The ombre spirituel of Statehood in the European Union:
Reflections on Nikos Scandamis' Essay
L'Etat dans l'Union européenne: Passion d'un grand acteur
Johan van der Walt
Professor of Philosophy of Law, University of Luxembourg
Nikos Scandamis' essay L'Etat dans l'Union européenne: Passion d'un grand acteur suggests the EU has flayed the Westphalian Leviathan. It has laid its dark insides bare to relentless scrutiny. But perhaps it could only do so by appropriating these dark insides for itself. The ombre spirituel that Schmitt associated with sovereign statehood does not seem to have disappeared like the rest of nationalistic mists before the rising sun of European integration. It has simply shifted along with the pretensions of this rising sun. The market place has in broad daylight become the source of a new shadow. This response to Scandamis argues that the CJEU, the principal agent of EU integration since its decisions in Costa v ENEL and Van Gend & Loos, has simply taken over the many ombres spirituels of the Member States in the form of one cloudy jurisprudence that allows for little democratic transparency. True, the EU does not claim to be a sovereign state as yet and it is often said that its goal is also not to become one. In the meantime, however, it pursues its governmental goals in the manner of a sovereign state under the ombre spirituel offered by the obscure jurisprudence of its highest judiciary.