Professor Christopher Lord Department of Politics University of Leeds Leeds LS2 9JT Email:
[email protected]
Professeur Paul Magnette Institut d’Etudes Européennes Campus du Solbosch Université Libre de Bruxelles Avenue FD Roosevelt 50 1050 Bruxelles Email:
[email protected]
Notes Towards a General Theory of Legitimacy in the European Union Christopher Lord and Paul Magnette WORKING PAPER 39/02
ESRC “One Europe or Several?” Programme Working Papers
ISSN 1468-4144
The ESRC “One Europe or Several” Programme publishes Working Papers to make research results, accounts of work in progress and background information available to those concerned with contemporary European issues. The Programme also publishes Policy Papers (ISSN1468-4152) listed at the end of this publication. The Programme does not express opinions of its own; the views expressed in this publication are the responsibility of the author/s.
Working Paper 39/02 First published in 2001 by the ESRC “One Europe or Several?” Programme Sussex European Institute University of Sussex Arts A Building Falmer, Brighton, BN1 9SH Phone: +44/01273 678 560 Fax: +44/01273 678 571 Email:
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© Christopher Lord and Paul Magnette
1
NOTES TOWARDS A GENERAL THEORY OF LEGITIMACY IN THE EUROPEAN UNION 1
1.
INTRODUCTION
The legitimacy of the European Union now features amongst priorities for research. It is rare, however, for authors to address the overall problem, rather than particular parts of it. Some recent analysis attempts to surpass this limit by demonstrating that the Union rests on a plurality of legitimating principles (Scharpf, 2000). But this only begs the question of how such principles are related one to another. Are they complementary or competitive? Do some dominate over others? Or is there a kind of ‘reciprocal contamination’ of alternative ideas on how the Union might be legitimated? These are the questions posed by this article with the objective of asking how much scope there is for a general theory of ‘composite legitimacy’ in the EU.
The challenge we seek to pick up might be defined as follows: since members of pluralist societies argue about the ‘right’ and the ‘good’, as well as ‘interests’ and ‘preferences’, their institutions often have to accommodate contradictory, yet equally reasonable, ideas of what is needed for them to be legitimate (Rawls, 1993, p.36). The EU can be expected to be both an extreme example of this predicament, and a laboratory for original solutions to it.
The article begins by asking just how heterogeneous are legitimating principles within the EU. It then discusses three responses to diversity. In ascending order of difficulty, they are exploitation of complementarities between legitimating principles, conflict minimisation strategies, and means of choosing one legitimating principle over another. It is assumed throughout that solutions must work both normatively and institutionally. They have to be justifiable to those 1
This paper results from the project ‘A Democratic Audit of the European Union’, funded by the Economic and Social Research Council, as a Programme Fellowship within the ‘One Europe or Several?’ Programme, Award Reference Number L213272005.
1
whose values are to be combined, compromised, or even over-ruled, and they have to be capable of being operationalised in viable institutions. We challenge the view that heterogeneity, or even conflicts, between legitimating principles need be dysfunctional, and further argue that they can be mediated in ways that respond to one of the oldest dilemmas of political theory (Elster, 1990), identified as follows by Condorcet and Jefferson: how can a society be given a constitution without binding future generations by decisions to which they have not given their consent?
2
2.
WHAT ARE THE VECTORS OF LEGITIMATION IN THE EU?
Each author tends to analyse principles of legitimation in the Union according to his own analytical and normative perspectives, even though these are not always made explicit. In the interests of simplicity, five main approaches can be distinguished from the literature. International legitimacy According to this perspective, the European Union remains an international organisation like any other. Its legitimacy can at best be indirect or derivative (H. Wallace, 1993). It depends on the legitimacy of its component states, its respect for their sovereignty, and its ability to serve their purposes. This conclusion is found in historical studies that claim all authorisations of Union power by Treaty have been dominated by state actors and state preferences (Milward, 1992; Moravcsik, 1998). It has also been formalised in principal-agent models (Pollack, 1997a), according to which the autonomy of Union institutions is not evidence of their independent legitimacy, but of where it suits states to confer limited discretion on a supranational agent. The contract, according to this perspective, is contingent, calculated and controlled. Parliamentary legitimacy An alternative point of view is that the Union requires legitimation by elected parliamentary bodies, as well as its member states (Pescatore, 1974). ‘Dual’ legitimation may be the only way of achieving popular sovereignty in a political system that has both a people (a citizenry that is more or less affected in the same way by the one system of rule for which all are in some sense commonly responsible), and a series of peoples (a citizenry divided along lines of cultural identity ). As J.-M. Ferry puts it, the Union has a ‘double normative reference point: the rights of individuals and the rights of peoples’ (Ferry, 2000, p.10). Indeed, a polity that is territorially segmented, yet focussed on problems that cut across its sub-units, will need representative institutions that can aggregate and
3
deliberate preferences both nationally and transnationally.
On the other hand, the need for dual legitimation may follow from the classic argument for mixed government. If it is unlikely that rational citizens will consent for long to systems of rule that expose them to arbitrary domination (Locke [1690], 1977, p.163), a legitimate Union cannot afford to concentrate power, whether in a cartel of governments or in a parliamentary majority, but must, instead, aim for a balance. Dual legitimation thus has obvious appeal to federalists and those who seek to constitutionalise the Union, though it is worth noting some of the former argue for a parliamentarisation of relations between states themselves (by transforming the Council of Ministers into an upper chamber of a European Parliament), and not just for a sharing of power between a Council of States and an elected Parliament (Hallstein, 1972) Technocratic Legitimacy According to this perspective, the EU would be best legitimated by giving its powers to independent actors who have no incentive to do other than deliver its goals with maximum efficiency. This position implies the following: first, a normative belief that the superior ability of a system to meet citizen needs is grounds for political obligation to it; second, epistemological confidence in a rationality or science of government (positivism); and, third empirical identification of public needs that can only be met by independent European institutions. The latter might plausibly include use of the Union to constrain states from imposing negative externalities on one another, to provide international public goods, and, where they are likely to be afflicted by perverse incentives incentives in the national arena, even to provide domestic public goods. An example of the last is that only at European level can independent central banking be fully decoupled from the influence of a single electoral cycle (Lohmann,).
Over the last ten years, three complementary factors have rekindled interest in technocratic legitimacy. First, the Commission has sought to solve problems of
4
overload by justifying the delegation of certain executive functions. Second, it has sought to free itself for a more political role in a manner that would be mutually exclusive with it remaining in the position of objective regulator. Third, new problems on the political agenda require high levels of ‘scientific’ regulation. Legal and Procedural Legitimacy From one point of view, this is an extension of international legitimacy: the EU is legitimate since it is properly established under Treaties. From another, it fills a gap in technocratic legitimacy. In response to criticisms that independent agencies are means of escaping democratic controls, some authors have defended a procedural conception, according to which the legitimacy of an action rests in its observance of certain formal procedures: transparency, motivation, balance of interests, evaluation, participation of stakeholders and so on (Majone, 1996; De Schutter, 2000). From a third point of view, what gives the Union legal legitimacy is not just the initial contract signed by its member states, or its attentiveness to due process, but its capacity to generate an original normative order that confers new rights and entitlements on citizens, enforceable even against states themselves. Corporate legitimacy Another way of securing the legitimacy of a policy is by negotiating it directly with those whose compliance it needs. Such an approach confers legitimation where it is generally accepted that those exposed to the concentrated effects of public policy should have special rights in the decision-making process. Although corporatist ideas that lay, for example, behind the creation of ECOSOC have little purchase on contemporary economy and society, the Commission has sought new ways of identifying those affected by its policies and including them in their design. This can be seen in the White Paper on Governance and the thinking of the Forward Studies Unit (European Commission,1997 & 2001).
By way of summary, it is useful to add a distinction that cuts across the foregoing
5
legitimating principles. Each principle implies a distinct account of what is needed to make the EU legitimate on the input and output sides of governance (Scharpf 1998). Authorisation by member states (input) and delivery of state preference (output) in the case of international legitimacy. Elections (input) and delivery of voter preferences (output) in the case of parliamentary legitimacy. Expertise (input) and delivery of efficiency (ouput) in the case of technocratic legitimacy. Treaties (input) and the delivery of rights (outputs) in the case of legal legitimacy. Consultation (input) and compliance of organised actors (output) in the case of corporate legitimacy.
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3.
COMPLEMENTARITIES BETWEEN VECTORS OF LEGITIMATION
The foregoing legitimation principles are ideal types. In practice, the Union mixes and matches them. What therefore needs to be understood is the logic of their interaction. The following features are immediately obvious.
First, each principle has elements of both compatibility and exclusivity in its relations with the others. Legal and technocratic legitimacy, for example, presuppose complementarity with other principles, since the first requires a legitimate source of law, and the second an authoritative mandate giver for supranational technocracies. Likewise, corporate solutions may only be legitimate where coupled with means of representing diffuse interests (Pollack, 1997b). Yet, these three principles are also partially exclusive of the others. There can, for example, be no technological legitimacy where international or parliamentary legitimacy inhibits the use of expert knowledge to achieve paretoimproving solutions; nor corporate legitimacy where parliamentary majorities or state preferences are inconsistent with the terms on which sectoral ‘stakeholders’ will co-operate in the delivery of policy; nor legal legitimacy of a ‘new constitutionalist’ kind where member states or parliamentary majorities can reverse rights established by the ECJ.
Second, supporters of the legitimating principles are unlikely to divide along clear cleavage lines. Consider two accounts of international legitimacy. From a Kantian perspective, the Union gains international legitimacy by allowing its component nations to qualify statehood in all its possible forms. Its trick is to constrain the state without creating a new state (Magnette 2000). In contrast, principal-agent approaches imply that acts of delegation from national authorities legitimate the Union in themselves, and regardless of their effects, which will sometimes be calculated to empower the state, other times to constrain it through a process of rational self-limitation.
7
Third, the boundaries of conflict and complementarity between the different legitimating principles are constantly shifting. One reason for this is that while it is hard to justify the legitimation of the Union by lesser standards of, say, public control or individual rights than the state, its method of meeting those standards need to be suited to a non-state and postnational political system. (Lord and Beetham, 2001). It can thus be both leader and laggard, lacking in legitimating instruments familiar to national arenas, yet ahead in others that are as novel to states as they are to the Union itself. Consider two examples. Although it has no text that has been authorised as a constitution, the Union has features of the ‘new’ constitutionalism. Individual rights developed by its Court in response to the use that ordinary citizens make of its law are entrenched to the extent they are unlikely to be removed by Treaty change (Stone Sweet, 2000, p.193). Likewise, backwardness in representative government may be matched by precocity in new forms of governance. Whilst this means foregoing such legitimating qualities as
mandated
political
programmes
and
popularly
dismissable
political
leaderships it, arguably, imparts others, including, an emphasis on paretoimproving, rather than redistributive, policies and on scientifically and nomatively demanding forms of deliberation (Héritier, 1999; Hix, 1998; Joerges & Neyer, 1997; Kohler-Koch, 1996).
But how can different principles be combined in practice? Five kinds of combination are empirically observable in the contemporary Union. (i)
Partitioning of legitimating principles
Different legitimation principles sometimes appear to apply to distinct policy domains. International legitimacy is strongest in the Common Foreign and Security Policy (CFSP) and in co-operation in Justice and Home Affairs (JHA). Technocratic legitimacy is clearest in those aspects of Monetary Union that are handled by the ECB. Corporate legitimacy is important in the regulation of the Single Market. In this perspective, the Union could be conceptualised as a series of separate fields, each corresponding to a particular legitimating principle. In
8
practice, however, even single issue areas turn out to be dependent on a variety of legitimating principles. Moreover, the mix within any single policy domain may change over time. Whereas, the involvement of supranational actors was seen by some as delegitimating in the early days of foreign policy co-operation, the ‘blurring’ of the supranational-intergovernmental divide for which the CFSP is now notorious takes place along the boundaries of two pairs of legitimating principles: the technocratic and the intergovernmental (the Commission has a right of initiative) and the technocratic and parliamentary (the EP has a right of scrutiny and even a power of control where it is asked to sanction the use of pillar one resources for pillar two objectives).
(ii)
Relay of legitimating principles
Rather than apply different legitimating principles to different issue areas, this solution applies them to different stages of the decision-making process. Under the Community method, a body with a claim to technocratic legitimacy (the Commission) determines whether a decision is to be taken at all; it consults a body with corporate legitimacy (Economic and Social Committee) and another with subnational representative legitimacy (Committee of the Regions); a body with international legitimacy (the Council) then amends and approves the decision, often in conjunction with a body with claims to parliamentary legitimacy (the European Parliament); a fourth body (the European Court of Justice) then adjudicates whether the decision is legally legitimate under the Treaties, and within the Union’s rights jurisprudence.
To a certain extent the relay can be assembled to the mutual satisfaction of supporters of each legitimating principle, since each stage corresponds to what the principle in question is good at. Thus a technocratic body restricts the agenda to proposals that meet minimum standards of performance, consultative organs give inputs drawn from their practical knowledge, an international body bargains the needs of member states, a parliament scrutinises and debates, and a court provides judicial review. However, from another perspective the relay creates as
9
many problems as it solves, since it raises the obvious question of the relative weight to be given to each legitimation principle. A simple solution might be to allow each to function as a veto point, so no decision can be taken without satisfying all principles simultaneously. Yet, the legitimacy of this is itself likely to be contested. To defenders of parliamentary legitimacy multiple veto points allow minorities to rule over majorities. To those of technocratic legitimacy, they risk gridlock and substitute pork-barrel politics for the search for optimal solutions using the judgement of independent experts. To those of international legitimacy, they have no validity unless they are traceable to a principal-agent relationship sanctioned by states themselves. It follows that the price of embedding multiple principles of legitimation in Union institutions is that none can prevail in its ideal form. A relay can only be formed between qualified and conditional versions of each principle, with the result that the mix is more likely to be open to continuous renegotiation than it is to be conclusively settled to the satisfaction of all. (iii)
Hierarchy of legitimating principles
Implicit in some analyses is that the EU arranges different legitimating principles into a hierarchy. Thus John Peterson’s distinction between super-systemic (an IGC), systemic (the Community method) and sub-systemic decisions (policy networks, preparatory committees and so on) (Peterson, 1995) might cash out as the following set of legitimating principles: IGC’s with international legitimacy define the basic outlines of the EU’s institutional system: technocratic, parliamentary and legal legitimacy are added at different stages of the Community Method (see last section); and corporate legitimacy is provided by consultative and implementing committees that operate beneath the surface of formally sanctioned decision-making processes.
An hierarchical ordering is, however, even more likely to be contested than a structured sequence of legitimating procedures. Apparent hierarchies are, therefore, likely to turn out on closer inspection to be equilibria between legitimation principles. For example, instead of confirming the superordinate
10
importance of international legitimation, IGCs may only be acceptable mechanisms of political authorisation where those who control them, the Herren der Verträge (masters of the Treaties), do some combination of the following: first, internalise the range of competing legitimating principles into their own preferences and negotiate the latter between themselves, rather than unite to impose a single legitimating formula on the Union; second, rationally anticipate the legitimating principles held by all other actors whose co-operation is needed if they are to achieve their purposes; third, codify practices already developed by custodians of a range of legitimating principles. Thus the TEU (1991) adopted the draft statute for the ECB almost verbatim from a technocratic committee of Central Bankers (Dyson and Featherstone, 1999, p.3), and Amsterdam ratified extensions to the parliamentary investiture of new Commissions that had already been unilaterally adopted by the EP itself (Hix and Lord, 1996). (iv)
Substitutibility of legitimating principles
Adrienne Héritier has usefully introduced the notion that potential sources of EU legitimation may be open to substitution one for another, at least over limited time periods. This will work as long as there are identifiable second -best solutions for each legitimation principles that are not too distant from the original. Thus in Héritier’s own formulation forms of due process (transparency) and direct consultation with users are second best for parliamentary legitimation (v)
Mutual contamination of legitimating principles
Another way in which the EU moves beyond simple co-existence of legitimating principles is through a form of ‘mutual contamination’. The history of the European Parliament has been characterised by a search for reconciliation between international and parliamentary legitimating principles. In the view of some, it has reached a synthesis of the two principles through new forms of deliberation (Costa, 2001). In the case of Monetary Union, a number of authors claimed
to
have
identified
a
contradiction
between
technocratic
and
parliamentary principles of legitimation (Buiter, Busch, Gormley & de Haan,
11
Elgie). Yet, to the contrary, the EP has adapted its methods of parliamentary control to the new form of technocratic power constituted by the ECB (Magnette, 2000b). It attempts to reconcile the independence of the ECB with political responsibility through a process of dialogue between principles of legitimation and political cultures. In so doing, it applies a procedural logic and technocratic reasoning within a framework of parliamentary control. A third example is that new forms of regulation, like the forthcoming “Food safety agency”, conceived as networks of national agencies, attempt to combine international, technocratic and procedural legitimacy.
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4.
CONFLICT MINIMISATION MECHANISMS
In addition, to combining legitimation principles, the Union has developed a variety of mechanisms for minimising conflict between them. The following are just four examples. •
Proportionality doctrines hold that even if there is no objection in principle to sacrificing one value for another, a particular trade off can be challenged and invalidated where it is not the ‘absolute minimum infringement necessary to serve the other value’ (Stone Sweet, 2000, p.98) Proportionality principles are now covered by Treaty declarations, and are often applied by the ECJ.
•
Light touch. Just as legitimation itself is most needed where power is concentrated, so trade-offs between legitimation principles may be least offensive where they are diffused across time or space. Majority voting and co-determination with the European Parliament may, therefore, have been made less offensive to advocates of international legitimation by the incremental nature of their introduction over four rounds of Treaty change since 1987. Likewise, it is hard to believe that if all the rights that have added a further dimension to the EU’s legitimacy as a system of law had been introduced in one go, rather than incrementally, they would not have been
contested
(international,
by
champions
parliament
or
of
other
technocratic),
legitimation each
of
principles
which
they
circumscribe. •
Creative ambiguity. This allows different actors to believe that a policy or institution is legitimate for different reasons. It may, however, presuppose a segmentation of the Union’s stakeholders by audience that is hard to reconcile with other preconditions for legitimation such as deliberation in a shared public space. It certainly requires that real political choices are
13
never crystallised in a way that shatters an illusory compatibility between legitimation principles. •
Disguise. Sometimes Union policies can be made more acceptable to certain audiences if disguised as the outputs of other political systems Thus Union rules may appear more legitimate to Eurosceptic audiences to the extent that they are felt as applications of national law. The Union, however, is quite as likely to lose as it is to gain from attempts by different levels of government to lessen their own legitimacy problems by drawing on the displacement of legitimation problems across arenas. Far from being assured of a free-ride on national legitimacy, its own legitmacy is often exposed to blame shifting from other levels of government, and to the dumping of problems on Union institutions without matching powers or resources.
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5.
CHOOSING BETWEEN LEGITIMATION PRINCIP LES
There will, however, be occasions where conflict between legitimation principles can neither be resolved, disguised nor avoided. In almost all domains of Union action, it is not hard to detect outstanding conflicts. On foreign policy questions, the EP contests the monopoly of international legitimacy. In environmental and public health questions the technocratic legitimacy of expert knowledge clashes with the claims of parliamentarians or organised interests to represent public and societal values. Commercial policy manages to be contested by international, parliamentary and technocratic definitions of legitimacy. In the design of monetary union, successive French Governments have questioned the legitimacy of failing to balance the technocratic qualities of an independent central bank with an ‘economic government’ based on the co-ordination of nonmonetary policies by the Council.
So what can be done if conflict between legitimating principles can neither be resolved nor avoided? A useful typology of options is suggested by Richard Bellamy (2000) which we now adapt and apply to the EU, as follows: (i)
Overlapping consensus
This solution, favoured by Rawls himself, amounts to an agreement to confine the scope of a polity to areas where legitimating principles overlap (Bellamy, 2000, p.201): if a power can be justified from the point of view of conflicting legitimating principles, it may be brought within the competence of the polity; otherwise, it should be left out. This might appear a promising approach for the European Union. Whatever other disagreements its states and citizens have about its legitimacy, they have a shared attachment to democracy, human rights, and the rule of law.
There are, however, at least three difficulties with this argument. First, legitimating principles only overlap in the European arena at a high level of
15
abstraction. So, for example, shared attachment to democratic rule may be accompanied by intense disagreement on whether the Union ought to be a democracy (Bellamy and Castiglione, 2000, p.80) and on what model (Katz, 2001). Second, an overlapping consensus presupposes prior solution of the very problem that the Union needs it to resolve. In framing the notion of overlapping consensus, Rawls assumed an undertaking whose members already have agreed concepts of what is right (fair adjudication) that allow them to deal with their disagreements about what is ‘good’ (substantive values) (Bellamy, p.201). In contrast, both kinds of disagreement are to be found in arguments about what is needed for the EU to be legitimate. The previous two difficulties combine to produce a third: even if the EU is found to have some area of overlapping consensus, there is no guarantee that it will correspond to what is needed to solve collective action problems. Yet, choosing not to choose, may itself diminish a values that some of its states or citizens regard as a precondition for its legitimation. As is often remarked (not least by Rawls himself) a non-decision is a profoundly allocative action which privileges the status quo and its accompanying injustices. Not only, therefore, is an over-lapping consensus an insufficient source of legitimation. A refusal to venture outside it may even be a source of delegitimation. (ii)
Strategic consensus
A further possibility is that rational actors will trade any conflicting legitimating principles that would otherwise prevent them acting together to achieve their ends. They will accept some outcomes that are not justifiable from a point of view of their own notions of the rightful exercise of political power in exchange for others doing the same. Path dependence could then be expected to lock in trades made in previous periods. Keeping to deals will yield increasing returns. Departing from them will incur exit costs (Pierson, 2000). An elaborate legitimation settlement could thus accumulate and stabilise at Union level through a relatively small number of moves. Is there any empirical evidence of actors behaving in this way? The exchange of ‘political union for monetary union’
16
that lay behind the TEU can be interpreted as a legitimation trade: Germany got a technocratically legitimated monetary union and further parliamentarisation of pillar one; France kept the second and third pillars within the bounds of international legitimation. This was more than a trade of interests: it reflected deeply held, yet conflicting, ideas of what was needed for the rightful exercise of different kinds of political power.
There are, however, at least two problems with this approach. First, gains from trade and lock-ins can only explain the motives that actors may have for accepting some arrangements they would otherwise regard as non-legitimate. They do not in themselves confer legitimacy and must, therefore, always be vulnerable to changes in underlying interests or in technologies of public goods delivery. Second, they are themselves likely to be contested by those who believe that legitimation trades only follow power and resources. (iii)
Communicative consensus
The first solution limits politics to where ideas of legitimacy overlap; the second, to where they can be traded. Neither sees institutions as means of arbitrating the principles by which they are themselves legitimated, even to the satisfaction of those whose beliefs about the rightful exercise of political power are set aside. Such reticence may reflect problems with the notion of adjudicating between legitimation principles that are themselves supposed to be the means by which political system arbitrate between values.
One suggestion is that deliberative norms may ease the predicament, and that the dissatisfaction of those who lose from unavoidable choices between legitimation principles can be minimised where all actors have authentic opportunities to persuade others of their point of view (Mill, 1972). This, in turn, presupposes a series of deliberative practices that Habermas terms an ‘ethic of communication. First is a willingness of all to be persuaded, to give a fair hearing to other points of view, to understand why they are of such value to those who
17
hold them, and to state positions in a manner that exposes their evaluative and causal assumptions to challenge. Second is a willingness by all to be persuasive by reasoning ‘publicly’ rather than ‘self-referentially’. This means jus tifying alternative legitimating principles as goods for the Union as a whole and not just as personal preferences.
If its implications for European integration are to be understood it is important to explore the normative underpinnings of the claim that deliberation of legitimation principles can facilitate arbitration between them. In part, the argument is one of consent. Deliberation has its own internal ethic. Those who enter into it accept its rules. In part, the argument is epistemological. Beliefs about legitimacy are true or false in proportion to how far they are successfully justified to others (Risse, 2000). In part, the argument is one of justice. Legitimacy can only be established using a form of deliberation whose outcome is independent of power and resources acquired with the help of social processes whose rightness is the very question at issue. However, important power relations are elsewhere in a political system, it needs to be able to suspend, or abstact from them, for the purposes of developing legitimacy (Rawls, 1993).
It follows that the Union should embrace, and not avoid, conflicts about how it should be legitimated. On the one hand, this poses a problem of institutional design. A mechanism will have to be found for deliberating legitimation conflicts without outcomes depending on power or (self-referential) preferences. On the other hand, it poses a problem of what kind of actor can be a participant in European integration. Although, deliberative solutions are by definition compatible with disagreement, they only work between those who are prepared to acknowledge the contingency of whatever legitimation principles they personally favour (Ferry, 2000). Several authors have argued for deliberative solutions if the EU is to be post-statist in its capacity to achieve collective action without coercion and post-national in its ability to build community around a respect for difference, rather than a demand for uniformity (Eriksen, 1999; Shaw,
18
1999). Yet, deliberative ideals often appear hopelessly unrealistic (Dunn, 2000, p.223), out of touch with the spatio-temporal limitations of politics, and more suited to an Agora than a political system as massive as the EU. It is to possible solutions to this dilemma we now turn.
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6.
TOWARDS A GENERAL THEORY OF EU LEGITIMACY?
We can imagine several reasons why actors might prefer an open and continuous competition between legitimating principles even to a political system that definitively opts for their own ideas of rightful governance. Those who believe that successful justification to others is intrinsic to the meaning of a legitimacy may feel easier if their own beliefs about the rightful exercise of power have been established in competition with others, and in a manner that, therefore, allows them to make specific claims to normative or practical superiority. Those who like living in an open society may combine firm belief in one legitimation principle with a wish to retain the option of being convinced by the case for others in the future. Above all, those who are risk averse may prefer the certainty of ‘mixed government’ with its negotiated checks and balances between legitimating principles to a even a small probability of being arbitrarily dominated by others should they provoke and lose a struggle to apply just one notion of the rightful exercise of power to a political system (Pettit, 1997).
From any of these perspectives, conflicts between legitimation principles may not be dysfunctional to the Union as commonly supposed (Höreth, 1999). Conflict between legitimation principles may of itself stimulate acceptance. In classic parliamentary systems, the conflict between government and opposition nourished understanding of the regime (Mill 1972 [1859]). In the American Presidential system, conflict of powers is a foundation of the legitimacy of the whole, since it avoids a tyranny of the majority (Hamilton, Madison, Jay). In the case of the EU, it is possible to advance the hypothesis, which remains to be tested, that conflict between particular legitimating principles contributes to overall legitimacy to the extent that it grounds a system that is subtle and balanced.
But how to ensure that the balance between competing legitimating principles is not itself arbitrary or accidental if, as argued in the last section, deliberative ideals
20
are beyond the spatio-temporal limitations of a political system like the EU? In complete contrast to such ideals, we might imagine an incommunicative, or minimally communicative, consensus in which actors use signalling strategies to convey complex information about their own requirements for the rightful exercise of political power without any-one having much understanding, or even awareness, of values other than their own (Steinbruner, 1974). Critics of this approach object that legitimacy can only be established through reasoned justification. Its advocates insist it is needed if stable legitimation settlements are to be achieved without heavy expenditure of cognitive resources. Both capture only a part of what composite political systems like the EU do when they combine legitimation principles.
Consider what is in our view one of the most plausible accounts of contemporary EU governance. Giandomenico Majone argues that the Union is a form of mixed rule where power is not divided according to the functions of government (executive, legislative and judicial), but between the stakeholders in the political system (states, political parties, technocrats, judges, commercial interests and so on). The stakeholders are organised like Estates in pre-modern European politics. They are brought together in varying combinations according to the task in hand and the pattern of collaboration needed to resolve it.
For Majone, what results is a system of representation that is well adapted to the EU. However, on closer inspection it is more than that. The Estates are practised advocates for the rival legitimation claims typologised in the opening section of this article, international, parliamentary, technocratic, legal and corporate. They also reason with one another on the basis of normative and practical insights acquired through previous experience with combining legitimation principles, either in the hope of defe nding a particular combination, or of adding more of a favourite ingredient in the future. It is important to note that implicit in this are two economies of cognitive resources. The one is a classic political division of labour. Organised estates specialise in the tasks of justification and deliberation on
21
behalf of those they represent. The second is a more novel form of praxis. Ever shifting combinations of legitimation principles, and justifications for them, do not evolve independently of the work of the Union. Instead, it is the Union’s ‘case load’ that forces specification of rival legitimation claims, tests them, and provokes their continuous revision and renegotiation.
A composite legitimacy, such as that outlined here, is fragile (Habermas): a particular equilibrium can always unravel or call the legitimacy of the whole into question. Yet, the weakness of the overall construction is also its efficient secret. On the one hand, misjudgements by the Estates of combinations of legitimating principles acceptable to their followers soon provoke negative feedback and agonising reappraisal. Thus the Maastricht ratification crisis discredited notions of permissive consensus and catalysed a search for new solutions, including, somewhat tentatively, through the Amsterdam IGC (Moravcsik and Nicolaidis, 1998). On the other hand, the Estates can no more avoid deliberative ideals altogether than they can combine legitimation principles in complete abstraction of power and resources. In a weak political system, there is always a high probability that at least one actor willing to insist on some standards of justification or fairness is to be found amongst the multiple veto holders over collective effectiveness.
Permanent tension between the principles of legitimacy to be found in the European arena can finally be considered an answer to one of the oldest dilemmas in democratic theory. As Jon Jon Elster (1990), there is a real “democratic paradox” in any theory of the constituant power: since Condorcet, Paine et Jefferson, democratic theorists have puzzled in what measure one generation in adopting a constitution can establish ‘rules of the game’ that subsequent generations are obliged to accept. The answer offered by Condorcet and Jefferson was that any constitution should be considered a provisional convention which could be revised by subsequent generation (every twenty years in
Condorcet’s
formulation
and
every
22
nineteen
in
Jefferson’s).
This
recommendation was never adopted: the general tendency of modern constitutionalism has, to the contrary, been to entrench constitutionalism. That is more or less also the case with the EU: the Treaties which fix the rules of the game are only changeable with the unanimous agreement of member states, which is more and more difficult to achieve with successive enlargements. The perpetual conflict between the prinicples of Union legitimacy softens this constitutional determinism: if the rules can only be changed with difficulty, they can at least be re-interpreted in the light of the understandings of successive generations. The degree of uncertainty that is deliberately maintained around the principles of Union legitimacy can be seen as a deficiency in so far as it inhibits the formation of a common identity (Habermas, Weiler); but as a virtue in so far as it feeds a continuous process of constitutional deliberation.
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7.
CONCLUSIONS
The EU does not rest on a single principle of legitimacy. Itself the product of a compromise between numerous foundational visions, it rests on a plurality of ideas about the rightful exercise of political power. In large measure that also goes for national democracies which have, particularly in the last half century, incorporated into the ‘democratic idea’ a variety of notions about the legitimacy of expertise, of judicial control, and of corporate participation. In this respect, the EU appears more like a laboratory for changes that are more or less present elsewhere than as a sui generis system. The main theoretical question thrown up by this pattern of mixed government is the following: how can a system which rests on several principles of legitimacy deal with any contradictions between them? We have seen here that conflicts cannot be completely avoided, even though, the Union has a number of mechanisms at its disposal for maximising complementarities between legitimating principles and minimising tensions between them. Yet that conflict need not be dysfunctional or normatively undesirable. First, deliberation of legitimation priniciples nourishes civic education. Then, it ensures that compromises made today do not foreclose options available to future generations. The Union does not limit its participants to reflecting on the normative basis of a given political order. Instead, it demonstrates how a ‘constitution’ can both frame democratic deliberation and be the object of it.
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