The UK is about to leave the EU with immense repercussions for its citizens. The idea of Brexit as ‘taking back control’ is based on a misconception of global governance, and as a result, Brexit cannot provide its central promise – the UK’s increase in its own regulatory powers.
Sovereignty is the fundamental concept in European and global governance today, and the discourse of sovereignty has been central to the development of the EU: from a free trade agreement, to the customs union, a common market, monetary and fiscal union and finally, to a political union – all while member states’ sovereign powers are diminishing.
Even the ethos of the Union has been described in terms of sovereignty: the EU has been conceived as a new legal order.
It took a ‘special path’ – a ‘Sonderweg’ – in global development, different from all other international organizations or social experiments around the world.
Joseph Weiler argued that the EU is not guided by an ethos of a full political Union in which member states disappear, nor by an ethos of full national sovereignty.
Rather, he argues that the EU has a special ‘Community ethos’, an ethos of self-limitation and of inclusion of the other, an ethos where member states are strengthened, but retain some of their powers.
Once the two, seemingly distinct ethoses as described by Weiler are put on a continuum between individualism and altruism the picture becomes clear.
The full political union reflecting complete altruism and solidarity is at one end; full sovereignty – and indeed, exiting the Union – is at the other, reflecting individualism and self-interest.
The ‘Community ethos’, reflecting commitment to disaggregated sovereignty and inclusion of the other, is in between. This seemingly special ethos is thus nothing more than an ethos of institutional interdependence.
It is a position of institutional centrism that in itself does not say much more than national sovereignty is disaggregated.
The first problem of this ethos is that it ceases to animate the general public of the UK and of the EU at large.
It did animate the general public after the second World War, when Europe was in ruins, but not today, when institutional and social interdependence can be seen at every step of our lives.
The second problem is that despite the professed ethos of inclusion of the other, some form of social exclusion is inevitable, and the EU thus also produces losers.
The third problem is that those who feel excluded, in the UK context particularly those in the periphery of England and Wales, do not have the proper means of articulating this exclusion from globalization without demanding more sovereignty.
In other words, the conventional narrative of the EU’s development gives the language of revolt to the disenfranchised.
If the EU is based on the ethos of disaggregated sovereignty and institutional collaboration, the social revolt will be its mirror image.
In this perspective, an exit from the Union and a demand of full sovereignty is in line with the existing thinking about the EU today – one in which the extent of sovereign powers is central to its development.
What does ‘taking back control’ mean in today’s interdependent world?
Sovereign jurisdictional powers and actual power relationships in society are two different notions that should not be confused.
This confusion leads to two major misrepresentations of power relationships that gives false hope to those who hoped Brexit would help the UK regain its regulatory powers.
First, today, full sovereignty is an illusion, no matter how powerful a country is.
Each legal jurisdiction, global powers included, exists under the constraints of others, but the rules and standards that are produced in Brussels have an immense impact across the world.
The EU is, beside the US, the only jurisdiction which is able to exercise extra-territorial power, particularly in competition law, but also in environmental law, health policy and in other legal fields.
Furthermore, there is the powerful informal impact of the EU regulation: many countries are adopting regulations set by the most powerful jurisdictions, often because doing so makes it is easier to trade with them.
Countries located in the immediate neighbourhood of the EU are particularly unable to ignore its rules and regulations.
Only the US can match this powerful regulatory machinery; and the UK will be under immense pressure to adopt EU or US rules of trade, and will in the regulatory sense be a ‘vassal state’ – a rule taker with limited formal influence.
The second misrepresentation of power is based on the conventional constitutional narrative presenting Brussels in the centre, and the member states, retaining some of their powers, in the periphery.
The focus on power of institutional competences does not give an adequate portrayal of power relationship in the Union.
A different type of legal thinking is needed to adequately portray the EU.
The centre-periphery relationship in the EU should not be understood in terms of institutional competences, but as a macro hierarchical structure of countless smaller hierarchical relationships.
I have been proposing to think about societies in general and about the EU specifically, in terms of a hierarchical struggle.
Law in action is the hierarchical structure as constituted in every moment in time.
This description depicts actual power relationships and takes into account public and private power, economic and social power that goes beyond institutional competences.
What is the centre-periphery relationship in the EU?
Countries of the centre are for example the Netherlands, the UK, Germany; and those of the periphery are Greece, Slovenia, Estonia, Poland, Portugal and so on.
In the hierarchical struggle, there is always harm, and there are structural imbalances in the privileges to harm in the EU.
There is selective understanding: in other words, some privileges to harm are prohibited and others are not.
For instance, companies of the European centre have a legally-sanctioned privilege to harm companies of the periphery, which is allowed under free movement and competition laws.
Those in a hierarchically privileged position have more privileges to harm and thus more power to regulate society.
The UK, by leaving the Union, is giving up some of its hierarchically privileged positions, which in effect means giving up its regulatory powers.
As a result of misrepresentation of power relationships, leaving the EU cannot be ‘taking back control’.
Brexit promises to diminish the UK’s actual regulatory power rather than increasing it.
Furthermore, inasmuch as Brexit is a result of the perpetuation of social inequality, exclusion, frustration and misrepresentation of reality within the UK, the underlying causes for Brexit have not been addressed.
Just like within the EU, there are also structural imbalances and unaddressed privileges to harm internally within the UK.
The people in the periphery of England and Wales are frustrated and voted for Brexit.
Legal thinking, however, gives inadequate tools to people to voice their frustrations, hence they turn to demand greater sovereignty.
The existing legal framework misrepresenting power relationships is reflected in UK’s destructive Brexit policy.
However, it is also unhelpful for those societies and individuals staying in the EU.
Even the ‘left and right’ dialectic does not adequately capture the power relationships in the European Union and in the world in general.
Existing discursive elements do not open up the transformative possibilities of the EU, nor of the UK.
Thus, both in the EU as well as internally in the UK, legal structures that freeze and arrest politics, including the notion of sovereignty, should be reconfigured.
Unjust privileges to harm that some in the global hierarchical structure of society enjoy and others suffer, should be addressed.
The alternative is setting on an analytically false path of promised freedom which addresses none of the social ills, but rather contributes to them.
The misconceptions of governance create false illusions of Brexit and fail to transform our societies.
By Dr Damjan Kukovec, Senior Lecturer in Law, Middlesex University London. This piece was based on a lecture delivered at Harvard Law School.