4 of Larsen’s book is dedicated to the ‘precariousness of this balance’. When addressing the complexity and fragility of the federal balance, we should not see the inherent tension between union and pluralism as a pathology which leads federalism to its inevitable demise.Footnote ⁵⁸ This tension should, to some extent, be normalised.

Such a tension is encapsulated in the united in diversity maxim. However, if a reasonable balance is to be struck and maintained between union (perhaps preferable to the potentially homogenising notion of unity)Footnote ⁵⁹ and pluralism, why should the EU aim to achieve an ‘ever closer union’? Is there no point at which closer union would run counter to the constitutional singularity, identity, autonomy, or even existence of its units? In any case, the ‘ever closer union’ motif seems inspired by the Kantian advice on how perpetual peace might be achieved: since ‘the positive idea of a world republic cannot be realized’, Kant recommends that we should pursue ‘an enduring and gradually expanding federation likely to prevent war’.Footnote ⁶⁰ But an ever closer union may be at odds with one that is gradually enlarging.

Sovereignty and federalism

Federations, and the EU in particular, cannot be understood on the basis of the general theory of the state or its concept of sovereignty, Larsen maintains. Rather than being organised around the sovereignty idea, federal unions are characterised by a double government structure and political existence, with a lack of internal hierarchy and the internal absence, contestation or repression of sovereignty.Footnote ⁶¹ For her, while the notion of sovereignty is primordial or preeminent to understanding the political form of the state, it is ‘useless’ and should be set aside when conceiving and analysing a federation.Footnote ⁶² But if federal unions are characterised by internal absence, contestation or repression of sovereignty, should we then set aside the idea of sovereignty in federations or rethink the very notion of it?

My question therefore is whether sovereignty is compatible with the idea of federalism and with federal polities. While for Larsen the concept of sovereignty is ‘incompatible’ and ‘impossible to reconcile’ with the federation,Footnote ⁶³ I am inclined to believe that sovereignty can adapt to federal theory and reality. Such an adaptation can be done in two main ways that may well complement each other. One way that sidesteps the thorny task of redefining the concept is by coining new conceptions. Although I cannot comment on all the many different conceptions, I might just mention some terms or labels that have been put forward, such as post-sovereignty, post-Westphalian sovereignty, post-modern sovereignty and post-national sovereignty. Beyond the post prefix, adjectives such as soft and liquid have also been used to coin terms such as soft sovereignty and liquid sovereignty.

Another way is by broadening the concept of sovereignty, with the possible cost of losing a measure of clarity of an already ambiguous and contested concept. In fact, all these new terms and the conceptions behind them require or imply a broadening of the concept of sovereignty. In general, conceptions are meant to fit within a concept.Footnote ⁶⁴ When we typically refer to or reflect on conceptions such as ‘representative democracy’, ‘justice as fairness’ or ‘formal equality’, we are implicitly maintaining that the concepts of democracy, justice and equality are broad enough to include or encompass these different conceptions.

A broad concept of sovereignty takes in political and legal powers and the authority to regulate, decide and adjudicate on high constitutional matters as well as to have a recognised status and role in key international affairs. This internationally recognised status grants competences by default to adopt high constitutional laws, decisions and rulings. Sovereignty typically refers to territorial or territorialised forms of power and has long been related to statehood. Sovereignty is not only concerned with ultimate authority, which is a controversial idea best avoided especially in federal systems, but also with political and legal powers that presume a certain priority, strength and depth.

This tentative definition requires immediate notes of caution. When dealing with the idea of sovereignty, we must not forget that time and place are crucial. Sovereignty is both contextual, since it responds and adapts to circumstances, and protean, for it can take many forms. The open texture of the concept of sovereignty and its resulting indeterminate inclusiveness indeed permits a protean diversity in the realisation of sovereignty as a claim that articulates and sustains a certain vision of the power of the polity and the structure of interpolity relations.Footnote ⁶⁵ It is this very vagueness, not to say ambiguity, that makes the sovereignty idea more tenacious and adaptive.Footnote ⁶⁶

Tierney signals that constitutional theory often elides external, state sovereignty with internal, constitutional sovereignty.Footnote ⁶⁷ Internal sovereignty, or sovereignty under internal law, is identified with the supreme power towards the population in its territory. This sovereignty faces inwards and tends to be recognised from within. Conversely, external sovereignty, or sovereignty under international law, is identified with a supreme power in a negative sense, namely independence. This sovereignty faces outwards and tends to be recognised from outside.

While external sovereignty seems more related to the notion of statehood under international law (i.e. state sovereignty), internal sovereignty seems more concerned with the constitution as the main source of internal law (i.e. constitutional sovereignty). According to Tierney, this distinction is of crucial importance for harmonising federalism and sovereignty, since it allows external (state) sovereignty to be conceived in the traditional monist way and internal (constitutional) sovereignty in a pluralist manner. It also allows federalism and federation to be harmonised with statehood. Federalism is, under his approach, a form of constitutional design and practice for a modern, sovereign state. Unlike Larsen, Tierney finds that sovereignty and federalism can be compatible.

The last chapter of Larsen’s book is titled ‘Emergency Rule without a Sovereign’, and it holds that ‘the federation as a discrete political form relies on the suspension of sovereignty and therefore on the question of who decides remaining unanswered’.Footnote ⁶⁸ However, Larsen notes that emergency government has the potential to answer this question, since the sovereign is the one who decides on the exception, as claimed by ‘the most intelligent of the Nazis’.Footnote ⁶⁹ Schmitt indeed argued that it is precisely the exception that makes the whole question of sovereignty relevant.Footnote ⁷⁰

Paying attention to the subject of sovereignty (the who question) rather than the object of sovereignty (the what question) may well lead the debate to presuppose the existence of an unlimited, final, independent, perpetual, indivisible, underived political power, which seems incompatible with genuine federal thought and practice. By contrast, if the debate is more concerned with what sovereignty is, the answers, including Larsen’s, could be more inclined to question the mentioned attributes and inquire about the existence and nature of such power, perhaps qualifying, relativising and nuancing it.Footnote ⁷¹ However, at the end of the day, and as Tierney contends, the ‘who’ of sovereignty may well be an essential dimension of the ‘what’ of sovereignty.Footnote ⁷²

Final remarks

Anyone interested in theories of federalism and European integration will find much to chew over in the books of Larsen, Tierney and López Bofill. They defend different theses from different prisms but taken together they may help us to have a more complex and nuanced picture of the issues that we have discussed. Tierney develops the broad idea of federalism as a constitutional rule within sovereign states that offers a territorially-pluralist alternative to traditional unitary constitutionalism. Larsen is interested in the European federation as a genuine association of states that transcends the sovereign state, whereas López Bofill focuses on the EU as a political instrument for building and securing the sovereignty of its nation-states.

Three books that help us to answer three distinct but closely connected questions: What is federalism? What is a federation? And what is the EU? Despite their different approaches and answers, these works will provide theoretical and practical insights for the readers to build their own arguments and conclusions. My own postulate would be that, in order to overcome some of this century’s crucial challenges, the EU should become more like its member states, while these states should adopt a more multinational federal culture (and so less unitarian and nationalist) for both their internal pluralism and European integration to thrive.

However, this is a mere hypothesis that may deserve to be labelled as naïve since a significant federalisation of the EU is likely to be difficult without the aid of accidental and impactful events such as wars, as happened in the USA, Switzerland and Germany. Closer integration by creating, for instance, a powerful European Army and Defence Union would probably be resisted by member states on grounds emerging from issues explored in the present essay, such as sovereignty, imperialism, state-nationalism, confederation, secession, and unstableness. The balance between union and diversity, which we may call the scale of federalism, could then become uneven and unsteady.