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Law, politics, and pragmatism in the European Union and the United Kingdom - Alarums and Excursions: Improvising Politics on the European Stage by Luuk van Middelaar. Newcastle upon Tyne: Agenda Publishing, 2019, 301 + xviii pp. ISBN: 978-1-78821-172-7 - Britain and Europe in a Troubled World (The Henry L Stimson Lectures) by Vernon Bogdanor. New Haven, CT: Yale University Press, 2020, 176 pp. ISBN: 978-0-30024-561-5

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Alarums and Excursions: Improvising Politics on the European Stage by Luuk van Middelaar. Newcastle upon Tyne: Agenda Publishing, 2019, 301 + xviii pp. ISBN: 978-1-78821-172-7

Britain and Europe in a Troubled World (The Henry L Stimson Lectures) by Vernon Bogdanor. New Haven, CT: Yale University Press, 2020, 176 pp. ISBN: 978-0-30024-561-5

Published online by Cambridge University Press:  20 March 2023

Richard Mullender*
Affiliation:
Newcastle Law School, UK
*
Author email: [email protected]
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Abstract

Type
Current Developments: Book Review
Copyright
Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of The Society of Legal Scholars

Introduction

Lawyers and politicians regularly make responses (more or less effectively) to controversies and crises that, in their distinctiveness, take them by surprise. Where their efforts yield successful outcomes, the view may gain currency that a society has it in its power to move towards a stable set of practical arrangements in which people enjoy enduring security. Here we can talk of a vision that tends in the direction of an end-state. Social flux may, however, encourage a more modest view. The need to use legal and political power in ways attuned to changing circumstances may support the conclusion that societies do well if they succeed in staying afloat on a sea of contingency. Both Luuk van Middelaar in Alarums and Excursions: Improvising Politics on the European Stage and Vernon Bogdanor in Britain and Europe in a Troubled World (The Henry L Stimson Lectures) throw light on each of these views.Footnote 1 Van Middelaar lends support to the view that the aspiration to move towards an end-state (that can quickly take on the appearance of an ideal) is problematic. He also has much to say on how the European Union (a social formation not amenable to analysis as a conventional state) can meet the challenges posed by social flux. This aspect of his exposition has to do with a pragmatic practical outlook. Those who possess this outlook respond to legal, political, economic, and other problems by addressing the question ‘What will work or prove useful in this set of circumstances?’Footnote 2 Pragmatism also has a place in Bogdanor's exposition. He identifies it as occupying a prominent place in the United Kingdom's politico-legal form of life. This explains why he presents his readers (in the immediate aftermath of Brexit) with a sharp contrast between the United Kingdom (UK) and the European Union (EU). The UK emerges from his analysis as a ship of state whose purpose is to say afloat on a sea of contingency, while the EU remains committed to the pursuit of an integrated end-state. On this view, the UK and the EU are two very different social formations. Bogdanor also throws light on a practical outlook or disposition that makes it possible for those who wield legal, political, and other sources of power to respond effectively to the problems generated by social flux. Here, we find a point of intersection between his concerns and those of van Middelaar that it is the purpose of this review to probe.

1. ‘Rules-politics’ and ‘events-politics’ in Europe

While Van Middelaar devotes four chapters of his book to crises with which the EU has grappled over recent years (eg the euro crisis), he traces the process of European integration from its beginnings. He places emphasis on the point that, at the moment this process began, law was the foundation on which it rested.Footnote 3 On Van Middelaar's account, this understanding of Europe's underpinnings encouraged the view that a Brussels-based ‘rule-making factory’ was driving the project of integration forward.Footnote 4 He adds that this is a view that explains the prominent place of the European Commission within the EU. For the Commission understood itself to be ‘the guardian of the treaties’ within which the process of integration would unfold.Footnote 5 Moreover, it encouraged the assumption that law provided a precise set of solutions to the practical problems with which Europe must deal. These points lead Van Middelaar to draw the conclusion that the Commission and the rule-making factory more generally are prone to ‘technocratic overreach’.Footnote 6 As van Middelaar moves along the timeline that has seen Europe integrate, he finds support for the conclusion that this approach to the crises on which he dwells is inadequate. He also identifies 1989 as a hinge moment in the history he relates. When the Berlin Wall fell in November of that year, Europe experienced ‘the return of History’ and began a ‘jerky transformation’.Footnote 7 Under the pressure of circumstances (the fall of the Berlin Wall (a ‘mother shock’) and a later series of crises), it would seek to emerge as an effective political actor in an unstable geopolitical context.Footnote 8

Such effectiveness is for van Middelaar an urgent concern. He uses the crises (or ‘emergencies’ or ‘whirling events’) on which he dwells to impress its importance upon his readers.Footnote 9 On van Middelaar's analysis, the EU has been buffeted by disruptive contingencies since 2008 when the banking crisis ‘erupted’.Footnote 10 He develops this point by reference to the euro crisis (2010–2012), the Ukraine crisis (2014–2015), the refugee crisis (2015–2016), and ‘the Atlantic crisis’ (which comprises both Brexit and Donald Trump's arrival in the White House in 2017). These crises have, according to van Middelaar, propelled the EU into what he calls its ‘Machiavellian moment’.Footnote 11 Here, van Middelaar takes his cues from JGA Pocock, a historian of political thought. Pocock argues that a social formation (eg a polis in ancient Greece or a modern state) faces such a moment when those who govern it recognise the finite nature of its existence.Footnote 12 If a state or a body such as the EU is to endure, it must ‘attempt[ ] to remain morally and politically stable in a stream of irrational events’.Footnote 13

Van Middelaar argues that the EU (long-wedded to the idea that a rule-making factory lies at its centre) had ‘little experience’ of operating in such circumstances.Footnote 14 But ‘[d]oing nothing was not an option’ when, for example, ‘the imminent bankruptcy of a eurozone country threatened to unleash a financial shock wave’.Footnote 15 Consequently, ‘a new politics is emerging’ as a feature of the EU's operations.Footnote 16 This leads van Middelaar to talk (as we noted earlier) of a ‘jerky transformation’. Moreover, he uses Reinhart Koselleck's account of ‘sediments of time’ to bring into focus the rather halting process of change or reorientation he describes.Footnote 17 He sees Koselleck's analysis as relevant to his concerns since developments at two distinct points in time now sit uneasily alongside one another. The first of these points (T1) is the identification of law as the foundation on which the project of integration rested when it began. The second (T2) is the turn towards politics that began as Europe made its response to the collapse of the Berlin Wall. On van Middelaar's account, this turn has, with each of the crises that feature in his exposition, become increasingly obvious. He also argues that, at T1, the architects of integration made a commitment that hampers their successors’ efforts (at T2) to make European integration a project that can withstand the pressures that bear upon it.

Van Middelaar sharpens his account of the developments that took place at these points in time by drawing a distinction between two approaches to politics: ‘rules-politics’ and ‘events-politics’. Within the EU, the Brussels rule-making factory is the centre of rules-politics. According to van Middelaar, politics on this model involves the application of determinate rules to the matters that they regulate (eg market activity). This affords a basis on which to present this approach to politics as ‘impartial’.Footnote 18 Moreover, the fact that it derives authority from the ideal of the rule of law or Rechtsstaat reinforces this impression and encourages its proponents to see it as a means to the end of ‘depoliticisation’.Footnote 19 Van Middelaar also argues that rules-politics ‘can work only’ if ‘history runs along predictable lines’.Footnote 20 By contrast, events-politics is highly attuned to ‘unforeseen’ occurrences and thus affords a means promptly to address matters of urgent concern (eg the crises on which Alarums and Excursions focuses).Footnote 21 This means that those who engage in events-politics are more concerned with ‘decisions’ under time-pressure than they are with existing bodies of norms.Footnote 22 On this point, van Middelaar recognises that his account of events-politics has affinities with Carl Schmitt's analysis of decision-making in a state of emergency.Footnote 23 But he also refers (albeit glancingly) to ‘pragmatic’ decision-making.Footnote 24 This makes sense since those who made decisions during the crises on which he dwells addressed the question, ‘What will provide an effective response to this source of difficulty?’ When we view their efforts in the round, we find a commitment to engage constructively with what the pragmatist philosopher John Dewey memorably called ‘the active urgency of concrete situations’.Footnote 25

On van Middelaar's analysis, the authority of those who engage in events-politics derives, in significant part, from their ability to act ‘at the right moment’ (having ‘judg[ed] the situation correctly’).Footnote 26 This is a point that he develops by reference to the European Council (which is composed of the EU's heads of state and government).Footnote 27 He argues that it has, under the pressure of the crises he examines, emerged (and gained authority) as the EU's ‘crisis tamer’.Footnote 28 Van Middelaar also argues that the European Council is well placed to play this role since its members can be attentive both to ‘the ethic of conviction’ and ‘the ethic of responsibility’.Footnote 29 The ethic of conviction embraces ‘moral principles’ or ends and goods that people take to be matters of enduring concern (eg European integration on the model advocated by Jean Monnet).Footnote 30 By contrast, the ethic of responsibility focuses attention on, for example, contingencies that may make the pursuit of a particular end or goal difficult and that it would be irresponsible to ignore.Footnote 31 Van Middelaar recognises that it is not possible to bring the ethic of conviction and the ethic of responsibility into an entirely harmonious relationship.Footnote 32 From the standpoint of conviction, action prompted by the ethic of responsibility may look like ignoble retreat from ‘ultimate ends’ that point the way towards an ideal end-state.Footnote 33 But those who embrace the ethic of responsibility may see in conviction studied indifference to pressing concerns that call for innovative responses (rather than the application of rules that ‘canalize action’ in well understood ways).Footnote 34 While alive to these points, van Middelaar argues that the European Council can use these two approaches to practical matters in ways that will equip the EU to operate effectively in the midst of contingency.Footnote 35

2. Pragmatism in the United Kingdom

Like van Middelaar, Bogdanor traces the timeline along which Europe has integrated. However, he has a more particular central concern (on which he focuses in the first three of his four lectures). This is the UK's relationship with the project of integration. He notes that, prior to the creation of the European Coal and Steel Community, the UK had the opportunity to ‘assume [the] leadership of Europe’.Footnote 36 He adds that, as the process of integration intensified (with the creation of a common market), and as continental Europeans enjoyed its economic benefits, ‘British self-confidence’ steadily eroded.Footnote 37 Consequently, when (in 1973) the UK secured entry to the European Economic Community (EEC), it did so as a ‘supplicant’.Footnote 38 For it saw in the EEC a means to arrest a process of economic decline that, by the 1960s, had taken on an inexorable appearance. Likewise, it saw in Europe a safe haven after the steep decline in its geopolitical status that followed the 1956 Suez crisis and retreat from Empire in the decades after World War II. But while the UK saw these benefits in EEC membership, Bogdanor observes that its approach to the project it joined was ‘pragmatic’.Footnote 39 By this he means that, ‘[i]f at any time the costs appeared to outweigh the benefits’, there would be ‘popular pressure to leave’.Footnote 40 Here, Bogdanor's account of the UK as a participant in the project of integration has affinities with that of Robert Tombs in This Sovereign Isle: Britain In and Out of Europe.Footnote 41 According to Tombs, the UK's ‘commitment’ to Europe was, at all times, ‘hesitant’.Footnote 42 Whether we talk in terms of pragmatism or hesitancy, the UK emerges as a context in which commitment to the project it joined in the 1970s had, at all times, a revisable appearance. Alongside this point, Bogdanor sets the fact that the UK made ‘two major contributions’ to ‘the development of the European Union’ (support for a single economic market and enlargement of the Union).Footnote 43

While Bogdanor's exposition spans the decades that saw the project of integration get underway and intensify, he focuses attention on the years after 2010 when pressure in Britain to leave the EU became more obvious.Footnote 44 He relates this development to a range of practical difficulties that meant that efforts to ‘fit[ ] Britain into a Continental system’ were ultimately unavailing.Footnote 45 Here, his analysis encompasses constitutional considerations. He observes that ‘perhaps the most fundamental problem’ involved the effort to ‘fit[ ] a … system based on the sovereignty of Parliament’ into ‘a superior system of European law’.Footnote 46 Alongside this consideration, he sets some matters of everyday concern. For example, he notes that accession to the EEC brought to an end ‘the policy of cheap food that had been a fundamental principle [in Britain] since the repeal of the Corn Laws in 1846’.Footnote 47 While alive to concerns of this sort, Bogdanor focuses primarily on the effort to find a place for Britain in ‘a system that already existed’ and that was not amenable to fundamental alteration.Footnote 48 On this topic, he dwells on a collision between the pragmatism that bulks large in British politico-legal life and a fundamental postulate of the European integration process. This is the assumption that Member States of the Community (and later the Union) should conduct themselves in a ‘communautaire’ fashion.Footnote 49 Bogdanor notes that, at the time of British accession to the EEC, the then French President, Georges Pompidou, emphasised the importance of this assumption. He stated that it would require ‘a profound change in British thinking’.Footnote 50 This is because it limits the scope for the pragmatic revision of a current policy agenda in the face of prevailing circumstances. Here, Bogdanor points up a source of tension that van Middelaar brings sharply into focus. Van Middelaar does this by arguing that, with the creation of the EEC, the states participating in the project of integration made a commitment that they understood to be ‘irreversible and indissoluble’.Footnote 51 This commitment came to an end with the adoption (in 2007) of a procedure that makes it possible for Member States to withdraw from the Union.Footnote 52 But, as van Middelaar notes, ‘old habits of perpetuity thinking’ (‘eternal fidelity’ to the project of integration) persist in the EU and they are highly relevant to the source of tension on which Bogdanor dwells.Footnote 53

As well as alerting his readers to this source of tension, Bogdanor examines a cleavage between British voters and their political leaders. He notes that popular support for British participation in the process of European integration reached its ‘high point’ in 1966.Footnote 54 At this time, a survey indicated that over two-thirds of respondents wanted Britain to join the EEC.Footnote 55 But by the late 1960s, and with ‘all three [leading political] parties’ supporting British entry into the Community, a divergence of view between ‘the political class’ and ‘the people’ became apparent.Footnote 56 He adds that, since this time, ‘hostility’ towards Britain's political class has ‘persisted in one form or another’.Footnote 57 While two-thirds of voters supported continued membership of the EEC in the 1975 referendum, Bogdanor argues that the ‘explosive potential’ of the divide between political leaders and people did not disappear.Footnote 58 Moreover, at the time of the 2016 referendum, this potential became a reality that took, on Bogdanor's analysis, a populist form. Here, he sees affinities between the populism he finds in Britain and that on display in a Norwegian referendum in 1972 (in which a majority of voters rejected the idea of entry into the EEC). According to Bogdanor, this referendum was won by a ‘grass-roots movement’ whose members understood themselves to be resisting a pro-European ‘establishment’.Footnote 59

Just as Bogdanor finds a cleavage between voters and politicians in Britain, he finds a divide between a ‘remote’ elite within the EU (eg in the Commission) and the population it seeks to serve.Footnote 60 Moreover, he traces this divide back to the beginnings of the integration project. He notes that Jean Monnet, the most prominent of Europe's founding fathers, ‘hoped to achieve a united Europe without people noticing’.Footnote 61 But, according to Bogdanor, this approach to European integration seems unlikely to yield the results that Monnet and those who have followed in his footsteps have sought to achieve. This is because the Member States seem less and less likely to ‘sacrifice’ more sovereignty to the Union.Footnote 62 He also observes that ‘[a] European demos is not about to be created’.Footnote 63 These points lead Bogadanor to suggest (and here he follows Andrew Duff) that the proponents of integration may have to accept a future in which ‘never closer union’ is a reality.Footnote 64 On this view, the project into which Monnet breathed life is ‘now coming to appear moribund’.Footnote 65 Here, the analysis that Bogdanor offers is, so to speak, diagnostic rather than programmatic. Unlike van Middelaar, he does not seek to throw light on the means (the improvisation that is the stuff of events-politics) that will make it possible for the EU to respond effectively to destabilising contingencies. But while this is the case, the British politico-legal form of life that Bogdanor brings into focus holds clues as to how the EU might operate along the lines contemplated by van Middelaar.

3. Attentiveness to contingency as a disposition

As in the EU, a commitment to law as a source of order and means to the end of justice is a prominent feature of politico-legal life in Britain. Likewise, in the EU and in Britain, we find an understanding of politics as a process that has the purpose of accommodating a range of interests in defensible ways. But politico-legal life in Britain is not reducible to a collection of institutions and practices. It also has a dispositional component to which we can apply the label ‘attentiveness to contingency’. This disposition finds obvious expression in the efforts that those in positions of political power make to identify worthwhile courses of action and potential dangers. The same disposition also finds expression in the efforts they make to mobilise the institutional resources at their disposal aptly in response to these contingencies. This is an approach to government that recognises that societies must, if they are to endure and flourish, be attentive to the contingencies that confront them.Footnote 66 Likewise, it recognises that institutions and practices must be flexible enough to make effective responses to such contingencies possible.Footnote 67 These points afford a basis on which to argue that we find in attentiveness to contingency a practical outlook or disposition that makes possible the practice of events-politics as van Middelaar describes it.

While van Middelaar does not make mention of a disposition in his account of events-politics, he stakes out a position on this topic that presupposes it. This is apparent when he argues that events-politics requires a capacity for ‘effective improvisation’.Footnote 68 Moreover, he makes this capacity vivid by reference to relevant examples. They include resort, in 2011 and 2012, to ‘euro summits’ that operated outside the Treaty on European Union (2007) and that had the purpose of countering ‘the acute threat of contagion across the eurozone’.Footnote 69 Van Middelaar also argues that, if those who engage in improvisation are to enjoy support, they must demonstrate commitment to ‘historical values’ that shape the society in which they act.Footnote 70 Here, he talks of decision-making processes that give expression to ‘root melodies’.Footnote 71 This appeal to root melodies, like van Middelaar's account of improvisation, throws light on the disposition we are seeking to bring into focus. The possessors of this disposition are able to identify means that equip a society to respond to contingencies that threaten its existence as a locus of values that have enduring ‘public’ appeal or ‘resonance’.Footnote 72 In circumstances where they improvise successfully, the relevant root melodies continue to ring out even as new institutions and practices become features of the social scene. This point leads van Middelaar to argue that ‘effective improvisation’ that accords with root melodies is ‘never arbitrary’.Footnote 73 This is because those who engage in it can present their responses to practical problems as processes of reasoned elaboration that ‘invoke values’ that enjoy the support of ‘the public’ in the relevant context.Footnote 74

Unfortunately, some features of van Middelaar's exposition deflect attention from the disposition we are considering. This is a point that applies to his call for the development of a ‘toolkit’ that will equip the European Council and other EU institutions to engage effectively in events-politics.Footnote 75 A further feature of his exposition is more useful but underdeveloped. This is the effort that he pours into seeking to characterise the European Council as the central locus of events-politics within the EU. As well as describing it as a ‘crisis-tamer’, ‘impasse-breaker’, ‘strategist’, and ‘de facto executive’, he identifies it as the EU institution best equipped to tackle those issues that rise to the status of a Chefsache.Footnote 76 By a ‘Chefsache’, he means a matter of urgent concern that only ‘the boss’ can address.Footnote 77 Here, he might have pressed his analysis further (and in a dispositional direction) by drawing on insights from the political philosopher, Isaiah Berlin, and the sociologist, Pierre Bourdieu. Berlin argues that those consummate political performers who are able to respond effectively to pressing contingencies exhibit what he calls a ‘sense of reality’ (or ‘special understanding of public life’).Footnote 78 By this he means the ‘power’ to ‘integrate’ ‘a chaotic flow of experience’ in ways that yield ‘a sense of what will “work”’ in a particular set of circumstances.Footnote 79 To possess this capacity is, on Berlin's account, to be able to mobilise resources so as to respond successfully to crises of the sort that van Middelaar examines. Those who act in this way exhibit a readiness to treat legal and political institutions and practices as ‘capital’ in the sense specified by Bourdieu (malleable resources apt for situational deployment).Footnote 80 To work along these lines requires a pragmatic outlook. This is clearly an outlook very different from the one van Middelaar finds in ‘the Brussels rule-making factory’.

The outlook or disposition that van Middelaar presupposes in his account of events-politics also seems (at least on initial inspection) to make apparent a commitment to what we might call holism. For it involves the apprehension of relevant considerations in the round (prior to the apt deployment of legal, political, and other resources). Here, we encounter a practical difficulty. It is the fate of all societies to plunge into a future where contingencies that it is impossible to anticipate in advance of their occurrence give rise to disruptive effects.Footnote 81 Moreover, even when those in power become aware of unexpected contingencies, they may struggle to understand them. In circumstances of this sort, it is unduly optimistic to contemplate a holistic response. For those whose task it is to respond to such contingencies are playing a game of catch-up – ‘groping’ towards an understanding of the problems they face in contexts that are not, in all respects, ‘transparent’.Footnote 82 This is the terrain that Pocock leads us into when he talks (in highly compressed terms) of ‘an irrational stream of events’.Footnote 83 But while practically significant information is often unavailable to us, this should not discourage us in our efforts to bring into focus the disposition that van Middelaar's account of events-politics presupposes. Reflection on this disposition is certainly a corrective to a complacent assumption that he associates with the Brussels rule-making factory. This is the assumption that those who work within it can put in place a settled body of norms that yield adequate grounds on which to respond to the circumstances that confront them. Van Middelaar finds this complacency to be ‘in evidence’ in ‘the … rule-making factory's … overestimation of itself’ in the crises (or ‘emergency situations’) that feature in his exposition.Footnote 84 As well as offering a critique of such complacency, he argues that ‘experience is more instructive than theory’.Footnote 85 This is a point on which van Middelaar could usefully have said more. However, he says enough to make it clear that he sees the EU as tumbling into a future that presents those who inhabit it with novel experiences from which they can, if attentive, learn much.

On this view of experience, we have it in our power to acquire insights that enable us to stabilise and improve the environments we inhabit. The legal and political institutions and practices that van Middelaar and Bogdanor describe provide support for this point. However, the fact remains that politico-legal entities such as the EU and the UK have to make responses to unforeseen (and potentially disruptive) contingencies.Footnote 86 This prompts a question to which the respective analyses of van Middelaar and Bogdanor have relevance. Should such entities seek to move towards an ideal end-state or should they pursue the more modest aim of staying afloat, more or less satisfactorily, on a sea of contingency? Van Middelaar's analysis makes apparent strong tendencies within the EU to assume that movement towards an ideal end-state is possible.Footnote 87 By contrast, Bogdanor's account of pragmatism as a feature of the UK's relationship with the EU throws light on an order that has the appearance of a ship of state on a sea of contingency. But while we can draw this contrast, we should not allow it to blind us to a root melody, or point of accord, that shapes practical life in each of these social formations. This is a common commitment to an egalitarian philosophy of government. This philosophy seeks to bring into focus the requirements of an approach to government that is attentive to the interests of all those affected by the operations of public institutions (most obviously, the state). It is thus an intensely practical body of thought concerned with what Lon Fuller called the ‘theory of good order and workable arrangements’.Footnote 88 For this reason, it is a body of thought to which both Bogdanor's account of the pragmatism at work in the UK's politico-legal form of life and van Middelaar's distinction between rules-politics and events-politics have relevance. Moreover, since van Middelaar and Bogdanor published their respective analyses, the Covid-19 crisis and the war launched in Ukraine by Vladimir Putin have made apparent this philosophy's enduring significance in contexts afflicted by destabilising contingencies.Footnote 89

Conclusions

The politico-legal entities (the EU and the UK) that feature in van Middelaar's book and that of Bogdanor appear, on initial inspection, to be very different. But on the analysis offered here, they each wrestle with the same practical concerns. They each seek to establish a politico-legal framework that will secure the interests of the people who live within it. They each exhibit institutional commitments to order, justice, and interest accommodation. Each of them also seeks to make apt responses to contingencies that they cannot anticipate in advance of their occurrence. If the EU is to do this effectively, it must, according to van Middelaar, intensify a commitment to improvisation that he finds on display in the European Council's responses to the various crises he describes. While van Middelaar identifies a ‘toolkit’ as the means to engage in such improvisation, he presupposes a disposition that is pragmatic in orientation. Pragmatism is a practical outlook on which Bogdanor's account of British politico-legal life is illuminating. This is a form of life in which the idea of movement towards an ideal end-state does not occupy a secure place. Rather, it encourages the idea that our efforts to promote order, pursue justice, and engage in interest accommodation are made on a ship of state that sits on a sea of contingency. While this is a less than ideal place to be, it is nonetheless one in which an egalitarian philosophy of government is, as in the EU, at work.

Those who seek to respond to contingencies in the way described by van Middelaar have to do so in circumstances where holism (a clear appreciation of all relevant considerations) is a practical impossibility. This is because they will be left flat-footed in the face of contingencies that they cannot anticipate in advance of their occurrence (and that, once they have occurred, may prove difficult to bring into focus). Consequently, their practical guides to action (legal, political, economic, etc) are always incomplete and stand in need of regular revision. However, they have it in their power to stabilise social life in ways that can and do endure along lengthy timelines (think here of the EU's single market and Britain's constitutional arrangements). But they will, nonetheless, have to make some responses to circumstance on an improvisational or pragmatic basis. When we view such responses from the standpoint of rules-politics (or the rule of law), they take on a troubling appearance. For we can trace these responses back to the will of individuals who find themselves in positions of power. But if these responses are rooted in practical impulses that shape the contexts we have been examining, they will accord with an enduring commitment to an egalitarian philosophy of government. This is a point to which van Middelaar lends support in his account of the ‘root melodies’ that shape practical life in the EU. However, it is also a point that those who cleave to rules-politics are unlikely to find entirely reassuring. While this is the case, it may be the best response available to practitioners of events-politics on the model van Middelaar describes. It is certainly a response that is alive to the difficulties that arise when commitments to which they seek to remain faithful and practical pressures that they dare not ignore come into conflict. We can capture the difficulties they face by talking of the ethic of conviction and the ethic of responsibility and the tensions that arise between them. The pragmatic outlook or disposition we have examined here affords a basis on which to make constructive responses to these tensions. But it cannot make them disappear.

References

1 Middelaar, L van Alarums and Excursions: Improvising Politics on the European Stage (Newcastle upon Tyne: Agenda Publishing, 2019)CrossRefGoogle Scholar and Bogdanor, V in Britain and Europe in a Troubled World (The Henry L Stimson Lectures) (New Haven, CT: Yale University Press, 2020)Google Scholar.

2 Pragmatist philosophy forges a link between affirmative answers to questions such as ‘What is useful?’ and ‘What works?’ and truth. See for example James, W Pragmatism: A New Name for Some Old Ways of Thinking (Cambridge, MA: Harvard University Press, 1975 [1907]) p 98Google Scholar (‘[Y]ou can say … “it is true because it is useful”’).

3 van Middelaar, above n 1, pp 156–157 (on ‘[t]he promise of a new era without war’ in which ‘[l]aw would replace power politics’).

4 Ibid, pp viii, 10, and 11.

5 Ibid, p 6. See also p 9 (‘guardian of the regulatory framework’).

6 Ibid, pp xviii and 166 (‘technocratic overreach’).

7 Ibid, pp 162 (‘jerky transformation’) and 171 (‘return of History’).

8 Ibid, pp ix and 162.

9 Ibid, pp 34 (‘emergencies’), and 162 (‘whirling events’).

10 Ibid, p 199.

11 Ibid, p 123.

12 Pocock, JGA Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton: Princeton University Press, 1975)Google Scholar.

13 Van Middelaar, above n 1, p 117 (referring to Pocock, above n 12, p viii).

14 Ibid, p 145.

15 Ibid.

16 Ibid, p 176.

17 Ibid, pp 156 and 165 (where van Middelaar draws on Koselleck, R Sediments of Time: On Possible Histories (Redwood City, CA: Stanford University Press, 2018)Google Scholar).

18 Ibid, p 169.

19 Ibid, p 38.

20 Ibid, p 11.

21 Ibid.

22 Ibid, p 206 (‘Events-politics demands … the ability to take rapid decisions’).

23 Ibid, pp 113 and 289 fn 18.

24 Ibid, pp 54 and 206.

25 Dewey, JContext and thought’ (1931) 12(3) University of California Publications in Philosophy 203Google Scholar at 206.

26 Van Middelaar, above n 1, p 11.

27 Van Middelaar worked as a speechwriter for the European Council's first permanent President, Herman Van Rompuy, between 2010 and 2015: ibid, p ix.

28 Ibid, p 179.

29 Ibid, p 93. The source of the distinction between ‘the ethic of conviction’ and ‘the ethic of responsibility’ is M Weber ‘Politics as a vocation’ in Essays in Sociology (Oxford: Oxford University Press, 1946) p 77.

30 Van Middelaar, above n 1, p 93.

31 Ibid.

32 Ibid.

33 Ibid.

34 Ibid, pp 165–166 (where van Middelaar draws on Dewey, J The Public and Its Problems (Athens, OH: Ohio University Press, 1954 [1927]) p 54Google Scholar).

35 Ibid, pp 114, 231, and 266–267.

36 Bogdanor, above n 1, p 51.

37 Ibid. The Treaty of Rome 1957 created the Common Market (which came into operation in 1958).

38 Ibid, p 50. See also pp 38 and 68.

39 Ibid, p 54.

40 Ibid.

41 R Tombs This Sovereign Isle: Britain In and Out of Europe (London: Allen Lane, 2021).

42 Ibid, p 150.

43 Bogdanor, above n 1, p 83 (where Bogdanor also argues that each of these contributions was due, ‘in large part’, to Margaret Thatcher).

44 Ibid, p 54.

45 Ibid.

46 Ibid, pp 54–55.

47 Ibid, p 56.

48 Ibid, p 61.

49 Ibid, p 68.

50 Ibid.

51 Van Middelaar, above n 1, p 116.

52 Treaty on European Union (2007), Art 50.

53 Van Middelaar, above n 1, pp 117 (‘eternal fidelity’) and 141 (‘old habits of perpetuity thinking’).

54 Bogdanor, above n 1, p 72.

55 Ibid.

56 Ibid.

57 Ibid.

58 Ibid.

59 Ibid, p 76.

60 Ibid, p 119.

61 Ibid.

62 Ibid, p 124.

63 Ibid, p 125.

64 Ibid. (Andrew Duff is a Liberal Democrat former MEP and a proponent of European federalism.)

65 Bogdanor, above n 1, p 127; cf Van Middelaar, above n 1, p 248 (‘The Union is not moving towards becoming a single state …. [I]t is and will remain incontrovertibly a union of states in the plural’).

66 See Sumption, J Trials of the State: Law and the Decline of Politics (London: Profile Books, 2019) pp 100–101Google Scholar (on the capacity of the state in the UK to adapt to ‘major changes in our national life’ and on ‘experience’ as something that ‘counts for a great deal in human affairs’).

67 Ibid, p 34 (where Sumption describes the UK's ‘unwritten constitution’ as ‘infinitely flexible’). See also Sumption, J Law in a Time of Crisis (London: Profile Books, 2021) p 206Google Scholar (the UK's constitution ‘works … because it is adaptable enough to accommodate unforeseen future change’).

68 Van Middelaar, above n 1, p 62.

69 Ibid, p 200 (where van Middelaar notes that the euro summits he describes ultimately came to rest on a distinct legal foundation, the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (2012)).

70 Ibid, p 61.

71 Ibid, p 62.

72 Ibid, p 113.

73 Ibid, p 62.

74 Ibid.

75 Ibid, p 14.

76 Ibid, pp 179 (‘crisis-tamer’), 180 (‘impasse-breaker’), 181 (‘strategist’), and 251 (‘de facto executive’).

77 Ibid, p 178.

78 Berlin, I The Sense of Reality: Studies in Ideas and Their History (London: Chatto & Windus, 1996) pp 1–39Google Scholar and 47.

79 Ibid, pp 46–47. See also p 50 (on ‘the improvisations of gifted leaders’). See also Van Middelaar, above n 1, p 37 (on the European Council's efforts to put in place a European Financial Stability Facility as a ‘tour de force’ of events-politics).

80 Bourdieu, P On the State: Lectures at the College de France, 1989–1992 (Cambridge: Polity, 2014) pp 99 and 331–332Google Scholar (on capital as a set of ‘resources’, including ‘organisational techniques’, that make it possible for those who wield power in a society to respond to ‘difficult situations’).

81 Hart, HLADiscretion’ (2013) 127 Harvard Law Review 652Google Scholar at 661.

82 Berlin, above n 78, p 37.

83 See above n 13 and associated text.

84 Van Middelaar, above n 1, p 72.

85 Ibid, p 71. On experience, see also Sumption, above n 66, p 100.

86 For a critique of the ‘Utopian’ assumption that it may be possible to identify ‘laws’ that afford a basis on which to ‘govern’ social life on an entirely settled basis, see Berlin, above n 78, p 37.

87 While alive to these tendencies, Van Middelaar makes only fleeting references to their most obvious expression, Valéry Giscard d'Estaing's draft Constitutional Treaty: see van Middelaar, above n 1, 220 and 224.

88 Fuller, LLThe forms and limits of adjudication’ (1978) 92 Harvard Law Review 353CrossRefGoogle Scholar at 353 (where Kenneth I Winston, who edited the article after Fuller's death, notes that he applied the label ‘eunomics’ to ‘the theory of good order and workable arrangements’).

89 Since he published Alarums and Excursions, van Middelaar has written on the EU's response to the Covid-19 crisis. See van Middelaar, L Pandemonium: Saving Europe (Newcastle upon Tyne: Agenda Publishing, 2021)CrossRefGoogle Scholar.