signiﬁcant achievements of the statal system yet supplement it where its shortfalls and
weaknesses are reaching problematic levels. The aim, so to speak, should be a neo-
Westphalian order instead of a post-Westphalian one.
This contribution suggests that confederal arrangements form a prima facie attrac-
tive model for precisely such a complementary approach.2To that end it will be
argued that the confederal form, if properly modiﬁed, holds signiﬁcant potential for
regional integration and for transnational governance in general. This potential has so
far been largely ignored3—not surprisingly so, as confederations are not exactly
known for their effectiveness or longevity. Yet, as will be suggested, it is precisely in
the globalising reality materialising around us that the confederal form may ﬁnally
come into its own. For it is this reality in which the confederal form can evolve in a
way that reduces some of its most intrinsic ﬂaws and in which the potential for ﬂexible
and multilevel governance inherent in the confederal DNA can be realised.
A Structure, Approach and Limits
To support and illustrate these claims we ﬁrst turn to the EU in a comparative
perspective to the US. The EU will be comparatively contrasted with two American
benchmarks. On the one hand the EU will be compared with the US Con-
federation, which was established directly after American independence. On the
other hand the EU will be set against the subsequent US evolution into a federate
state (section III). This comparison will demonstrate how the EU has combined a
confederal foundation with some crucial federate reinforcements in its constitutional
superstructure (section IV). Subsequently it will be explored to what extent the
modiﬁed confederal system of the EU may reduce certain key weaknesses of the
classic confederal form (section V). These federate modiﬁcations are then used to
help explain why the EU has survived and relatively thrived so far and to assess the
potential of the modiﬁed confederal form for transnational government more
generally (section V).
Obviously the overwhelming breadth and complexity of the questions and concepts
engaged with necessitates care and modesty in any conclusions drawn. This necessity
is only compounded by the comparative nature—over time, contexts and
disciplines—of the exercise proposed. To the extent possible these pitfalls are
addressed via a careful structuring and limitation of the proposed comparison. They
are further reduced by the explicitly modest aim to only illustrate the prima facie
attractiveness of the confederal form for transnational governance. Nevertheless a
general caveat remains in order here, in addition to the more speciﬁc limitations that
2As Elazar has indicated, it is not a coincidence that ‘With the emergence of permanent multinational
“communities”, of which the European Community is the prime example, we are now witnessing a
revival of confederal arrangements.’ D.J. Elazar, Exploring Federalism (University of Alabama Press,
2006), at 51.
3Understandably the focus has traditionally been more on federate comparisons, in which there is a
rich and apparently reviving tradition. See amongst many others M. Cappelletti, M. Secombe and
J.H.H. Weiler (eds), Integration through Law—Europe and the American Federal Experience, Vol. I (De
Gruyter, 1986); K. Lenaerts, ‘Federalism: Essential Concepts in Evolution—the Case of the European
Union’, (1998) 21 Fordham International Law Journal 746; A. von Bogdandy, ‘The European Union as
a Supranational Federation: A Conceptual Attempt in the Light of the Amsterdam Treaty’, (2000) 6
Columbia Journal of European Law 27; R. Schütze, ‘On “Federal” Ground: the European Union as an
(Inter)National Phenomenon’, (2009) 46 Common Market Law Review 1096.
European Law Journal Volume 19
712 © 2013 John Wiley & Sons Ltd.