BREXIT, democracy and the rule of law

• Published date: 01 January 2021
• Author: Aidan O'Neill
• Date: 01 January 2021
• DOI: http://doi.org/10.1111/eulj.12375

VARIETY

BREXIT, democracy and the rule of law

Aidan O'Neill*

Abstract

This article employs the image of the antisyzygy, the yoking of opposites, as an analytical tool to

understand the dynamic and unresolved tensions built into the very idea of the European Union. It

describes the EU as a forming a supranational constitutional space which does not supersede nation

states, but instead seeks to preserve their specific identities while promoting and protecting the fun-

damental values they are called upon to embody as liberal constitutional democracies. The article

then critically examines constitutional developments in the UK subsequent to its decision to leave

the European Union and suggests that, paradoxically, it may have been the European Union which

held the post-War post-imperial United Kingdom together and, without it and outside it, we may

anticipate the UK's imminent dissolution into its original constituent nations –Brexit leads inexora-

bly to BreUK-up.

“The EEC Treaty has established its own system of law, integrated in the legal systems of the Member

States and which must be applied by their courts.”

1

“[The European Community] is based on the rule of law, inasmuch as neither the Member States nor

its institutions can avoid a review of the question whether the measures adopted by them are in con-

formity with the basic constitutional charter, the Treaty.”

2

“Without vision, the people perish; but he that keepeth the law, happy is he”

3

1|INTRODUCTION

In the Phaedrus, Plato invokes the image of skyborne chariot which is being unsteadily dragged along by two spirited

horses under the charge of a charioteer. One horse seeks to fly up to the highest heavens, to the realm of the ideal

and of infinite possibility. The other horse tries to pull downward, towards solid ground, to the world of contingency

and of practicability, where vision is limited, because the curve of the earth makes it impossible to see what might lie

beyond the horizon. The horses remain yoked together, but each is desperate to pull the chariot in the opposite

direction from the other.

* Advocate and Queen’s Counsel at the Scottish Bar; Barrister and Queen’s Counsel at the Bar of England and Wales. Email: aidanoneill@matrixlaw.co.uk

1

Case 14/68, Walt Wilhelm v Bundeskartellamt,13 February 1969, EU:C:1969:4.

2

Case 294/83, Parti Ecologiste ‘Les Verts’v European Parliament, 23 April 1986, EU:C:1986:166.

3

Proverbs 29:18 (King James Version).

Received: 10 November 2020 Accepted: 11 November 2020

DOI: 10.1111/eulj.12375

50 © 2020 John Wiley & Sons, Ltd. Eur Law J. 2021;27:50–95.wileyonlinelibrary.com/journal/eulj

The Greeks have word for it (they always do). Antisyzygy means the yoking together of contradictory impulses

or drives –whether love and hate, arrogance and abjection, radicalism and reaction, realism and fantasy –which exist

simultaneously in the one entity, battling endlessly without final resolution.

This was Plato's image for the pre-existence of the individual human soul prior to its fall to earth. The charioteer

was reason.One horse represented the betterangels of our nature, a person’sdrive towards virtue –which Platoiden-

tifies as loveof honour and modesty and temperance and the followingof true glory. The otheranimal was, by contrast,

“a crooked lumbering creature with a short thick neck, a flat-face with grey blood-shot eyes, shag-eared and deaf”.It

representedhumanity’s baser instinctsof insolence and pride. The characterand personality which each soul ultimately

embodied in life depended on which, and the extent to which, one of these two beasts had gained the upper hand

before the soul’s inevitable fall to earth and incarnation and birth. The soul in which the nobler horse triumphed was

one which had beheldtruth in the heavens; and so, in life, would becomea philosopher or a creative artist,a poet or a

painter.The soul ultimately dominatedby the low, earth-boundpassions of the unruly horsebecame, instead, a stranger

to the truthand therefore, according to Plato,would end up in life as a sophistor demagogue or, worst of all,a tyrant.

This idea of an internal (and eternal) conflict within the one entity (resulting in sometimes contradictory and

inconsistent responses in the face of crisis) has long been said to capture something of the peculiarly Scottish charac-

ter and situation. It is, perhaps, archetypically to be seen in the many works of imaginative literature which explore

the tensions inherent in the Calvinist/Augustinian doctrine of strict predestinarianism (under which, by God’s grace

and favour, a foreordained elect were saved without merit and all others damned without fault) which dominated

post-Reformation Scotland’s theology, ecclesiology and psychology. Among these works can be numbered:

Shakespeare’sMacbeth, a play first performed in London in 1606/1607 for and before the court of James VI and I

the King of Scots newly acceded to the English throne and written, in part, to explain Scotland to the English; James

Hogg’s novel of 1824, The private Memoir and Confessions of a Justified Sinner; the 1886 novella The Strange Case of

Dr. Jekyll and Mr. Hyde, a work of the Edinburgh lawyer Robert Louis Stevenson and, in the 20

th

century, Muriel

Spark’s 1961 novel The Prime of Miss Jean Brodie.

4

As another Edinburgh lawyer, I suggest that this concept of the antisyzygy is a useful (if somewhat literary) trope

with which to begin to appreciate the development of the concept of the Rule of Law within the European Union,

and the impact which Brexit might have on that concept, both within the continuing EU 27 polity and within the con-

stitutional structure of the United Kingdom outside the European Union, now that the UK has apparently “taken

back control”of its laws, borders and manifest destiny.

In so far as one can capture these things, it might be said that the gradual and continuing development of the

European Union into a distinct supra-national (and indeed post-national) constitutional polity –while also, at the

same time, remaining an association of individual sovereign nation States (Staatenbund)

5

–is one of constant unre-

solved and irresoluble tension, between ever closer union and yet continued distinctiveness, of belonging and not

belonging. The dynamic is one of seeking to acknowledge –as the wars of the 20

th

century made all too evident in

Europe –the experience of the failure of the nation State to be a properly stable space in which peace, justice and

prosperity could be nurtured and maintained, with the need to accommodate and acknowledge –as a matter of

democratic necessity, accountability and legitimacy –the continuing relevance of the nation State as a proper focus

for individuals' loyalty, fidelity and patriotism. The yoke which seeks to hold these unruly national sovereigntist and

European supra-nationalist horses together within the soul of the EU (imagining Europe itself as a Platonic ideal form)

may be said to be the rule of law.

Brexit has resulted in the UK freeing itself from that yoke. In this paper I seek to examine what implications such

‘breaking free’might have for all of us Europeans, both inside and outside the European Union.

4

See: G. Smith, Scottish Literature: Character and Influence, (Macmillan, 1919) and H. MacDiarmid ‘The Caledonian Antisyzygy and the Gaelic Idea’

(1931–32) in D. Glen (ed.), Selected Essays of Hugh MacDiarmid, (Jonathan Cape, 1969), at 56–74.

5

See the “Maastricht Treaty Urteil”of the Bundesverfassungsgericht (BVerG), the German Federal Constitutional Court reported in English as Brunner

v. European Union Treaty [1994] 1 CMLR 57 at 91.

O'NEILL 51

2|ANTISYZYGY IN EUROPE: NATIONAL FAILINGS AND EUROPEAN

INTEGRATION

It might be said that the European Union project was born out of shame and horror (at the evident failings of the

‘modern’European State in the run up to, and during the prosecution of, the Second World War) allied, however, to

an Enlightenment optimism in the perfectibility of man.

6

Certainly, the vast majority of the Member States of the European Union can be characterised as having experi-

enced a complete breakdown in their respective political orders at various times in the course of the twentieth cen-

tury. Their democratic politics seemed to fail them, and often violently, as the briefest surveys of its now 27 Member

States shows.

Constitutional breakdown in 20

th

century European democracies

In the 1930s, France’s political framework under the Third Republic was generally seen to be extremely unstable,

and the political disillusionment that ensued about the failed promises of democracy coupled with the absence of a

deep-rooted democratic tradition might have contributed to the ready capitulation of the French government in face

of German invasion and its willingness to continue to function as the Vichy regime, rather than go into exile.

Italy’s pre-Second World War democratic political institutions collapsed before the challenge of Fascism, and

despite the apparent immediate post-War dominance of national politics by the Christian Democrats, its govern-

ments were hardly monuments to stability.

In 1930s Germany –in the face of a severe economic downturn, currency crises and endemic political violence,

all increased by the financial hardships imposed by, in particular, the reparation and territorial ‘adjustment’provisions

of the Versailles Treaty

7

and which the deliberative and representative democratic processes provided for under the

post-World War I liberal constitutional Weimar Republic seemed powerless to resolve or control –the institutions of

government of the German State were seized by the National Socialist German Workers Party (the NSDAP or Nazi

Party). The Nazis were only ultimately removed from power by the unconditional surrender of Germany in 1945 to

the invading Allied forces. After this defeat, Germany was ultimately partitioned by the victorious Allies into a

Soviet-dominated undemocratic German Democratic Republic in the east, and an avowedly de-Nazified Federal

Republic of Germany in the remainder.

The majority of Austrians appeared to welcome their country’s annexation by, and integration within, the

German Reich in 1938 which did away with their independent national political institutions, regaining these only in

1955 with its StateTreaty and Permanent Declaration of Neutrality which persuaded the Sovietsto withdraw from its

territoryleaving the country to re-inventitself as the first victimof Nazi tyranny and an honestbroker in the Cold War.

The lawful governments in the Netherlands, Luxembourg and Denmark were undermined and overthrown on

the occupation of these countries, by Germany in the Second World War. And the continuing simmering tensions

between French and Flemish speakers as well as the constant allegations of endemic official corruption all point to

something rotten in the state of Belgium.

The democratic processes and institutions of Czechoslovakia (now the two independent EU Member States, the

Czech Republic/Czechia and the Slovak Republic/Slovakia) were ended by Germany’s 1939 invasion and annexation

of the Sudetenland territories, and its democratic institutions were not regained after the War when it, too, was

recognised under the post-War Yalta settlement to fall within the socialist ‘Eastern bloc’.

6

It would not be the only grand political project based on such a union of opposites: the United States of America, after all, at its 1776 foundation, based

its assertion to independence from the colonial power on claims to liberty and equality of all, but yet in its 1789 Constitution made express provision for

slavery and for certain of its people to be treated as chattels, the property of others.

7

See J. M. Keynes, The economic consequences of the Peace, (1919) criticising the post-World War I Versailles Treaty for imposing a “Carthaginian Peace”

which was designed and intended to maintain a post-War economic and political subjugation of the vanquished powers of Germany, Austria-Hungary and

the Ottoman Empire.

52 O'NEILL