European Integration, Power-Structures, Law and Democratization in Europes Post-Communist States

Paper for PSA Conference, 1 April 2008, Swansea.

Robert Bideleux, Department of Politics and International Relations, Swansea University, Swansea SA2 8PP. r.j.bideleux@swansea.ac.uk

Introduction This paper contends that the conceptions of liberal democracy, democratization and liberalization which have dominated Western organizations, Western political science and the Western media in recent decades have, for the most part, amounted to little more than crude, mechanistic, teleological and West-centric reincarnations of long discredited conceptions of modernization as Westernization. Democratization and liberalization have predominantly been conceived and promoted as ways of making non-Western states conform to Western political and economic models, prescriptions and templates, often under constant, intrusive and overweening Western scrutiny and tutelage. Similarly, the most widely used and quoted measurements of levels of democracy, democratization and liberalization have primarily involved Western assessments of how closely non-Western states approximate to Western norms and benchmarks, as though the late-modern West represents the most appropriate end-state of human development (blissfully ignoring, among other things, the ecological unsustainability of such an outcome!). The reigning conceptions of democracy, democratization and liberalization have not only failed to give due consideration and weight to many of the paramount problems, needs and potentialities of non-Western societies, including the possibility that their own vernacular forms of democratization may be more appropriate to their problems, needs and potentialities, but also tend to disseminate, replicate or parody some of the worst ills of Western societies. They have tended to reduce democracy to a developmental goal (Wydra 2007: 2). Particularly in the hands of neoliberals and of organizations 1
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like the World Bank, the IMF and the EBRD, this renders their formal and often highly elitist conceptions of democracy merely instrumental to the championing of highly inegalitarian and largely unaccountable neoliberal visions of global capitalism and business-friendly good governance. The dominant Western approaches to democratization, liberalization and marketization have also tended to Orientalize non-Western societies, cultures and states, by characterizing and problematizing them as more exotic, erotic, undisciplined, work-shy and despotic, and less rational, responsive and liberal, than their Western counterparts, and therefore as being in need of quasi-colonial Western tutelage and/or induction into allegedly Western virtues of democracy, liberalism, rule of law and good governance. These somewhat complacent, condescending and ethnocentric attitudes have been very prominent in the ways that organizations such as the EU, NATO, the OSCE, the EBRD and the World Bank have set about promoting democratization, liberalization and marketization in the East Central European, Baltic and Balkan postCommunist states (plus Turkey), both before and after their acceptance into the EU and/or NATO. Many Western official, academic and media analyses and characterizations of these eastern candidates and the major political and economic transformations and challenges which they have been facing have exhibited various forms of know-it-all condescension, arrogance and prescriptiveness, which in turn have frequently been reinforced by blithe presumptions that Western standards, practices and institutional or policy choices provide the appropriate benchmarks or yardsticks against which these countries can be judged and (most often) found wanting. The major problems with such conceptual lenses, presumptions and attitudes arise from: (i) the smug (and mostly unwarranted) underlying assumptions that the self-styled Western liberal democracies have largely resolved or overcome the most taxing challenges of modernity and have become (once-and-for-all) paragons of liberal virtue, good governance and consolidated democracy, supposedly rendering them fit to play the roles of tutors, mentors, minders and boy scouts vis--vis various Oriental aspirants to First World status and/or membership of First World clubs; (ii) the frequently offensive, ignorant or heavy-footed condescension and arrogance of Western European states, officials, politicians and media towards their Oriental neighbours or Oriental Others; and (iii) widespread double standards in the application and enforcement of (arguably) inappropriate criteria and benchmarks, 2
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which in turn have often required these aspirants to strive to meet standards and conditions which have been prescribed unilaterally and very West-centrically and applied far from even-handedly by Western hegemons (whether countries or organizations) and which are widely flouted or only dubiously met or perhaps only dubiously appropriate even in Western Europe and/or North America. (Western tutelage, condescension and double standards vis--vis the Balkans and East Central Europe are treated in more detail in Bideleux & Jeffries 2007a, especially chapters 711; and in Bideleux & Jeffries 2007b, chapter 36. For an analogous account of Turkeys recent experiences, see Aydin 2006. Most strikingly, Dr. Aydin points out that in 1997, when the EU Commission deemed that Turkey had not met the political Copenhagen criteria for eligibility for EU membership, Latvia was deemed to have fulfilled those criteria, even though at that time 28 per cent of Latvias residents did not even have citizenship and only 4 per cent of non-citizens who had the right to apply for Latvian citizenship applied and were naturalized between 1995 and mid-1997 due to obstacles such as the inability to pass the Latvian language and history exam, lack of information, and high naturalization fees. Non-citizens not only had no political rights, they faced several questionable legal restrictions on their employment opportunities The Constitution declared Latvian to be the exclusive state language and all other languages were legally considered foreign Significant restrictions also remained with respect private and public electronic media, hampering the use of minority languages in the public sphere. Furthermore, even at the time of accession [in 2004], Latvia still had not ratified the Council of Europes Framework convention for the Protection of National Minorities. (pp. 1920). Latvia was nevertheless allowed to become a full member of the EU without having substantially remedied any of these alleged and well documented shortcomings, thereby highlighting the EUs preparedness to apply the Copenhagen criteria much less stringently to highly favoured Latvia (and Estonia) than it has done vis--vis Turkey). Fortunately, the still on-going eastward and south-eastward enlargements of the European Union have been contributing to the emergence of a greater Europe which is simply too large and too diverse to remain dominated by those West European countries that have (for far too long) been accustomed to calling the shots, laying down the law, prescribing what is what, and telling others how they should conduct themselves. Other European voices are increasingly demanding to be heard, 3
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even though they are still far from obtaining equal hearings and influence. In future, nevertheless, definitions, standards and criteria of democracy, liberty, law, rights and good governance will increasingly be collectively determined and negotiated by (and between) the various sections of greater Europe, through increasingly open, candid and wide-ranging forms of public deliberation and give-and-take. With luck, this will finally lay the ghosts of the old Europe in which too much has been unilaterally and imperiously decided, prescribed and imposed by Britain and the six founder-members of the European Communities. (Gerard Delanty has published interesting thoughts- on the geopolitical, cultural and inter-civilizational implications of this emerging postWestern Europe see Delanty 2007, Delanty (ed.) 2006, and Delanty 2003). This paper extends and builds upon some conceptualizations of the relative/respective importance and roles of European integration, power-structures and law in the democratization of Europes post-Communist states, which I have put forward in the conceptual framework chapters of The Balkans: A Post-Communist History (Bideleux & Jeffries 2007a: 1-21 and 581-94), in Chapters 34-36 of the second edition of A History of Eastern Europe (Bideleux & Jeffries 2007b: 539-621), and in an article entitled Making Democracy Work in the Eastern Half of Europe (Bideleux 2007). The paper is also a contribution to the conceptual undergirding of East Central Europe After Communism, the provisional title of the third large volume in the trilogy by Ian Jeffries and myself on the Balkan and East Central European states, and to future revisions of our first two volumes.

The Case for Finally Ditching Teleological, Mechanistic, Stagist, Finite and Uni-Directional Conceptions of Democratization

All conceptualizations of democracy and democratization are just transient waystations during endless quests to understand and explain ever-mutating objects of study rather than definitive formulations. The nature, location and appearance of the games being played and their metaphorical goalposts and playing fields, together with the rules and the relative importance of the various players, are constantly and kaleidoscopically shifting in not entirely predictable ways. This stricture is particularly applicable to the study of democracy and democratization, because these are far from being finite quests with known and/or generally agreed routes and destinations. 4
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If this perception is correct, it renders the inherently finite, mechanistic, teleological, stagist and uni-directional theories of democratic transition and democratic consolidation which have dominated democratization studies since the 1980s profoundly misleading, nonsensical and virtually useless. They rest on deeply fallacious conceptions of democratization and indeed of democracy as a clearly identifiable and known destination to which it is possible to transit, and which can then be consolidated. In 1995 Valerie Bunce expressed acute misgivings about the ways in which transitologists who had developed their ideas on the basis of Latin American and Southern European democratization had opportunistically muscled in on the study of post-Communist democratization, undeterred by their relatively superficial knowledge and understanding of the politics, history, cultures, and societies of the Communist states and their successors. She implied that these opportunists had gazed at the post-Communist states through a sui generis veil of ignorance, before proceeding to pontificate on them (Bunce 1995). Their arrogance in this regard parallels the attitudes some western economists have taken when holding forth on the transition to capitalism in eastern Europe, despite knowing relatively little about the region (p. 116). It is therefore not surprising that, with regard to the post-Communist states, transitology proved not very helpful for democratization (Aslund 2007: 312). The world is not the simple place which it would need to be for the mechanistic and a priorist theories and concepts of transitologists and consolidologists to have much bearing on it. According to the systematic and most widely used and quoted cross-national measurements of levels of democracy and freedom published annually by USfunded Freedom House, all eight of the East Central European and Baltic postCommunist states had ceased to be countries in transit to democracy and became consolidated democracies with respectable levels of civil liberties and rights by the time of their entry into the EU in May 2004 (Freedom House 2005: 6, 11, 26, 34). Nevertheless, Freedom House argued that these post-Communist states must continue to deepen and widen the reach of democracy within their borders (p. 11), and that their democracy, civil society, media independence and rule of law ratings (presented on pp. 26-33) were still somewhat below Western European levels, although the remaining gaps or shortfalls were not very large. These outcomes have been widely acclaimed as very creditable and gratifying achievements (see, for example, Clark 2002; Aslund 2007; Millard 2004). 5
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However, the perceived standards or levels of democracy, freedom and rule of law in most of the Balkan post-Communist states have continued to be ranked somewhat below those in Western and East Central European states , while the members of the post-Soviet Commonwealth of Independent States (CIS) were ranked even lower (Freedom House 2003: 700-701; Freedom House 2005: 26-34) .These relative rankings appear to be broadly consistent with the intuitive perceptions of most Western politicians, pundits, government officials, transnational organizations and other interested parties. Indeed, Russia, Belarus, Kazakhstan, the Central Asian states and (to lesser degrees) Ukraine, Moldova, Armenia and Georgia have often been castigated for their highly questionable electoral arrangements, frequent violations of civil liberties and media autonomy, widespread nepotism, endemic corruption, and massive socio-economic inequalities. Most Western specialists on the post-Communist states would probably agree with Anders Aslunds judgement that, while the marketization of the CIS states has succeeded to degrees few people would have considered possible during the mid-tolate 1990s (especially in the wake of the economic crash which occurred in Russia in 1998), the democratization of those states must now be deemed to have failed quite dismally, in large part because of the unwise choices in policy-making and institutional design that were made during the early stages of their transformations, albeit with considerable Western advice and complicity and very meagre Western financial assistance (Aslund 2007: 1-9, 305-313). The title of Andrew Wilsons prizewinning book, Virtual Politics: Faking Democracy in the Post-Soviet World (Yale UP, 2005) very effectively encapsulates the ascendant Western negative characterizations of the illiberal forms of politics and political technology which have come to prevail in most of the CIS states, particularly Russia. This paper in no way suggests that these Western misgivings and the opprobrium directed at most of the CIS states are unwarranted. Nor does it take issue with the reservations expressed by Western observers with regard to the remaining fragility, limitations and shortcomings of democracy, freedom and rule of law in some of the East Central European, Baltic and especially Balkan post-Communist states. It would be difficult to take issue with the many Western and local specialists on democratization in these areas who contend that the politics of most of the CIS states and some of the Balkan states still offer considerable scope for the further strengthening and deepening of democracy, rights, liberties and the rule of law. 6
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Nonetheless, it does appear that most Western evaluations of the democratization that has taken place in Europes post-Communist states rest upon unacceptably complacent, condescending and West-centric comparisons (whether explicit or implicit) between the post-Communist states and the West. In practice, they seem largely to ignore: (i) the large, glaring and widely publicized innate contradictions and deficiencies within the advanced capitalist liberal democracies; (ii) the consequent hazards of using such states as templates or yardsticks against which the levels of democracy and freedom in post-Communist states can safely be measured; (iii) the disutility of the terminology, concepts and assumptions most widely employed in the academic study of democracy and democratization, including the notions of democratic transition and consolidated democracy. As early as 1994, the pioneering transitologist Philippe Schmitter affirmed that, particularly in the West, partisan identifications, habits of self-restraint, trust in institutions, and belief in the legitimacy of rulers have all been persistently and markedly declining, whether measured by attitudes in surveys or behaviour in polling booths or in the streets. The reasons for such declines have been extensively (if inconclusively) discussed: greater physical mobility, higher levels of education, more leisure time, decline in the quality of public education, increasing intellectual disaffection, and so forth. (Schmitter 1994: 68). In a similar vein, Russell Dalton, Susan Scarrow and Bruce Cain have more recently surmised that Over the past quarter-century in advanced capitalist democracies, citizens, public interest groups, and political elites have shown decreasing confidence in the institutions and processes of representative government. In most of these nations, electoral turnout and party membership have declined, and citizens are increasingly sceptical of politicians and political institutions. (Dalton, Scarrow and Cain 2004: 124). Robert Putnam has been putting forward similarly gloomy diagnoses of the serious ills afflicting democracy in America (Putnam 1997, 2000, 2003) and, with others, in other advanced capitalist liberal democracies (Putnam (ed.) 2002 and Pharr & Putnam (eds.) 2000). To this, the eminent liberal legal philosopher Ronald Dworkin has added his own thesis that democracy in America is being wantonly torn asunder by highly polarized political hyperbole (Dworkin 2006). It is relevant to remind ourselves that during the inter-war period democratic regimes were not so much overthrown by anti-democrats as gradually atrophied, 7
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corrupted and dismantled from within, often by politicians and officials who claimed or even believed that they were engaged in struggles to save democracy either from external threats or from itself, from its own lapses, deficiencies and excesses (Linz & Stepan 1978). It would be very complacent to presume that this cannot happen again, especially at a time when many Western liberal democracies are increasingly riven by Islamophobia and anti-immigrant xenophobia (Mudde 2007) and may be teetering on the brink of another 1930s-style economic depression. Furthermore, Samuel Huntington has similarly observed that Threats to third wave democracies are likely to come not from generals and revolutionaries who have nothing but contempt for democracy, but rather from participants in the democratic process With third wave democracies, the problem is not overthrow but erosion: the intermittent or gradual weakening of democracy by those elected to lead it. (Huntington 1997: 8). However, it is hard to see why this seemingly perspicacious perception should only pertain to third wave democracies, if such forms of internal atrophy had been the typical undoing of European (as well as Latin American) democracies during the inter-war years. Western liberal democracy and civil liberties are most threatened, not by terrorism or the various Islamist bogeys routinely vilified by Western states, but by the ever-increasing power of global capitalism, the ever-increasing economic inequalities and concentration of largely unaccountable economic power to which global capitalism continually gives rise, the seemingly inexorable growth of pervasive Big Brother surveillance by Western states (especially in the US and the UK), and the further curtailments of civil liberties that are being repeatedly enacted in the name of the war against terror. Moreover, the (actual and potential) threats and limitations which global capitalism poses to democratic control, accountability, scrutiny, debate and freedoms are every bit as strong, dangerous and insidious in (and for) the advanced capitalist liberal democracies as they are in (and for) the worlds post-Communist states, let alone the worlds less developed countries. It has become a commonplace that so-called democracies are being variously out-gunned, circumvented, outmanoeuvered, subverted or captured by enormously powerful transnational capitalist corporations and networks, whose resources vastly exceed those of Europes democratic states. Such arguments are most often put forward by muck-raking radical investigative journalists such as George Monbiot, John Pilger, and Greg Palast, but also by writers such as Noam Chomsky (2007), Noreena Hertz 8
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(2001) and the eminent liberal democracy-theorist John Dunn. The stark reality is that When any modern state claims to be a democracy, it necessarily misdescribes itself. (Dunn 2006:18). Representative democracy, the form in which democracy has spread so widely over the last six decades, has equipped itself for the journey by making its peace ever more explicitly with the order of egoism, i.e., by accommodating itself to the increasingly undemocratic hegemony of a hugely un-egalitarian global capitalism; and it has won its global near-monopoly as a basis for legitimate rule in a setting which largely contradicts its own pretensions. It remains blatantly at odds with many of the most obtrusive features of existing practices of rule. It still clashes systematically and fundamentally with the defining logic of economic organization. (Dunn 2006: 179, 186-7). Since the advanced capitalist liberal democracies still play host to most of the worlds powerful multinational corporations and remain the mainsprings and chief conduits of the vast and increasingly uncontrollable financial and information flows which routinely run rings around any attempts to maintain democratic control, scrutiny and accountability over the most important loci of economic power and decision-making, it is complacent and nave to suppose that these countries can somehow circumvent or rise above the erosion, dilution and disempowerment of democratic institutions, processes, autonomy and participation which they have inflicted on less developed countries. Furthermore, implicitly or explicitly West-centric conceptions of liberal democracy and freedom are increasingly untenable in a globalized world in which democracy, freedom and human rights are (almost) universally greeted as universal and universally-applicable values. While Westerners are contesting the meaning democracy, they cannot baulk at Muslims or Arabs, among others, doing their own questioning of democracy, its foundations, assumptions and justifications Democracy has to be defoundationalised if it is to be relevant for the multitude of world cultures and peoples, many of whom are striving to found good government in their societies (Sadiki 2004: 2). Even though Western governments and corporations and Western-dominated international organizations are spearheading the growth of surveillance and the erosion of democracy and civil liberties, it is nevertheless conceivable that those same governments and corporations, along with the Western media and Western academics and liberal democrats of all hues and persuasions, are still serious about promoting a 9
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broad range of civil liberties, democratic control, scrutiny, participation and accountability, and respect for human and minority rights as universal or global principles and precepts. Is so, however, these Westerners will have to relinquish their hitherto largely unilateral and virtually exclusive claims to prescribe and conceptualize the precise forms that these desiderata should take and to impose, monitor, police and enforce them unilaterally and purely in accordance with Western perceptions, priorities and tenets. On the contrary, the practical application and interpretation of such principles and precepts will have to become matters for intercultural deliberation and negotiation, to much greater degrees than they have been hitherto. This should not translate into spineless capitulation to the illiberal ideas and claims of militant Balkan or East Central European ethnic nationalisms, Christian, Jewish, Muslim or Hindu fundamentalists, Islamic theocracies (which are actually very rare in and untypical of the so-called Muslim world), and the proponents of specious Asian values as substitutes for civil liberties, democratic control, scrutiny, participation and accountability, and respect for human and minority rights. Westernized Asian writers such as Amartya Sen, Fareeh Zakaria, Tariq Ramadan and Salman Rushdie, as well as the mostly Muslim contributors to the excellent online Muslim World Journal of Human Rights, have strongly argued that the West has no monopoly of liberal, deliberative and cosmopolitan-universalist conceptions of democracy, liberty and rights, and that there is in fact abundant scope for intercultural deliberation and negotiation in such matters. Terry Clark has vigorously argued that the East Central European countries have become fully consolidated democracies in the sense that institutionalist or rational choice theories which have been successfully applied to Western European states can now be appropriately and fruitfully applied to the analysis of their political processes. In this way, they can be incorporated into the mainstream of political science research, instead of remaining consigned to the undignified limbo of transitional status, and he has proposed a new research agenda for political scientists studying the region (Clark 2002). However, it would be much sounder merely to propose that the polities of the East Central European and Baltic states are increasingly convergent with those of the Western European states. Whether this in itself has turned the East Central European and Baltic states into fully consolidated democracies is a moot point, especially if global capitalism is ubiquitously emptying democracy of much of its meaning. 10
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For all these reasons, democratic transition, democratic consolidation and the other uni-directional, stagist, teleological and finite conceptions of democratization which were most strongly in vogue from the 1970s to the 1990s are as profoundly misleading and useless as were the overtly West-centric and (socioeconomically) determinist modernization theories of democratization which they have largely superseded. Open-ended, circumspect and multi-directional conceptions of democratization and democratic deepening are much sounder and more appropriate to the kaleidoscopic and highly uncertain/unpredictable world in which we live. We must especially guard against the teleological temptations to assume that democratic consolidation automatically follows on from so-called transitions to democracy, in much the same way that day follows night. We must also guard against the pitfalls of thinking that (i) democracy has been achieved, completed or accomplished in once-and-for-all forms or ways in the West, or that it can ever be so anywhere; (ii) the chief success indicators of democratization outside the West can be based on how closely it approximates to what is done or has been achieved in the West; and (iii) Western institutions and political procedures and practices can serve as adequate or suitable templates for democratization elsewhere. On the contrary, it is much sounder to see democracy as involving neverending wars of attrition between democratic and anti-democratic forces, within which there is always scope for further deepening, extension and entrenchment of participation, rights, monitoring, control, accountability and scrutiny. All the states which are euphemistically referred to as liberal democracies or representative democracies are in reality various forms of elective oligarchy, and so far no state has managed to get beyond this (Aron 1968: 83; Burnheim 1985; Rancire 2006: 7176). The late Claude Ak, possibly the leading African political scientist of his generation, warned in the 1990s that Western political systems were coming under unrelenting pressure to reconstruct the meaning and practice of democracy in consonance with the rejection of popular sovereignty and an increasingly trivial notion of popular participation. The apparent universalization of democracy is the consummation of this process. Democracy has been trivialized to the point where it is no longer threatening to power elites. Elites are delighted to proclaim their

democratic commitment, knowing that it demands very little of them. Democracy has 11
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been universalized in a highly devalued form The end result is not really democracy. Democracy has been displaced by something else which has assumed its name while largely dispensing with its content. Liberal democracy has atrophied in a long process of devaluation and political reaction, in which it has lost its redeeming democratic elements (Ak 1995: 79; see also Ak 1997). Nevertheless, he held out the glimmer of hope that Even in the prosperous West, the domination of the state may come under attack, as peoples apparent freedom, expressed in an everexpanding power to choose as consumers, is revealed as illusory in the face of the states increasingly rigorous, ubiquitous control over its citizens, made possible by its mushrooming scientific and technological capabilities. It is by no means clear that anyone will settle for this decivilising state (p. 89). Consequently, as John Burnheim warned long ago, the democratic process calls for continual detailed reflection, speculation, articulation and struggle. We have no assurances of ultimate success. The very criteria of success are continually changing, not arbitrarily, but in the light of new and unforeseeable problems. But by the same token we have no reason to think that we must fail. We have only just begun the task of discovery. (Burnheim 1985: 186-87).

Civil Association:The Chief Saving Graces of Europes Overarching Civil Order Surveying the colossal devastation, loss of life and destabilization afflicting Europe in 1945, few people at that time could have imagined that by 2008 about two-thirds of that same Europe would have become integrated into a law-governed overarching civil order which had tamed, detoxified and domesticated inter-state relations among its own member states and many of the states in adjacent areas (in the European Unions near abroad), or that McDonalds would be selling burgers from the

Atlantic to the Urals. Members of the EU have traveled a long way towards surmounting the deeply ingrained yet profoundly dysfunctional attachments to untrammeled state sovereignty which contributed so much to Europes woes between the 1920s and 1945. Yet the variously termed pooling or sharing of state

sovereignty (and the magnitude of the many other achievements thereby made possible) owes much more to astute, sober and long-overdue perceptions of the dysfunctionality and destructive propensities of Europes previous state systems than to alleged European virtues or complacent and arrogant presumptions of European (civilizational) superiority over other parts of the world. 12
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The momentous implications of Europes burgeoning civil order are being played out most strikingly visible in the newest entrants into the enlarged European Union. These days the main action is taking place in the European Unions

peripheries, rather than its core. That is where Europes future is being decided and shaped. On the eve of the May 2004 eastward enlargement of the EU, the EU Commission claimed that For the acceding countries, the accession process has served as a catalyst for change, accelerating the implementation of complex and difficult political, institutional and economic reforms. The conclusion of the process is a significant achievement that was based on sustained commitment over many years (EU Commission 2004: 4). Since the mid-1990s, the protracted quest for membership of the EU has indeed been the major driver of change in East Central European, Baltic and Balkan post-Communist states. It has been the single most important factor propelling the crucial overarching transformation from the previous prevalence of vertical power relations and vertical power structures towards polities, economies and societies based on the prevalence of horizontal power relations and power structures and power relations. This transformation is what both defines and makes possible the rule of law, substantial equality before the law, limited government, liberal/representative democracy, law-governed civil societies, level playing fields, and rule-governed civil economies. In the East Central European and Baltic states which joined the EU in May 2004, the struggles to fulfil the 1993 Copenhagen criteria and the 1995 Madrid criteria for EU membership helped to foster growing cross-party consensuses on macro-economic policies, privatization, restructuring of institutions and industries, judicial and legal reform, and the promotion and protection of human and minority rights. This in turn helped to promote the rule of law, equal citizenship (equal civil rights and equality before the law), political stability, level playing-fields, and the development of more fully marketized and liberalized economies. The net effect was slowly to restructure and/or re-orientate these countries away from the prevalence of vertical power-relations and power-structures, from the primacy of primordial ethnocultural ties, and from clientelistic and ethnic collectivist conceptions of the polity, by nurturing and strengthening horizontally-structured impersonal ties and civil societies and civil economies based upon limited government and the rule of law. All of this was 13
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inherently complex and far from easy to accomplish. Nevertheless, it has been accomplished to impressive degrees. This transformation, which has both driven and been driven by the quest for EU membership, has made much greater headway in East Central Europe and the Baltic States than it has in the post-Communist Balkan states. This is the fundamental reason why the European Council (meeting of EU heads of state and government) in Copenhagen in December 2002 decided to allow the five East Central European states (Poland, Hungary, the Czech Republic, Slovakia and Slovenia) and the three Baltic states (Lithuania, Latvia and Estonia) to enter the EU in May 2004, along with the considerably more prosperous Republic of Cyprus and Malta. It is also the main reason why the EU allowed Bulgaria and Romania to join in January 2007, although that was more of an act of faith backed by promissory notes. Both states have undergone much more far-reaching transformations than seemed possible as late as 1997, and the incentives and leverage provided by the quest for EU membership played paramount roles in the transformation of power-structures and power-relations in both countries, but both still have a lot of unfinished business in this regard, while the continuing power of organized crime remains a serious limitation on the degree of democratization that has been accomplished thus far in Bulgaria (Bideleux & Jeffries 2007a: 103-123 & 151-182). By contrast, the Western Balkan states drive for EU membership has been seriously hampred by well-founded perceptions that highly clientelistic, clannish, semi-criminalized vertical power relations and power structures have been much more deeply and tenaciously entrenched in these states. It is crucial to recognize the transformative impact of the EU itself, including the very fact of its existence and availability as the basis of an emerging and commodious supranational legal order and civil association in Europe, as well as the strong (albeit fluctuating) drive of the governments and political classes in these regions towards first attaining and then consummating EU membership. Nevertheless, for the sake of historical veracity, we must also lament the woeful degrees to which the EU initially dragged its feet (from 1990 to 1997), the quite breathtaking niggardliness of the economic and technical assistance offered by hugely affluent western European states to their vastly poorer eastern cousins (Germanys comparatively open-handed generosity has been a partial exception to this generalization), the extraordinarily mean and harsh terms on which East Central Europe and the Baltic States were allowed to enter the EU in May 2004, and the 14
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shameful degrees to which the EU and its western European members have engaged in invidiously intrusive, prescriptive, peremptory and patronizing micro-

management of the post-Communist East Central European, Baltic and Balkan states. This tutelage has sometimes assumed quasi-colonial proportions. These criticisms are in no way intended to denigrate European ideals and the European integration project. Europe is being integrated on the basis of a robust overarching legal order and institutional framework which both fosters and makes possible the peaceful and fruitful co-existence of a rich diversity of European cultures and values. The capacity of this legal order and institutional framework to accommodate diversity is the key. Foolish dreams of a more monolithic European identity and the increased homogeneity of culture and/or values would merely be a recipe for stagnation and stultification. Likewise, any attempt to impose homogeneity would merely generate friction, division and strife. Nevertheless, it is very striking how little (rather than how much) the EU and the comparatively prosperous western European states have actively done to help finance and accelerate the transformation of Europes far poorer post-Communist economies and societies and thereby promote real (as distinct from merely formal) East-West convergence and integration within Europe. There is insufficient awareness in the West that the death-throes and aftermath of Communist rule in the eastern half of Europe during the 1980s and 1990s resulted in large increases (rather than reductions) in Europes East-West economic disparities; and that, partly for this reason, but also as a consequence of greatly increased socio-economic inequality and the collapse of the social safety-nets hitherto provided by the former Communist regimes, life has in many ways become much harder (rather than easier) for millions of people in Europes post-Communist states since 1989. The restructuring of polities, economies and societies required by democratization, marketization, liberalization and the quest for membership of the EU has been hugely painful for all but a few people on the make, no matter how necessary and desirable such restructuring might be in the longer term. Unfortunately, the West has done precious little either to alleviate the pain or to accelerate their recoveries. During the mid-1990s the money allocated to East Central Europe, the Baltic states, Bulgaria and Romania under the flagship PHARE programme averaged out at only 10 Ecus (roughly $10 or 6) per person per year for the recipient countries (Mayhew 1998: 17). This would have been just about enough to buy each of the 15
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inhabitants of the recipient countries one modest restaurant meal per annum! Furthermore, these programmes were criticized for possessing weak monitoring systems, duplicating the work of other organizations, and being over-centralized, unwieldy, and constrained by short-term budgets (BCE, April 1995, pp. 37, 44-8). The scale of Western meanness and myopia need to be kept in mind in order to begin to understand the depth of the disillusionment, disenchantment and even bitterness felt by many (perhaps most) inhabitants of Europes post-Communist states towards the West and the EU, not only among unrepentant Communists and antiWestern nationalists, but also (perhaps especially) among those convinced of the necessity and long-term desirability of the massive and arduous transformations which these countries have been undergoing. Reform fatigue has left many profoundly weary or resentful of the long tunnels of hardship through which they have made their way, largely unaided (but much preached-at) by the West. The raw ambivalence of East Central European and Baltic sentiments towards western Europe and the EU were reflected in the distressingly low voter turnouts for most of the referenda on entry into the EU which were held in the East Central European and Baltic States in 2003 and in the even lower voter turnouts for their first elections to the European Parliament on 12 June 2004, just over a month after joining the EU.

Results of East Central European referenda on EU membership, 2003 Country Slovenia Hungary Slovakia Poland Czech Republic Lithuania Estonia Latvia Date 23 March 12 April 16-17 May 7-8 June 13-14 June 10-11 May 14 September 20 September % Yes 89.6 83.8 92.5 77.5 77.3 89.9 66.8 67.0 % No 10.4 16.2 6.2 22.5 22.7 8.9 33.1 32.3 % Turnout 60.29 45.62 52.15 58.85 55.2 63.4 63.4 72.5

Source: Goetz (2005: 268) and FT, 22 September 2002, p. 8

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Voter Turnouts in the European parliament elections, 12 June 2004 New Members Poland Hungary 20.4 38.5 France Germany Netherlands Belgium Italy Older Members 43.1 43.0 39.1 UK Greece Portugal 38.9 62.8 38.7 45.9 49.0 41.1 37.2

Czech Republic 27.9 Slovakia Lithuania Latvia Estonia Slovenia Cyprus Malta 16.7 46.1 41.2 26.9 28.3 71.2 82.4

90.8* Spain 73.1 Austria

Luxembourg 90.0* Finland Ireland Denmark 61.0 47.9 Sweden

* voting compulsory

Source: FT, 15 June 2004, p. 15.

The enormous asymmetries of power and wealth between western Europe, on the one side, and the post-Communist East Central European, Baltic and Balkan states, on the other, have meant that western Europe has persistently been able to get away with its niggardliness and its arrogant, patronizing, intrusive and irksome tutelage towards the new and prospective eastern members of the EU. This has been reinforced by the hard-headed and pragmatic acceptance by the governments and the greater part of the political classes of the post-Communist East Central European, Baltic and Balkan states that they really do have had nowhere else to go. Their only viable long-term option has been to join the EU, even though many feel that their treatment and the terms of entry imposed upon them by the EU-15 have been mean, harsh and humiliating. Indeed, the so-called negotiations for EU membership were nothing of the sort, and the terms of entry were imposed on a take-it-or-leave-it basis by western European states which knew only too well that they had the prospective eastern members over a barrel. In place of authentic two-way negotiation of the terms of entry, the candidates for EU membership had no choice but to transpose the entirety of the so-called acquis communautaire (over 80,000 pages of existing EU rules, regulations and legislation) into their own domestic or national law as rapidly as feasible, with no leeway (other than over the length of any transitions towards full compliance) and with the minimum of contestation or debate. The so-called Madrid criteria of 1995 also required them to develop and to demonstrate the administrative and judicial capacity 17
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to implement and enforce this acquis communautaire. The so-called negotiations involved little more than regular unilateral and subjective assessments by the EU Commission of the degrees to which candidate states had adopted or complied with the acquis and had developed and demonstrated the administrative and judicial capacity to implement and enforce it. There was almost zero give-and-take over the pitifully small net financial transfers which these relatively poor states could expect to receive after accession. Beggars were not allowed to be choosers. Nevertheless, in intensely practical and life-determining ways, it has never been so crucial as it is now to be considered European and part of Europe. Conceptions and meanings of Europe have become increasingly bound up with the ongoing construction of Europe, which is often portrayed as the natural culmination of the European idea and of innumerable projects for its realization, harking back to medieval Christendom, the Renaissance and the Enlightenment. Since the demise of the former Soviet bloc (and with it the notion of a world divided into a Western capitalist First World, a Communist Second World and a formerly colonial or quasi-colonial Third World), membership of the European Union has become all the more important as a badge of acceptance, respectability and First World status. It has become quite literally the chief passport to unrestricted access to European Union product, capital and labour markets, to major life-enhancing opportunities in schooling, higher education, business, mobility, networking and funding. To be able to claim to be European, and to be able to back up that claim with appropriate documentation, has become almost as important as it was to be able to say Civis Romanus sum in Roman times. Perceived and documented possession or nonpossession of a European identity (credentials) and citizenship of a state which is a member of the European Union increasingly determines who is allowed to live and work in the European Union and who is not. This has become a major determinant of the life chances of tens of millions of people, as many citizens of Europes postCommunist states, Turkey and the semi-Europeanized Maghreb states (Morocco, Algeria and Tunisia) have been learning to their cost. The EU now provides an overarching political, economic and legal framework and order for about two-thirds of all Europeans (the exact proportion depending, in large measure, on how Europeans are defined and where Europes outer perimeters are drawn). In the East Central European, Baltic and Balkan post-Communist states, the EU is increasingly the major arena in which the main rules, laws, institutional 18
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frameworks and policy frameworks which set the main parameters for the conduct of European political and economic activity are collectively and consensually negotiated, formulated, enforced and upheld. The European Union can be most accurately characterized as a post-democratic supranational liberal legal order (in a Hayekian sense) or as a supranational civil association (in an Oakeshottian sense), rather than as a democratic project or entity (for further elucidation, see Bideleux 2000, 2001a and 2001b; Hayek 1960 and 1976; and Oakeshott 1962 and 1975). The emphasis is more on how things should be done than on prescribing what should be done. The EU is not merely based upon the rule of law. In essence, it is the rule of law. The rule of law is not merely its chief raison dtre, but also its main modus operandi. The EU is both an expression of and a major contributor to the growth of regulatory governance (Majone 1996) and the judicialization of governance (Stone Sweet 2000). At the national as well as at the supranational levels, decision-making and power Western, East Central and Baltic Europeans are increasingly governed by unelected institutions and appointed (rather than elected) officials, acting in regulatory, judicial or quasi-judicial capacities. Key areas of policy, such as monetary policy and competition policy, have largely been taken out of the hands of elected politicians. In this context, the effects of EU membership on East Central Europe and the Baltic States can and should be regarded as the consummation of the new Members States shift from the age-old primacy of vertical power relations and power structures (buttressed by various forms of ethnic and confessional collectivism, clientelism and mafia-style gangsterism) to an emerging primacy of horizontally-structured civil societies, economies and polities based primarily upon the rule of law, limited government and growing approximations to equality before the law (equal rights and obligations of all citizens). Thus, even though EU membership has necessarily entailed difficult surrenders of some of the hard-won national autonomy and national-democratic control, scrutiny, accountability which the previously Soviet-dominated East Central European and Baltic states gained by breaking asunder the Soviet bloc (or which Slovenia gained by playing a leading role in breaking asunder the Socialist Federal Republic of Yugoslavia), the post-Communist states which entered the EU in May 2004 made enormously valuable compensating gains in doing so. By joining the EU, they locked themselves into a very robust supranational legal order and civil association which is greatly increasing the strength, pervasiveness and durability of limited

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government and the rule of law the lynchpins of liberty and of genuinely liberal forms of democracy and market economy. Even though the EU is riddled with seemingly insurmountable democratic deficits and (for this and other reasons) cannot and should not be regarded as a democratic project or polity, it can confer membership of an immensely valuable supranational legal order which deeply entrenches and greatly extends the remit of the rule of law, limited government and equality before the law on a supranational basis. This increasingly gives all its states and citizens equal rights and equal obligations by placing them under an overarching jurisdiction and a growing body of laws which are equally applicable to all. These are profound long-term gains, vastly more valuable than the relatively trivial and ephemeral agricultural subsidies and structural funds (transfer payments) on which the most attention has mistakenly been focused. The benefits of EU membership ought not to be evaluated primarily in terms of a superficial, short-term and often fallacious economic calculus, as many politicians and academic and media analysts simple-mindedly assume, especially in the UK. Instead, the benefits should be evaluated in terms of the EUs enduringly transformative potential: the ways in which EU membership cumulatively changes national and transnational power relations, power structures, opportunity structures, incentive structures and (most valuably of all for individuals) mobility and life-chances. Therein lies the true greatness of Jean Monnets vision. As his former assistant (and main biographer) the late Franois Duchne was fond of putting it, the internal and external relations of the EU and its Member States have in large measure been domesticated and embedded within a supranational civil (legal) framework (Duchne 1994: 369, 404-6). In using the word domesticated, Duchne meant mainly that a whole range of matters which had previously been dealt with by European ministries of foreign affairs, foreign trade and defence as part of inter-state relations are now being dealt with in the civil and judicial ways that states deal with domestic matters, within a single legal, institutional and policy framework, as if they were living within a single polity. However, Duchne was also simultaneously using the word domesticated in the sense of tamed and made civil or civilian (as distinct from brutish and military). Disputes between the countries which are now members of the EU used to be resolved by the flexing of muscles, by force majeure, and ultimately by going to war. Within the new EU framework and order, by contrast, they are resolved by transnational negotiation and 20
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mediation, by negotiating until solutions which the parties concerned can live with are reached, or, if that is not possible, by going to court ultimately to the Court of Justice of the European Communities in Luxembourg or, on matters outside EU jurisdiction, to the European Court of Human Rights in The Hague. These frameworks have created an unprecedented new supranational civil legal order in Europe and an utterly new civil, juridical and domesticated basis for politics, for relations between EU Member States, and for relations between these states and their citizens. The countries in greatest need of being locked into the EU supranational civil legal order have been the East Central European, Baltic and Balkan post-Communist states. EU membership offers them and the rest of Europe the best hope (conceivably the only hope) of finally overcoming the tensions, grievances, disputes, minority problems, economic problems and geopolitical vulnerabilities which afflicted them more than any other part of Europe during the twentieth century and which dragged them and many millions of other people into two World Wars. Most of the territorial, size-related, minority-related and economic problems facing the post-Communist East Central European, Baltic and Balkan states can be mitigated or alleviated but cannot be fully overcome or resolved within the narrow and confining framework of the nationstate. In most cases, the nation-state framework is part of the problem to be solved, rather than part of the solution. For example, most of these states are too small and/or impoverished to offer viable self-sufficient markets and sources of key inputs for their industries, whose development is greatly constrained by being dominated by local monopolists and/or being boxed into their limited national markets. Furthermore, no matter how much effort is made to protect and enhance the rights of ethnic minorities, such minorities are nevertheless bound to remain second or even third class citizens in states which have largely remained ethnocracies states which are quite tenaciously regarded as belonging exclusively to the dominant/titular ethnic group, to be used as the elected representatives of that group see fit. On the whole, unfortunately, democratization has empowered the numerically ethnic collectivities much more than it has empowered ethnic minorities. By contrast, the EU supranational civil legal order and civil association represents and has created a legal framework which is increasingly placing states and peoples of widely differing size, wealth, strength, creeds and ethnicities on relatively equal legal footings with regard to the ever-widening range of matters that come under EU jurisdiction, such as rights of movement, consumer rights, environmental rights, 21
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gender equality and (above all) the Single Market, which is striving to establish a socalled level playing field. The EU also makes it possible for elected and/or appointed representatives of small states to participate on an increasingly equal footing with those from big states in transnational debates and deliberations on the policies and future development of the EU to degrees that were quite impossible in the old Europe of sovereign states in which the larger states imposed their own interests, agendas and wishes by force majeure and rode roughshod of those of small states. The Low Countries and later Ireland were the first to reap and appreciate such benefits in practice, but they also have particular significance for the new and prospective EU Member States, as most of these are small (the only exceptions being Poland, Romania and potentially Turkey) and relatively poor (the exceptions being Cyprus, Malta and Slovenia). These membership benefits pertain to the EU as it is has evolved in practice, rather to an abstract or unattainable vision of perfection. No useful purpose is served by pretending that the EU can be made much more democratic and egalitarian (or less technocratic and elitist) than it currently is. If the EU were to be made a lot more democratic in the majoritarian sense, enabling the elected representatives of (transitory) majorities to impose their wishes or aspirations on various out-voted minorities, this would allow the large Member States to outvote the smaller ones and some of the vaunted benefits of EU membership for small states would be nullified. Nevertheless, the Member States most tenaciously opposed to the creation of a federal Europe (Britain, Denmark, Sweden, the Czech Republic and Poland) would strongly resist such an arrangement, because a democratized European Union could only be some sort of federation. Conversely, if comprehensive safeguards for the interests, aspirations, cultures and identities of small states were to be built into some kind of EU-wide consociational democracy, in which major decision-making, policy-making and lawmaking would be based on negotiation and agreement between the elected and/or appointed representatives of each of the constituent nations and ethnic groups, this could rapidly become even more elitist than the current arrangements, while severely circumscribing the operation of democratic procedures and most likely becoming a recipe for gridlock or, at the very least, for even slower and more cumbersome decision-making and law-making than at present. Notwithstanding its blatant elitism and glaring democratic deficits, an EU run by unelected appointed officials who are only remotely and indirectly accountable to the EU citizenry probably remains the 22
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only politically viable and operationally effective structure on which all Member States can agree, even if this does not correspond to anybodys ideal arrangement. Furthermore, making any vision of the EU fully operational necessarily entails the creation and acceptance of a technocracy to regulate and administer it. Hoping for an EU without a technocracy is mere wishful thinking. Most of the heated debates about the EUs undeniable elitism and democratic deficits lose sight of the fact that the EUs legitimation and accountability are not primarily democratic. They are procedural (juridical) and functional (performative). The EU is required to conform to procedures which have been negotiated and agreed in advance by a mixture of elected and appointed representatives of the Member States. The EU is judged chiefly by the value and quality of the outcomes it achieves and/or the functions it performs. EU collective decisions are not made by majoritarian democratic procedures (a democratically elected majority imposing its wishes or aspirations on everyone else), nor even in most cases by so-called qualified majority voting (assigning population-based weights to the representatives of each Member State). Indeed, only a small minority of EU decisions are put to a vote at all (Bomberg & Stubb eds. 2003: 51-3; 2008: 53-56). Instead, the EU operates and makes decisions primarily on the basis of highly consensual negotiations between appointed and/or elected representatives of the Member States, who usually continue to negotiate on anything which any Member States consider to be a matter of vital national interest until unanimous agreement is reached on frameworks, packages or compromises which the representatives of all the Member States think they can live with and persuade their governments and parliaments to accept. This is accepted by the Member States, partly because the European Unions main raison dtre is to reach agreement on common procedures, institutions and policies, on ways of doing things in step with one another, and on setting mutually acceptable parameters, chiefly in order to make it possible for these states to coexist with the minimum of friction and mutual impairment, for their mutual benefit, security and prosperity. Contrary to the perceptions in some quarters, the Brussels bureaucracy very rarely imposes decisions, policies, regulations, directives or legislation on the Member States by diktat or on its own initiative, partly because it has little power to do so. Most of the laws, rulings, regulations and directives emanating from the Commission itself merely fill the gaps and iron out defects or inconsistencies in the policies, decisions and legislation collectively and consensually negotiated and agreed between appointed and elected representatives of those same Member States. 23
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The Commissions powers and remit are largely confined to prompting and cajoling the Member States to implement and comply with such policies, decisions and laws. Thus, even though only states which are perceived to be liberal democracies are permitted to join the EU, and even though the EUs supranational civil legal order or civil association provides a juridical and institutional superstructure which is strongly supportive of liberal democracy, liberal market economies, limited government, level playing fields and liberal civil societies at the national and sub-national levels, the EU itself is not itself a democratic entity. The EUs functions and characteristics have much more to do with the rule of law than with democracy as such. It is chiefly by strengthening the rule of law and making it more pervasive as the framework for all political and economic activity that EU membership can help and has helped to consummate the post-1989 transformations of the East Central European, Baltic and (in due course) Balkan states. The development of the EU as a supranational legal order, combined with the effects of globalization, economic liberalization and privatization, has been slowly leading Western Europe back towards nineteenth-century liberal conceptions of limited government and the rule of law based on the maintenance of a legal order whose primary functions are to foster high levels of rule-certainty, level playing fields, security of persons and property, individual rights and liberties, toleration, stable expectations, and low risk premia and to accommodate pluralistic diversity within robust frameworks of rules which minimize the risks of friction, mutual-impairment and cross-purposes between its Member Statess richly diverse populations, value-systems, belief-systems and interests. The construction of a commodious and cosmopolitan supranational legal framework for Europe has been an ingenious (albeit largely fortuitous or unpremeditated) solution to what Hayek described as the most crucial problem of political organization, namely how to limit the popular will without placing another will above it (Hayek 1973: 6). The EU polity is not a form of democracy; and, in view of its inexorably increasing size, complexity, multiple veto-points, and lack of either a well developed European public sphere or a finite and well-defined European demos, it is also hard to see how it could become one. However, even if the EU cannot be a democratic polity in itself, it is also not a form of dictatorship or authoritarian regime and it is incapable of becoming one, if only because it would be incapable of continuing to function under such forms of governance. The surest safeguard is that there is no viable alternative to 24
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highly consensual, negotiated, consultative and law-based governance in the EU. Any departure from that would almost immediately cause it to seize up and/or spontaneously fall apart. Furthermore, the existence of the EU acts as a robust and commodious overarching institutional shell which helps to protect and expand an increasingly wide range of civil, political, social, economic rights and whatever scope there still is for various forms and degrees of democratic control, scrutiny, accountability, debate and participation at lower levels in Europes emerging system of multi-level governance. It thereby helps to maintain considerable degrees of European control over what happens (or does not happen) in European states which would otherwise be much more divided, powerless and defenceless in the face of formidable and largely unaccountable transnational corporations and global market forces. The EU is far from being most peoples ideal form of polity, but it offers the most effective safeguards for civil governance, the rule of law and a wide range of rights and freedoms that Europeans can hope to achieve in the circumstances in which they find themselves. Consequently, integrating as many of Europes post-Communist states as possible into this new order is the most important and effective contribution that Western Europeans can make to the further strengthening and deepening of the remarkable transformations which those states have accomplished largely by their own efforts.

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