Constitutionalism Without Constitution: Transnational Elites Between Political Mobilization and Legal Expertise in the Making of a Constitution for Europe (1940s−1960s)
2007; Cambridge University Press; Volume: 32; Issue: 1 Linguagem: Inglês
10.1111/j.1747-4469.2007.00052.x
ISSN1747-4469
Autores Tópico(s)Historical and Contemporary Political Dynamics
ResumoLaw & Social InquiryVolume 32, Issue 1 p. 109-135 Free Access Constitutionalism Without Constitution: Transnational Elites Between Political Mobilization and Legal Expertise in the Making of a Constitution for Europe (1940s−1960s) Antonin Cohen, Antonin Cohen University of Picardie in Amiens, and a member of the Centre Universitaire de Recherche sur l'Action Publique et le Politique (CURAPP)Search for more papers by this author Antonin Cohen, Antonin Cohen University of Picardie in Amiens, and a member of the Centre Universitaire de Recherche sur l'Action Publique et le Politique (CURAPP)Search for more papers by this author First published: 02 March 2007 https://doi.org/10.1111/j.1747-4469.2007.00052.xCitations: 41 Antonin Cohen ([email protected]) is Assistant Professor at the University of Picardie in Amiens, and a member of the Centre Universitaire de Recherche sur l'Action Publique et le Politique (CURAPP). This article is based on research undertaken at the European Institute of the London School of Economics (European Commission Marie Curie research fellowship HPMF-CT-2001-01484); at the European Studies Centre of St. Antony's College, Oxford University (Deakin research fellowship); and at the Committee for European Studies, Princeton University (French Ministry of Foreign Affairs Lavoisier research fellowship). The author expresses his sincere gratitude to Paul Taylor, Howard Machin, Alain Guyomarch, Timothy Garton Ash, Kalypso Nicolaïdis, and Ezra Suleiman, and to Jacques Lagroye, Bernard Lacroix, Françoise Dreyfus, and Pascale Laborier. AboutSectionsPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinkedInRedditWechat Abstract By exploring how early political investments in favor of a European Constitution have been turned into a legal enterprise to constitutionalize the European treaties, this article analyzes the changing role of legal elites in the genesis of a European transnational order. At first, legal activities of constitution-making were closely linked to military issues and political mobilizations; later, the legal work of constitutionalization took a different path as a result of the process of differentiation of the European field of power and of the internal and contradictory logics of a newly created legal institution, the European Court of Justice (ECJ). By reconstructing the constitutionalization process, this article highlights the various types of elites then competing for the early definition of a European transnational order and, in particular, the capitals and representations of legal agents in the making of a Constitution for Europe. There is hardly an issue at stake in the sociology of law that cannot find its empirical and theoretical test in the history of European integration. The institutionalization of a transnational jurisdictional organ, the invention of a specific jurisprudential repertoire, the production of a common doctrinal corpus, the formation of a body of specialized scholars, the creation of courses or even distinct university programs; in short, the social construction of a system of both practical and symbolic objective relations between legal institutions and agents on the scale of several nations, which one might be inclined to think of as the emergence of a "field," are all research questions still largely open to social scientists for investigation. To refer to the genesis of "European law" as the formation and formalization of a set of specifically legal social relations within a larger field of power under structuration amounts to addressing once again "the question of the historical conditions that must be fulfilled in order for an autonomous social sphere to emerge, as a result of the struggles in the field of power, capable of producing and reproducing, through the logic of its specific functioning, a legal corpus relatively independent from external constraints" (Bourdieu 1986, 3; 1992).1 The sociological issue at stake in the invention of a European legal and political order, where law appears both dominant and in a state of relative destitution (unable to present themselves "as the necessary outcome of a regulated interpretation of unanimously recognized texts" (Bourdieu 1986, 4), the landmark decisions of the European Court of Justice (ECJ) have quite often been denounced as "mere political coups de force"), lies in the social conditions of possibility of the law itself, its "force," that is, the force that social groups authorized to speak in its name succeed in conferring upon law. Most of this process has been researched and well documented already in what is generally described as the "constitutionalization" of European political, legal, and economic order (Stone 2004; Weiler 1999; Maduro 1998). Turning their backs on the heroic vision of a small elite of judges remodeling on its own the national legal orders through supranational jurisprudence (Mancini 2000; Pescatore 1992; Lecourt 1976), many scholars insisted—in what became a battleground between intergovernmental and neo-functional approaches to European integration (Mattli and Slaughter 1998)—on the multiple and decisive contributions of ECJ's "interlocutors" to the enforcement of European law (Mattli and Slaughter 1998; Weiler 1994, 1993; Burley and Mattli 1993). These included national courts (Alter 2001; Golub 1996; Weiler 1994), private corporations (Rawlings 1993), and individual citizens (Harding 1992), enjoying variously silent political assent, misperception, or dissent from European nation states (Alter 1998, 1996; Garrett 1995; Mattli and Slaughter 1995), or acting, on the contrary, in clear political collusion with and gaining support from the European Commission (Alter and Meunier 1994). All contributed to the process by acting in their best interest (Burley and Mattli 1993); all were quietly driven by the logic of market forces (Stone and Brunell 1998; Stone and Caporaso 1998) in the more general context of an absent-minded awareness or support from ordinary citizens (Gibson and Caldeira 1998, 1995).2 Yet, of the various social groups that Eric Stein once identified as major players in the "making of a transnational constitution" (Stein 1981)—judges and advocate generals of the ECJ, members of the legal services of the European Commission and Council of Ministers, legal consultants of the national ministries, legal scholars, and law professors, to which one should add the "middlemen" of European integration (Scheingold 1971, 36), i.e., private practice lawyers and attorneys—most remain to be studied as social groups. Among them, some did both influence and benefit from the constitutionalization process. But, albeit the need for research has been constantly underlined (Shapiro and Stone 1994; Weiler 1993), very few studies have actually focused on their particular role and social characteristics (noteworthy exceptions are Kenney (2000, 1999); Schepel and Wesseling (1997)). Paradoxically—given that the ECJ is deemed to be at the center of this process (Burley and Mattli 1993), and that the nomination of supranational judges by national governments seems a key issue in the intergovernmental/neo-functional controversy (Weiler 1994)—the potential impact on ECJ's jurisprudence of a long-term transformation in the social recruitment of its members has been completely overlooked. The central claim of this article is that the process of "constitutionalization" is embedded in the early investments and representations of specific agents with distinctive "portfolios of capitals" (Dezalay 2004; Dezalay and Garth 2002), whose particular role in the making of a "European Constitution" must be understood in the light of the initial differentiation of a nascent transnational field of power. Early European integration can be described as a series of struggles between opposing types and segments of national elites (political, bureaucratic, juridical, economic, trade union, intellectual), competing to define an institutional framework for this yet loosely institutionalized transnational space, and seeking to reproduce, through these institutions, their national power, positions, and capital at the international level. These struggles finally (but not in their finality) resulted in a very complex structure of intertwined international organizations in which central functions or forms of state power (defense, human rights, parliamentary representation, bureaucratic, and legal market regulation) were dislocated and reallocated to specific organizations (the Western European Union and the North Atlantic Treaty Organization, the Council of Europe, the European Coal and Steel Community, and the European Economic Community), or even to specific institutions within these organizations (bureaucratic market regulation fell to the European Commission, whereas judicial market regulation fell to the European Court of Justice). This dislocation occurred, however, after the first attempt to unify the divided institutions of the united Europe failed in 1954. This article focuses on the practical transformations of the role of legal professionals collectively engaged in shaping a new transnational order that was to be founded on the explicit transposition of national forms of political and legal organization, as well as on the implicit reproduction at the international level of their specific capital.3 It portrays these transformations by concentrating upon a turning point in shaping the transnational order, where the same category, the "constitution," shifted from one repertoire to another: from politics to law. At first, legal activities of constitution-making were closely linked to military issues and political mobilizations in which the American constitutional model tended to be the central point of reference and the American foreign policy establishment a key player. Subsequently the legal work of constitutionalization took a different path, in which a transnational body of basic European law principles emerged, partly as the result of the internal and contradictory logics of a newly created legal institution: the ECJ. This small set of judges and advocate generals—whose own structure of capital perfectly reproduced the opposition of dominant capitals competing in the early European transnational space (for it was composed of former parliamentarians, trade-unionists, economic civil servants, high courts judges, and academics)—had to find their way through the contradictory constraints of state power and international organization, big corporations and individual citizens, the rule of the market and the rule of law. This article aims at reconstructing the process of differentiation of the early European field of power through the social history of a legal utopia, the constitution, focusing on the specific role of legal agents in the promotion of this category and showing how legal investments in favor of a European Constitution were later turned into a legal enterprise of constitutionalization of the European treaties. In other words, constitutionalization came as a masterly and opportune substitute for a real constitution, and law as a convenient expedient for politics. In this way, the article illustrates the strategies of ideological neutralization that have turned many of the political issues raised by European integration into technical matters, in particular regarding the "form" and "structure" of this loosely institutionalized transnational order. It also illustrates the dynamics of Europeanization that resulted in the emergence of a specifically European model of fundamental legal principles that was to challenge the original American constitutional model. To understand the practical pathways along which the competing models circulated, in the context of the cold war, through the promotion of federalism and the development of a constitutional comparativism in which the U.S. Constitution was the central point of reference, as well as through a political and legal discourse on the preservation of a specifically European "culture" and "civilization," it is necessary first to provide an account of the political investments of a number of European and American transnational entrepreneurs in the definition of a new international order and of the legal investments of different law professionals (both American and European) in the formalization of a model of federalism based on the comparison of different forms of federations.4 One may then suggest that, at least for some of the founding fathers of European law, the invention of a common and specifically European legal tradition from which the fundamental principles of a European jurisprudence could be extracted was a powerful way to legitimize their "revolutionary" stance in favor of constitutionalism without a constitution. In addition to the fact that "the discourse on law is extremely discrete regarding the role of lawyers" (Dezalay 1992, 16), the divide between lawyers' legal and nonlegal activities tends to lead most scholarship to disregard one of their most important characteristics: These players, whose activities are situated at the intersection of different social spheres, inhabit a multiplicity of institutional positions; they are at home in the different types of discourses and practices that these positions authorize, from legal politics to legal policy. First I will highlight the general context of international struggles between national elites, as well as the central influence of transatlantic networks in the genesis of a European Constitution; then I will analyze the role of legal scholars in the drafting of this constitution (in what could be called a "legal cold war"), as well as in the conversion of these early political investments into a legal enterprise: the constitutionalization of the treaties. THE STRUGGLE FOR EUROPE: COMPETING ELITES AND THEIR PLANS TO UNITE EUROPE It seems essential first to highlight the generalized competition generated by the perspective of a united Europe in order to understand the various and competing plans that soon emerged for the definition of a yet loosely institutionalized transnational space. Even though political elites were relatively dominant at The Hague Congress of 1948 (representing 45 percent of all delegates), some lasting cleavages nevertheless arose regarding the institutional framework of European unity, broadly opposing professional politicians to the leaders of intellectual, economic, or trade-union elites (representing respectively 26 percent, 14 percent and 5 percent of the delegates).5 As a matter of fact, social differences within national delegations at The Hague are key to understanding that ideological positions regarding early European integration (between "unionists" and "federalists") were not so much determined by national cleavages (between the British and the Continentals), but rather by a decisive social opposition between political elites, on one side, traditionally attached to parliamentary representation, and most of their direct rivals, on the other side, who had quite different ideas on how Europe should be concretely organized. In order to understand the underlying social structure of national cleavages at The Hague, some significant discrepancies should be pointed out in the internal subcompositions of each national delegation. Whereas political elites represented 57 percent of the delegates in the case of the United Kingdom (47 percent if we take into account only elected members of parliaments and governments), they only represented 38 percent in the case of France (33 percent according to the aforementioned restrictive criteria), and 33 percent, 32 percent, and 26 percent in the case of the Netherlands, Belgium, and Italy, respectively.6 This primary difference between national delegations should also be viewed in light of a series of secondary differences. Whereas economic elites only represented 5 percent of the total British delegation, they represented 27 percent of the Dutch delegation, including a high proportion of executives of internationalized industries, 20 percent of the Belgian delegation, including a significant proportion of representatives of employers' unions and organizations, and, respectively, 18 percent and 16 percent of the Italian and French delegations. Following a similar pattern, while trade union elites only represented 1.5 percent of the British delegation, they represented, respectively, 12 percent and 10 percent of the French and Belgian delegations (mainly coming from the noncommunist trade unions). Intellectual elites represented 44 percent of the Italian delegation (two-thirds were university professors), 30 percent of the Belgian delegation (four-fifths were university professors), and, respectively, 23 percent and 22 percent of the French and British delegations. As it was originally planned and debated at The Hague, the transnational assembly designed to "represent" Europe was to be composed of an equal proportion of elected representatives of national parliaments and of nonelected leaders of nonparliamentary elites, drawn from the ranks of trade unions and corporate interests, intellectual and religious organizations, on a "corporative" basis. It is therefore not particularly surprising that the creation of the Consultative Assembly of the Council of Europe one year later, strictly composed of members of parliaments, came as a disappointment for many of these agents. As we will see, the European Council of Vigilance was a direct reaction to the institutionalization of the Consultative Assembly. So, in many ways, was the Schuman Plan. The latter emerged as an initiative from a very specific bureaucratic segment of the French state elite (whereas national bureaucratic elites had been completely marginalized at The Hague) and its main institution, the so-called High Authority, was to be composed of independent (i.e., nonelected) experts managing the central aspects of European coal and steel markets. (The official declaration through which European countries were invited to join this new organization did not even mention any sort of European parliamentary control over this institution.) If MPs were somehow to succeed in imposing a parliamentary assembly as the political foundation of these two organizations, the Council of Europe (CE) and the European Coal and Steel Community (ECSC)—just as a small set of multipositioned legal entrepreneurs succeeded in imposing a legal body, i.e., the European Court on Human Rights and the Court of Justice of the European Community, as the cornerstone of these two dissimilar sets of institutions (Cohen and Madsen 2007; and see Madsen in this issue)—the idea of "corporative" representation would prove to be a failure. This general context explains why, from 1948 to 1954, the European Constitution emerged as the only way to reconcile practically the competing and opposing plans for uniting Europe that would result in a set of differentiated institutional frameworks: a unified market regulated by bureaucratic authorities, an interrelated though divided set of parliamentary institutions, two separate legal bodies to enforce human rights violation or free trade infringements, and, as it soon turned out to be necessary given rising international tensions, a European defense or even a European army. As a way to reunify a European transnational space that was rapidly differentiating following the dynamics of this competition between elites, the European Constitution soon rallied a wide array of support. A small set of legal-political entrepreneurs, however, played a decisive part in this particular undertaking, for they quickly understood what was at stake in such a grandiose plan—the reproduction at the international level of the legal forms and norms that had made their specific capital at the national level. Originating in the transatlantic networks of the "European nebula," the European Constitution would soon attract high-profile law professors and practicing lawyers whose multiple positions in various informal groups and institutional venues put them in a strategic position to make it a (temporary) success. THE EUROPEAN CONSTITUTION: TRANSATLANTIC NETWORKS AND TRANSNATIONAL MOBILIZATIONS Although various drafts of a European Constitution had come into being since the end of the 1930s, particularly in the informal groups of legal experts created within the movements such as the Federal Union (Pinder 1986) that gave strongest support to a "federal" solution to the "crisis of European imperial societies" (Charle 2001), it was not really until after World War II that the first transnational mobilizations in favor of such a constitution took form (Griffiths 2000).7 At The Hague, particularly, Count Richard Coudenhove-Kalergi called for the creation of the United States of Europe, based on a federal constitution to be modeled on the Swiss Confederation or the United States of America (Council of Europe 1999, 14). He attempted to mobilize support in favor of such a project, both in Europe, among members of parliaments, and in the United States, among the foreign policy establishment.8 In this particular undertaking, the founder of Pan-Europe created a committee originally called the American Committee for a United States of Europe that one of its prominent members, Allen Dulles, soon turned into an instrument for the definition and implementation of U.S. foreign policy in Europe under the name of American Committee on United Europe (ACUE) (Aldrich 2001, 1997, 1995).9 It is important to outline the composition of this committee in order to understand, on one hand, the various social strata that made U.S. foreign policy so efficient in postwar Europe (Barnes 1981, 1982; Winand 1993) and, on the other, to show how the project of a European Constitution was embedded in the international context of the cold war. Allen Dulles himself, a graduate in international law from Princeton University (1916), was a partner (with his brother John Foster Dulles) at the largest of U.S. law firms set up in Europe during the interwar period (Lisagor and Lipsius 1988). In practice, Dulles's activity within Sullivan & Cromwell, which involved looking for lenders on the European markets and bringing them into contact with American banks and, conversely, keeping watch on the debt service on behalf of these banks once the loan had been made, was not substantially different from his activity during and after World War II within the Office of Strategic Services (OSS), for which he supervised all U.S. secret operations in Europe from Berne (and particularly the financing of Resistance movements),10 or within the Central Intelligence Agency (CIA), of which he became Deputy Director of Operations in 1950, and Director in 1953. Chaired by William Donovan, former Director of the OSS, with two vice-chairmen, Allen Dulles and millionaire Herbert Lehman (governor and subsequently senator of the state of New York), the Executive Committee of the ACUE was comprised of Secretary General George Franklin, one of the main coordinators of the Council on Foreign Relations (CFR) (Wala 1994),11 Treasurer Francis Truslow, Executive Director Thomas Braden, who rapidly became the head of the International Organizations Division of the CIA,12 and, more generally, industrialists, such as Charles Hook, trade union leaders, such as David Dubinsky and Jay Lovestone, academics, such as Arnold Zurcher, and lawyers, such as Walter Maguire, George Nebolsine, Charles Spofford, and Robert Patterson.13 Created with the explicit aim of supporting the European Movement (EM), founded under the honorary chairmanship of Winston Churchill after The Hague Congress on the initiative of Duncan Sandys (Churchill's son-in-law) and Joseph Retinger (the founder of the Bilderberg group), the ACUE financed up to half of the EM's operating budget (Aldrich 2001). During the first meeting of the ACUE in January 1949, Dulles made it clear that one of the main missions the committee would have to take on would, in fact, be to "raise funds to assist the European groups working for unity."14 Indeed, this was the concern that Sandys had already spelled out in a letter to Franklin at the end of 1948: "There are two ways in which a committee of this kind could be of immediate help. The first is publicity and the second money."15 Lehman reached the same conclusion during the second meeting of the Executive Committee of the ACUE in July 1949, after having given an account of his recent trip to Europe where he had met several senior executives of the European Movement, among them Henri Frenay and Duncan Sandys, stating that "the leaders of the Movement want two things from the United States, moral support and money."16 The massive financial resources poured into the European projects logically became a major stake in the competition in which the various organizations, movements, and leaders struggling for European unity were engaged. In October 1950, the Executive Committee of the ACUE, in the presence of Dulles, Franklin, and Braden, had the project of a European Council of Vigilance (ECV) brought to its attention by a young professor of political economy from the University of Poitiers, Daniel Villey, who had come to New York especially for that purpose.17 The project Villey was proposing to the members of the ACUE originated in the "great deception" caused by the first two sessions of the Consultative Assembly of the Council of Europe in Strasbourg.18 The aim would be to create "some kind of lateral assembly" (which would meet at the same time as the Consultative Assembly) comprised of delegates "selected from prominent political, social and economic leaders outside the official delegates to the Council of Europe." This upper chamber, based on a local and corporative legitimacy—by means of "some kind of mandate" conferred on these "delegates" by European mayors19—can be seen as a direct response, mainly coming from the ranks of nonparliamentary economic and intellectual elites, to the institutionalization of the Council of Europe. One month earlier, a meeting organized in coordination with André Voisin, one of the main leaders of a movement called La Fédération—a very active supporter of the corporatist reforms of the Vichy Regime (Cohen 1999)—had brought together various representatives of the Socialist Movement for the United States of Europe (SMUSE), the Nouvelles Équipes internationales (NEI), and the European Union of Federalists (EUF), to create an international organization committee for the ECV, of which Henri Frenay became the chairman.20 The founder of the Resistance movement Combat, with whom Dulles had been in regular contact since Berne, Frenay was one of the main leaders of the EUF (Belot 2003). This committee gave its mandate to Villey to canvass the U.S. funding partners of the EM. In fact, before Dulles and Braden, Villey rapidly came to the main purpose of his visit: "Now comes the money question. My European pride would prefer, of course, not to have to speak about it here, but it is simply impossible for us to carry out the enterprise without your help—whose generosity and sympathy we have already experienced."21 Villey submitted a minimum budget of $214,000 (75 million French francs)22 and asked the ACUE for an immediate payment of $100,000 before concluding: "The proverb says, 'Help yourself and God shall help you.' The Marshall plan changed the order of things and said, 'America shall help Europe first so that Europe can help herself after being reconstructed.' I am asking you to apply the principle of the Marshall plan".23 During the conversation that followed, Dulles asked what Paul-Henri Spaak (who had succeeded Sandys as chairman of the EM) might possibly think of such a project. Villey replied that Frenay had met Spaak two days before and that, although he could not say so publicly, Spaak supported this initiative without reserve. Villey was then asked to leave the room. Braden immediately stated that he had contacted Georges Rebattet (now replacing Retinger as secretary general of the EM),24 who had confirmed Spaaks' approval to him. And, while Dulles was wondering about which channel the funds might move through, Braden answered that they could be transferred by means of the EM, the EUF, or directly via Christian Monnier (senior executive of the bank Neuflize & Schlumberger and treasurer of the French section of the EM) who was also in favor of the project. The Executive Committee of the ACUE then decided "to support the Committee of Vigilance to the fullest possible extent, to send as much money as possible immediately, and more as soon as it could be obtained".25 LAWYERS IN ACTION: THE EUROPEAN CONSTITUTION AS A CATEGORY OF LEGAL EXPERTISE Regardless of the immediate successes or failures of this initiative (on the second day of the meeting of the ECV, Villey unsuccessfully asked all the members of the Consultative Assembly to join the members of the ECV in a European constituent assembly), it was in the context of the ECV that the first "committee of lawyers" met in 1951, soon proving to be a "matrix" in the subsequent mobilizations to convening a constituent assembly and drafting a European Constitution. Chaired by Fernand Dehousse, professor of international law at the University of Liège, but also senator, member of the EUF, and of the Belgian Socialist Party (PSB),26 this committee was
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