International legitimacy, law and the future of European/American relations
What exactly is legitimacy when applied to the actions of nations, their alliances, and such international institutions as the United Nations? Does the size or number of agreeing parties to a specific course of action decide that action's legitimacy? Are there degrees of legitimacy? Is it like "grace"; you either have it or you do not? Or is it analogous to pornography: nebulously defined until hard specific facts elicit subjective opinion pro or con towards a final judgment?
Has the U.S. participated in illegitimate acts by going into, Granada, Kuwait, Iraq, or its invasion of Fortress Europe in June 6th of 1944? In thinking about this I come to the conclusion that legitimacy stems not from the agreement of interested parties but from its intended result and moral implications. Yes, it would seem the end legitimates the means. During the Cold War the American responsibility for safeguarding Europe against international communism lent justification even to questionable U.S. policies. Using the former criteria, Hitler's "Final Solution", in light of the lack of active disagreement (therefore implying passive agreement) of even the Pope at the time, might be deemed legitimate.
Secondly, is the pursuit of International Law valid or is it similar to that of the Holy Grail; a superlatively wonderful and romantic quest designed for modern day Don Quixotes doomed to Sisyphean disappointments? What is law but a body of knowledge derived from and generously influenced by a specific culture in which another commonality is the sharing of a regional experience? Is it realistic to expect such common ground between such diverse cultures as France and China, Germany and Saudi Arabia, or even Europe and America? Are there Enlightening timeless Philosophical truths that speak towards such universal concepts that may allow us to realize this much sought goal?
Regarding the American/European alliance, perhaps European craving of international institutions and law implies their failure to join nationalism with democracy. Where we see America defining its nationalism through democracy, Europe displays its abhorrence towards what it sees as the evil of popular nationalism. Europe views democracy through the prism of Hitler and Mussolini, both perceived products of this evil.
The differences also extend to opposing concepts of constitutionalism. Americans feel constitutions are political and therefore have their roots in the collective wants and needs of its citizens. This means constitutions are subject to evolutionary change through judicial interpretation and legislative amendment. The American constitution restrains democracy but is simultaneously accountable to it.
European views entail the concept of philosophical elitist opinion employing those universal truths promoted by the Enlightenment of the 1700's. The seemingly paucity of democracy in the EU is not an undesired side occurrence but a primary intended effect designed to insulate these "Universal Truths" from being soiled by popular sovereignty. Doubters need only to look at recent EU constitutional machinations for evidence.
In May of 2004 the EU is due to expand from 15 to 25 members and we see a number of European Foreign Ministers explaining that now the EU needs a constitution "in order to make enlargement work better". But the October 11th edition of The Economist asks:
"Why does an increase in the number of countries in the Union require the creation of a European foreign minister? Or the adoption of a legally binding Charter of Fundamental Rights? Or an expansion of EU powers into the field of criminal law?"
After all, those institutional arrangements were settled by The Treaty of Nice less than three years ago. Indeed, EU heads of government at the time declared of Nice that it "opens the way for enlargement" and "completes the institutional changes necessary for the accession of new member states". They did agree that another inter-governmental conference (IGC) was needed but only to clarify the "delimitation of powers", discuss the status of the Charter of Fundamental Rights, EU treaty simplification, and "the role of national parliaments in the European architecture". So why now has European federalists turned a meeting (IGC) designed merely to tie up the loose ends of Nice into a Constitutional Convention? Further, why has the IGC meeting date been moved up from 2004 to that of 2003? Could it be that it was desirable for the rules of the EU game to be fixed in stone before those new members, who are suspected of clinging to what some present members of the EU view as obsolete views involving national sovereignty, joined and become eligible to voice their opinions? This seems the very same paternalistic attitude voiced by France's Jacque Chirac when he essentially likened a number of Eastern European Nations to "children" and advised them to be quiet when they voiced their opinions on Iraq. But this did not stop France and others from damning the U.S. administrations of this same "We know best, so, trust us" attitude when it came to America's actions in the same crisis.
Simply put, while America's constitutional efforts involve and find legitimacy based upon popular sovereignty buttressed by the evolutionary pressures of legislative change and the selection pressure of judicial review we see, alternatively, that modern European constitutionalism focuses upon high ideals deemed fundamental and universal truths and which are interpreted by elitist philosophical establishments supported by a somewhat deferential citizenry who appears satisfied with a kind of "Trickle Down" type of democracy.
So can such opposing views of constitutional democracy work together in the absence of a common threat? Global terrorism and WMD wielding tyrants seem insufficient forces to pull us together. It is Ironic that the very trend towards support of International organizations and Law had its origins in the mind of that American academic turned world leader, Woodrow Wilson. Now it would seem this meme has seeped into the European conscience but has its evolution been so perverted that the phenotype now so expressed presents itself as an endangered species?