“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?
Got it?
Julian Lindley-French
