Written by ‘Briefings for Britain’
This article was first published in ‘Briefings for Britain’ and we republish with their kind permission.
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[Part one was published here yesterday]
Democratic socialism is made-up of a-number of irreducible principles which have clear implications for practical political action. These principles are:
The ‘rule of law’; and
Equality, solidarity and community.
They stand in contrast to the atomising individualism, indifference to – often the promotion of – commodification and the imperative towards technocracy embodied in neo-liberalism.
If an individual or institution abrogates the principles that underpin democratic socialist politics that individual or institution is, by definition, antithetical to democratic socialism. Over six decades, the Court of Justice has explicitly negated each of the principles listed above, in order to play the role that it has, in building and sustaining the EU’s legal order.
Democracy and democratic culture
The first irreducible principle is ‘democracy’. As the socialist thinker R H Tawney highlighted, democracy is a ‘culture’[iv], based upon citizenship and the inherent equality of people who have the power to decide their political and economic destiny. Tawney was echoing his predecessors in the ‘radical tradition’ of this country (embodied in characters such as Overton and Lilburne, Wilkes, Cobbett and Paine and movements such as the Chartists) which held that political power must lay with the people. It is sometimes referred to as ‘popular sovereignty’. Ultimately it is the principle that the people have the authority to determine their own political and economic destiny, without external constraint.
The Court of Justice has repeatedly shown its contempt for democracy. It has – through its jurisprudence – awarded the EU’s legal order the position of being the ‘supreme law’ for 28 countries and therefore stripped the democratic (and legal) institutions in the member states of their power. This process has been neatly summed up by Court of Justice scholar Alec Stone-Sweet, as a judicial coup d’etat.[v] Echoing Tony Benn’s famous description of what EU membership meant for the UK’s democracy.
Thanks to EU legal supremacy, the technocrats, jurists and lobbyists in and around the EU are able to exploit the vague and open-ended EU Treaties and exercise unaccountable law-making power over swathes of policy areas that member state electorates, assemblies, parliaments and courts cannot prevent, amend or reverse. The result has been a severing of the connection between the electorate and governing institutions i.e. their ability through voting and debate to hold decision makers accountable, change (across both major and minor areas) policy and have their principles and policy preferences, e.g. over ideas of ‘justice’, reflected in the government that governs them.
Consequently, the electorates of the member states have come to live in what might be called ‘residual democracies’. In these traduced polities, their political and legal power only extends to the ‘left-overs’ i.e. those areas of policy that the EU has not yet decided to exercise its supreme legal authority-over and which do not contradict existing EU law and legal principles or that are so obviously outside the purview of the Treaties that it would be impossible for the most activist court to claim they fell under its jurisdiction. These areas are few and getting fewer.
The ‘rule of law’ and democratic socialism
The second principle is the ‘rule of law’. Once described memorably by the radical historian E P Thompson as ‘an unqualified human good’[vi] and by R H Tawney as imperative to securing the primary and essential freedoms of people in a democratic culture.[vii] However, the ECJ – in its role as ‘Master of the Treaties’[viii] – has regularly undermined the ‘rule of law’. Rather than an independent adjudicator ensuring certainty and predictability in the rules, it has acted as a policy-making Star Chamber pursuing political ends. Chasing political goals rather than behaving impartially and predictably and ensuring certainty and stability is the behaviour of a despotic institution.
[To be concluded tomorrow in Part three]
[iv] Tawney, R H. Equality. (1931).
[v] Stone Sweet, A. The Juridical Coup d’État and the Problem of Authority. Vol. 08 No. 10. (2007). P 924.
[vi] Thompson, E P. Whigs and Hunters: The Origins of the Black Act. (1975). P 266. Cited by Cole, D H. An Unqualiifed Human Good: E P Thompson and the Rule of Law. Journal of Law and Society. Volume 28. No 2. (2001). P 182.
[vii] Tawney, R H. Equality. (1931). P 227.
[viii] Alter, K ‘The European Court’s Political Power: the Emergence of an Authoritative International Court in the European Union’ (1996) and Alter, K. ‘Who Are the Masters of the Treaty?: European Government and the European Court of Justice’. (1998). Cited in Alter, K. ‘The European Court’s Political Power: selected essays’. (2010).
Photo by mike-andrews