European Solidarity and National Identity: An American Perspective

Peter L. Lindseth 

University of Connecticut School of Law
May 10, 2012

Christian Calliess, ed., 'In Vielfalt geeint: Wieviel europäische Solidarität? Wieviel nationale Identität?', Mohr Siebeck Verlag (Forthcoming) 
Abstract:      
This contribution is based on a lecture given on 10 May 2012 at the Free University of Berlin, as part of a conference entitled "United in Diversity: How Much European Solidarity? How Much National Identity?" The conference proceedings will be published in a collective volume under the same title with Mohr Siebeck Verlag.

The EU clearly has a great deal of functionally and legally autonomous regulatory power — what in Germany you might call 'Hoheitsrechte' — whether legislative, executive, or judicial. These 'Hoheitsrechte' stretch across a vast range of regulatory domains that often penetrate deeply into national legal orders. But what the EU lacks is an autonomous legitimacy commensurate with this autonomous power. The EU may well enjoy several different kinds of legitimacy (technocratic, legal), but what it lacks is autonomous democratic and constitutional legitimacy — that is, the sense that it embodies or expresses the capacity of a new political community (‘Europe’) to rule itself in autonomously democratic and constitutional sense. The absence of this crucial form of autonomous legitimacy bears directly on the questions of national identity and European solidarity that are at the heart of this conference.

Despite the great advances in the integration process, inter-European expressions of solidarity have remained either limited (e.g., Articles 122 or 222 TFEU) or surprisingly grudging in the face of crisis (e.g., the EFSF/ESM). European solidarity has remained constrained in this way precisely because of the pervasive and, in some sense, incommensurable demand on the part of Europeans to preserve certain core democratic and constitutional prerogatives on the national level. This quest to preserve national democratic and constitutional legitimacy derives in no small measure from the persistence of national identity as a core political-cultural reality in the EU, even as regulatory power migrates to supranational bodies.

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