ABSTRACT
At first glance, the development of the European Union (or EU) would appear to present the clearest illustration of the proposition advanced by Carl Schmitt in The Nomos of the Earth (Schmitt 2006) that in post-war political thought and practice, land appropriation has ceased to be a condition precedent of a sovereign order. Instead, political theory would have it that positive legal norms alone can confer upon a polity its constitutive force. For many, the European Union can only be conceived of as a series of
international treaties, supranational institutions or bodies and exemplary judgments of the European Court of Justice. Such legal norms, the novice would be informed, set in train not a new European sovereign order – for European law is thought of in terms of ‘“supremacy”, in stark contrast to “sovereignty”’ (Everson and Eisner 2007: 54) – but rather the integration of member states in Europe, initially over discrete economic sectors, such as coal and steel, which were managed by ‘rational technocrat[s]’ (Lodge 1993: xix) ‘away from the foray of politics’ (Craig and De Búrca 2007: 2). In a no doubt unconscious affirmation of Schmitt’s fear that political and
social systems consisting of ‘norms without a nomos’ (Schmitt 2006: 238-39) would stand in substitution for a more earthly law, Curtin characterized the European Union as a ‘legal system’ ‘constructed’ over several years, the ‘true world-wide significance’ of which was its character as a ‘cohesive legal unit which confers rights on individuals and which enters into their legal systems as an integral part of those systems’ (Curtin 1993: 17). It was ‘law’, not ‘politics’, that created the European Union. So well rehearsed is this point of view that it would be a task of enormous industry to gather references of legal scholars who applaud the prevalence of ‘law’ over ‘politics’ in the complex process of European integration. It is the object of this study to show that it is land appropriation (in the
precise Schmittian sense), and not primarily legal innovations of the European Court of Justice or, as neo-functionalist theories of integration suggest, the
manoeuvrings of political and legal elites, that gives the European Union its constitutive force. The complex rearrangement of the European space which we have
witnessed over the past 50 years or so follows the pattern of the land appropriation of the New World. Conceptually and analytically, the ‘discovery’ of the New World occupies an important place in this thesis, for, as with the development of the ‘new’ Europe, the particular challenge in that historical period was to effect radical constitutional change over territorial spaces that were both populated and governed. Discovery, for Schmitt, is ‘not a timeless, universal, and normative concept’ but rather ‘is bound to a particular historical, even intellectual-historical situation: the “Age of Discovery”’ (Schmitt 2006: 131). The argument presented here is that the constitution of the European Union shares the character of this earlier ‘intellectual-historical situation’. Here, I aim to elaborate the argument that the European Union does
not in fact present a challenge to Schmitt’s claim that ‘land-appropriation precedes the order that follows from it’ (Schmitt 2006: 48), by way of a reevaluation of the function in the emergence of the European Union of the ‘four freedoms’ of the Rome Treaty, still indisputably the core or ‘mainstay’ of the ‘new’ European legal order. In the Rome Treaty that established the ‘common market’ (now more
often referred to as the internal market) we find not what most commentators would have us believe: an attempt at economic integration over closely defined avenues of competence, with the expectation but not the principal objective of political ‘spillover’, but, instead, a proclamation of free movement in connection with ostensibly economic objectives, which, like all similar historical projects with the goal of facilitating movement over a large geographical scale, had the immediately political objective of establishing a new European nomos by the appropriation of lands consisting of the old territories of Europe. Read in this light, the Rome Treaty sits alongside the royal charters, papal bulls and legal concepts or ‘fictions’ (such as the doctrine of terra nullius) which outline the rules and principles according to which land could be appropriated. Thus, any discussion of the European Union as a concrete order must begin with the Treaty of Rome, in which what have come to be known as the ‘four freedoms’ – the free movement of goods, services, workers and capital – were first enunciated. Attempts to locate the origins of the European Union before the assertion of the supreme virtue of the principle of free movement which the Rome Treaty represents – ‘to Charlemagne … to a fourteenth century treatise “on the way to shorten wars” by Pierre Dubois… to pre-or proto-federalist writings by the likes of Kant, Rousseau, Bentham and Saint-Simon’ (Douglas-Scott 2002: 7) – although no doubt of some interest, say little of the European Union’s constitutive moment. As I hope to establish, the ‘freedom of movement of workers’ ‘secured’ by
article 39 of the treaty, the right of self-employed persons either to ‘establish’
themselves in another state by virtue of article 43EC or to ‘provide services’ under article 49EC, encourages and facilitates migration not merely in the interests of economic goals but with the intent of achieving at least one of the objectives that mass migration was designed to attain during the Age of Discovery between the sixteenth and nineteenth centuries. Then, the first objective was simply to extend the territories of a colonial power. The second, especially pertinent to our case, Catherine Hall describes as the ‘destruction and/or transformation of other forms of social organisation and life’ (Hall 2000: 5). The movement of persons, above all other features of the development
of the European Union, first destroyed then began to transform the obsolete economic and political forms characteristic of the arrangement of nation states in Europe. It was the movement of persons that undid the divisions and partitions that marked each territorial space in Europe as a separate nation state and that undid the divisions and partitions endemic to domestic markets. The impact on the transformation of Europe of the ‘negative integration of
the European market’ (Everson and Eisner 2007: 50) by the European Court of Justice in its heyday represented by decisions in cases such as Van Gend en Loos (1963) and Costa v ENEL (1964) pales in comparison to the impact of the movement of persons. As Ferguson rightly observes, even during the golden years of British command over land and sea, neither ‘conquest’ nor ‘commerce’ were sufficient to achieve ‘empire’ (Ferguson 2004: 52). It required the ‘exodus’ of people to ‘change the world’ (Ferguson 2004: 54). Once we begin to accept that the European Union relies for its existence
on modes of sovereign assertion that pre-dated (and made possible) the state system, we can begin to understand the uneven distribution of rights among the people of Europe. I shall attempt to substantiate these claims through an analysis that
seeks to re-evaluate how the free movement of persons and other factors of production figure within the framework of the European Union. I shall pay particular attention to the Single European Act 1986, which is generally thought to have brought a radical change in ideologies underpinning various methods of integration.
