The European Union and the Rule of Law

“The tyrant desires that his subjects shall be incapable of action, for no-one attempts what is impossible, and they will not attempt to overthrow a tyranny, if they are powerless”

Aristotle on Tyranny. 

Alphen, Netherlands. 2 September. Frans Timmermans, Vice-President of the European Commission and former Dutch Foreign Minister, is a decent man and certainly not the tyrant against which his beloved Aristotle rails. Indeed, I had the honour of meeting him at a big conference I chaired in Amsterdam a couple of years ago.  However, a Monday speech he gave at the University of Tilburg that my wife helped organise worries me. Entitled, “The European Union and the Rule of Law” it was in certain respects an excellent speech that sought to reacquaint the European Commission with the core principles of Europe’s Founding Fathers as arbiter for and between the states it is meant to serve.  However, read between its many lines and the speech does something else – by placing the rule of law ABOVE democracy and law as an ALTERNATIVE to power it seeks to justify the transfer of ever more state power (sovereignty) to the Commission in the name of toothless efficiency masquerading as law. In so doing Timmermans attempts to justify the idea that Higher Authority always knows best and with it power ever more distant from the ever more ignored citizen. Above all the speech demonstrates to me an EU heading inexorably towards a reckoning between state and super-state.

With much of the speech I could agree. The rise of xenophobia, intolerance, hatred and the populism it engenders on both the political Left and Right must be resisted. His assertion that democracy and the rule of law are intrinsically and inevitably intertwined is clearly correct. His reassertion of the need for a system of migration and asylum that is founded in both law and effective management is sound. Equally, Timmermans fails to point out that the current migration crisis has been exacerbated by the elite’s focus on the former but refusal to realise the latter.

However, my concerns about the speech are manifold. Timmermans particularly irritated me when he cited Mark Leonard’s trite, ‘tell the EU elite what they want to hear’ comment that ‘Europe’ had somehow “led the way toward a future run by committees and statesman, not soldiers and strongmen”. First, it was not the EU or its forebears that invented the idea of international institutions as constraints on extreme state action. Second, by emphasising law at the expense of power the EU has contributed to Europe’s wilful self-decline and retreat from the world and in so doing made both its region and the wider world a very much more dangerous place than it need be. Third, a Europe run by committee is a weakness not a strength.

However, it is over the relationship between law, democracy and power that Timmermans gets into a real tangle.  At one point in the speech he warns against “illiberal democracy” and that the rule of law must at times be used to justify the denial of the majority will, i.e. law not in partnership with democracy but superior to it. Yes, there are indeed occasions when mob rule must be countered and that is why the rule of law evolved.  As Plato said,   “Laws are partly formed for the sake of good men, in order to instruct them how they may live on friendly terms with one another, and partly for the sake of those who refuse to be instructed, whose spirit cannot be subdued, or softened, or hindered from plunging into evil”.  However, in a democracy it is the will of the people which is sovereign, or at least used to be.

Worse, Timmermans then links the rule of law to an idea of sovereignty that seems to defy contemporary reality. First, he states that, “European nations pooled sovereignty in order to secure the basic aims of sovereignty”.  He then defines sovereignty “as not just the right to act, but the ability to act”. Whether such a statement is viewed through the lens of legitimacy or efficiency it is patent nonsense.  Indeed, be it the Eurozone crisis or the migration crisis the EU’s institutions far from aggregating sovereignty have instead become a sovereignty black hole – denying member-states the ability to act, the right to act and ignoring the will of the people at one and the same time.

It is at this point the essential failing and indeed contradiction in Timmerman’s argument becomes apparent. For example, he states that: “For Europe, the rule of law is not just an inspiration, it is also an aspiration: a principle that guides both our internal and external actions”. However, having implied the rule of law is more important than democracy he also implies that law is an alternative to power.  This is also nonsense. Law is power. Whosoever makes laws must also have the power so to do.  Timmermans is in fact making an implicit argument for the supremacy of technocracy as decided by an elite oligarchy.

Again, I am not suggesting for a moment that either the European Commission or Frans Timmermans are tyrants. However, the speech certainly advocates more power for the Commission which is what all institutions and their leaders always seek. Here is the but and it is a big one. The speech comes perilously close at times to advocating the European Commission as Leviathan, a Europe in which stability is ‘guaranteed’ only at the expense of liberty. Timmermans might have been better advised to have reminded his audience of Lincoln’s Gettysburg Address and government of the people, for the people and by the people. Instead, for all the sophisticated prose this clever speech ends up being simply yet another of those EU elite plaidoyers which in the name of 'Europe' calls for the concentration of ever more power in a few elite hands – their hands. But then what do I know? After all, I am merely a citizen. Or should that be peasant?

So, for those of you unwilling to wade through all eleven of the labyrinthine pages of bad philosophising and Commission speak (the speech was clearly written by a Cambridge man) Timmerman’s speech can be satirically summarised thus (wait for it!): The world is so big and bad and getting more so that no single EU member-state can deal with it to effect any longer. Therefore if the European individual is to be protected against bad things ‘sovereignty’, i.e. power, must be ‘pooled’ which is a metaphor for giving ever more of said power to we the European Commission who in turn because we are bloody good chaps and chapesses (and paid accordingly) will render nasty state power ‘legitimate’ and because we are ‘legitimate’ courtesy of our pooled power we the Commission will generate, arbitrate and execute everything and call it the rule of law precisely because we are good chaps and chapesses and therefore legitimate.  AND as only we at the European Commission are really able to make any difference in this big, bad world because the states and their leaders are so pathetic and useless because we have ensured they must be then we the Commission must thus in time (hopefully not too long now) become THE sovereign power in Europe but only in the name of Europe and, oh yes, the people, of course. AND if the individual citizen does not a) understand; b) appreciate; or c) acquiesce in our efforts on his or her behalf it is because he or she is an idiot, insufficiently ‘European’, unendowed or imbued with ‘Europe’s spirit and values, and therefore cannot be trusted to understand complex things. AND whilst we at the Commission might still allow the people to vote from time to time any such polls will in effect be meaningless like the ones we run every four years for the European Parliament (good one, eh?) AND in any case if said people vote the wrong way which they do from time to time that is dissent and must be disregarded because it will be necessarily misguided and thus infringe the rule of law which by definition only we the European Commission can define because we decide the needs of the many which are ultimately far more important than the rights of the individual except when said individual is a member of a minority and must therefore be protected from the nasty majority whatever they think which is why we have the rule of law. 

Got it?

Julian Lindley-French