It is a great pity that the flood of federalist publications which in recent years has descended upon us has deprived the few important and thoughtful works among them of the attention they deserved. One which in particular ought to be carefully consulted when the time comes for the framing of a new political structure of Europe is Dr. W Ivor Jennings's small book on A Federation for Western Europe (1940).--Hayek (1944 [2001] The Road to Serfdom, p. 239.
Despite Hayek's signal boost Jennings's small book has languished in relative obscurity. This despite the fact that scholars are aware that Jennings (1903 -1965) was a member of the Federal Union Research Institute which included Beveridge, Brailsford, Hayek, Jennings, Robbins, Wilson and Wootton, who worked together on proposals for a European union after the war.* Jennings himself was a constitutional lawyer, and educational administrator (also in the colonies).
Hayek's interest in the book has also not received much attention despite the huge interest in Hayek's ideas on European federalism during the last decade. This is prima facie surprising because as Edwin van der Haar (2009) notes, "it is somewhat puzzling that Hayek also recommended the ideas of the socialist Ivor Jennings." (Classical Liberalism and International Relations Theory: Hume, Smith, Mises, and Hayek, p. 108) It is not obvious Jennings is a socialist when you read Jennings' A Federation, and Van der Haar does not provide any evidence for the claim.
However we can state Van der Haar's puzzle in a modestly revised form. In the proposal, Jennings claims that "the constitutional scheme in this book is not suggested as a mans for protecting capitalism or hindering socialism. Nor, on the other hand, it is suggested as a means for attaining socialism." (A Federation Cambridge University Press [1940 (2016)], p. 122). (In my view Jennings here echoes Lionel Robbins' approach to European federalism; and Robbins was not a socialist.) So, the fact that it does not decisively block socialism may well be raise questions about Hayek's endorsement. For, Hayek's account of European federalism is almost uniformly presented as a means to prevent socialism.**
In addition, Jennings foresees the "extension of trade unionism" in the federation. (P. 130) And he echoes Lippmann in claiming that the age of "strict laissez faire" has "long passed." (p. 131) He believe that the choice for or against socialism should be left to democracy because a "constitution which does not enable the people to try experiments which it wants to try is a faulty instrument." (p. 132) It it is worth noting that Hayek himself is explicitly seeing federalism in democratic terms (again, in general commentators tend to notice Hayek's skepticism about democracy, although I think that because of his association with Pinochet this is not wholly unfair). Here's what he says in the passage surrounding the note to Jennings (I left the footnote mark in):
The form of international government under which certain strictly defined powers are transferred to an international authority, while in all other respects the individual countries remain responsible for their internal affairs, is, of course, that of federation. We must not allow the numerous ill-considered and often extremely silly claims made on behalf of a federal organisation of the whole world during the height of the propaganda for "Federal Union" to obscure the fact that the principle of federation is the only form of association of different peoples which will create an international order without putting an undue strain on their legitimate desire for independence.1 Federalism is, of course, nothing but the application to international affairs of democracy, the only method of peaceful change man has yet invented. But it is a democracy with definitely limited powers.--Hayek (1944 [2001] The Road to Serfdom, p. 239.
I think it's little remarked that Hayek identifies federalism with democracy, and that he stresses it's peaceful nature. This echoes Jennings because for Jennings it is a sine qua non that the members of the federation are democratic and that its institutions are democratic (pp. 17 & 94-100).
Democratic critics of Hayek unsurprisingly seize on the equally clear emphasis of limiting the powers of democracy. Although I think in particular context it is clear that by the limitation on democracy Hayek does not mean a rejection of one-man-one-vote (although he is not especially perturbed by the lack of vote for women as, say, Mill and Hobhouse were), but rather rejection of popular sovereignty such that it could override the principle based rule of law/Rechtstaat that Hayek promotes. As Foucault notes, the rule of law and collective planning, which allows a high degree of arbitrary government control, are explicit antonyms in Hayek (and defined in light of each other in The Road to Serfdom). I return to this below.
Now, Jennings is eager to leave the federal states as much leeway as possible to pursue their own policies (this also echoes Robbins). But he also seems to think, if I understand him correctly, that the kind of judicial extension of a commerce clause familiar from the US where nearly everything comes under federal purview is eventually unavoidable in Europe, too(p. 141).
I don't mean to suggest there is nothing to like for Hayek in Jennings' proposal. For it is by no means easy to bring about a socialist revolution in the multi-layered democracy Jennings foresees. For, Jennings clearly envisions a transition to free trade in about ten years (p. 119). And he is very much thinking about this along the functional lines set out by Cobden (and (recall) anticipated in Molesworth), that is, the "generalisation of "most favored-nation" clause...common in commercial treaties." (p. 117). And Jennings is very alert to the fact that there are many means for concealed protection by states, and he provides the federal entity with powers to prevent it (pp. 126-128), including a road map to stable currencies and a common currency (pp. 127-128).
But Jennings' vision of federal free trade is constrained by the need to regulate, "health, morals [!], safety, and general welfare of the citizens." (p. 120)+ Jennings calls these constraints the 'police power' a term he claims then used Stateside. (Readers of Foucault and Adam Smith are familiar with this terminology, which is not uncommon in the eighteenth and nineteenth century, especially before the rise of professional police forces.) I suspect Jennings is here also alluding to the US tenth amendment, but in a substantive (and not pro forma) way.
Before I wrap up, I should explicitly note that Jennings is not committed to a slow functional integration of Europe. Rather, Jennings' vision of federalism is organized around the need to avoid future wars in Europe and caused by European rivalry: "not only should we prevent wars in Europe, but also we should prevent European rivalry from leading to wars elsewhere." (p.6; see also p. 104 where the central importance is reiterated.) And so the lynchpin of Jennings' proposal is a willingness of European states to give up independent armies and even local police forces to the Federation (pp. 101-104).++
Above I emphasized Jennings' commitment to democracy. But as he notes with disarming frankness, "necessarily a federation is a "lawyer's paradise". Disputes arise not only under the law about the law." (92) And while Jennings' builds in many precautions to avoid what we would judicial activism or the politicization of constitutional jurisprudence and judge selection, he also recognizes that this cannot be prevented altogether in a federal structure. As he puts it, "Rule or government by law cannot be placed on a firm foundation unless all disputes are determined by judicial decisions." (144 [emphasis added]) And so, in his plan, the democratic institutions are protected and shaped by a relative restrained jurisprudence that (with the exception of preserving democratic institutions) focuses primarily not on outcomes but on legal form. And so Hayek's fondness for Jennings anticipates (see chapters 3-4 of Quinn Slobodian's Globalists) the ordoliberal ideals for international law.
*I am relying on Pinder 1985-6 here. Or Rosenboim (2017) The Emergence of Globalism (p. 114 n. 55) has a slightly different composition: William Beveridge, Lionel Curtis, A. L. Goodhart, Patrick Ransome, J. Chamberlain, F. Gahan, W. I. Jennings, and K. C. Wheare. (But maybe I am confusing the committees of which there seemed to have been many in this period.)
**Sometimes recent commentators also stress that it is part of a wider attempt for Europeans to hold on to colonies. I think that's clearly right about Jennings' proposal and Hayek's (1939) "The Economic Conditions of Interstate Federalism." But as I argued, recently (recall), this is much less clear, if not wrong, about (1944) The Road to Serfdom.
+Jennings echoes here the kind of views about the proper role of government (except morals) one can find in Lippmann's An Inquiry into the Principles of the Good Society.
++There is an exception for colonial defense.
Thanks for the Pinder link.
It's a shame that the interwar federalists (globalists) never consulted the Federalist Papers or the problems that Madison and co. faced. The globalists would have found their situations to be almost exactly alike, and the "republican remedy" put forth by Madison and co. to be exactly what Europe needed (and still needs).
I think Hayek was correct to pinpoint national sovereignties as a problem that needs to be solved. The 18th century Americans solved this problem with a federal union, and I don't see why this exact same federal union -- which is still in place and which has created a republic powerful enough to prevent conquest by non-republican polities - is not being used to further integrate societies today. That is to say, why can't England or Taiwan or Liberia federate with the 50 American "states" under the Madisonian constitution?
Posted by: Brandon | 06/20/2022 at 09:35 PM