Confederacy for now: European (dis)integration as virtuous circle or vicious cycle?

This paper contrasts three visions of European (dis)integration – nationalist, federalist and confederalist – to conclude that Europeans need not choose between a disintegrative nationalism, or the excessive juridification and hierarchy of a state-like European federal order that subsumes their states into a supranational constitutional unity. The confederal alternative offers a constitutional theory of the EU that respects the historical contingency of the nation state, as Europeans’ chosen vehicle for democratic self-determination – an undeniable sociological constraint on integration – without reifying the nation state in the way that nationalism does. It reads the EU and its members instead as combining to “complete” one another’s constitutionality, in a non-state-like constitutional construct that integrates states (not peoples) through a precarious balance of supranational law and intergovernmental politics. This order obliges them to forgo unfettered sovereignty, reining in their tendency to discount the effects of their democratic self-determination on equally democratically legitimated neighbours when exercising national legal independence in a factually interdependent world.
While the EU cannot constitutionalise itself into a legitimate sovereign through procedural engineering alone, the better its procedures are, the more Europeans will accept it as a legitimate part of a confederal order that, on the one hand, acknowledges their desire to go on realising their democratic self-determination primarily through national political communities, but on the other, insists they submit the external effects thereof to at least some supranational scrutiny, while also enabling them to make some law together on matters that have moved beyond their unilateral reach. Their sense of connection – their cross-border solidarity and justice, perhaps even the idea that they might one day become a single European people – grows through the process of respecting one another’s legal independence by tempering their own, and by making some law together; all through processes that they deem legitimate for the purpose. If the EU gets it wrong – unnecessarily and counter-productively forcing the issue with a vision of integration that is too federalist – it runs the risk of achieving the opposite: a disintegrative vicious cycle, instead of an integrative virtuous circle.

RECONNECT Working Paper No. 5