Reforming me softly – how soft law has changed EU return policy since the migration crisis

Abstract

In the wake of the 2015/2016 migration crisis, EU policy-makers have urged returning more irregular migrants. In order to achieve this, the EU has adopted a series of non-binding documents for European administrations (such as the EU Return Handbook) and agreed on informal return deals with countries of migrants’ origin including Afghanistan. This article argues that the EU’s shift towards soft law has not altered the EU’s return policy in a profound way. Yet, it has managed to ‘convert’ EU return policy by emphasizing a particular interpretation of existing hard law (towards more restrictive practices and a stronger focus on ‘efficiency’). The soft law approach has also allowed policy-makers to signal action in times of crisis at lower legislative and sovereignty costs.     

The European Union as an opportunity: structures and uses of European soft law in French,Austrian and Irish eHealth policies

Abstract

Does European soft law matter? In order to answer this question, the article investigates the processes through which the European Union (EU) affects domestic politics and policies in the eHealth sector in France, Austria and Ireland. More precisely, it shows how the hardening of EU soft law creates a new rationale for the use of European instruments by domestic actors, thus expanding their strategic opportunities for policy making at the national level. Despite the empirical diversity of the cases, similar patterns of variation in Europeanisation mechanisms emerge over time, and the data show how the varying structure of European soft instruments (i.e. their degrees of ‘hardness’) accounts for these changes. This comparative analysis includes multiple process-tracing cases of eHealth public policy making in France, Austria and Ireland in which Europeanisation processes are at work.     

Exploring Transnational Civil Society: A Comparative Study of Colombian,Dominican and Mexican Immigrant Organizations in the USA

ABSTRACT

European integration has added an extra dimension to the perceived crisis of contemporary democracy. Many observers argue that the allocation of decision-making powers beyond the nation state bears the risk of hollowing out the institutional mechanisms of democratic accountability. In EU governance, the Commission has emerged as a particularly active and imaginative actor promoting EU–society relations, and it has done so with the explicit desire to improve the democratic legitimacy of the EU. However, assumptions concerning the societal prerequisites of a working democracy differ with the normative theory of democracy employed. Therefore, expectations concerning the beneficial effect of institutional reforms such as the European Commission's new governance strategy, which was launched at the beginning of the century, vary according to normative standards set by different theories of democracy on the one hand and to the confidence in the malleability of society on the other. Our contribution seeks to pave a way for the systematic assessment of the democratic potential of the European Commission's consultation regime. To this purpose, two alternative theoretical conceptions that link participation to democracy will be presented. A list of criteria for both conceptions that enable us to empirically assess the democratic potential of the EU Commission's participatory strategy will then be presented.     

The use of EU soft law by national courts and bureaucrats: how relation to hard law and policy maturity matter

Abstract

Soft law instruments account for a sizable share of EU legal acts, with growing importance over time. Yet, while the implementation of hard EU law has been widely studied, little is known about the use of EU soft law at the national level. In the article, it is firstly argued that the type of soft law instrument will affect national usage. Administrators and judges may welcome interpretative guidelines to complicated pieces of legislation, while more open-ended instruments may be ignored. It is further argued that the maturity of the policy field matters. National actors in mature policy fields will be routinely exposed to EU rules and they are socialized into responding to impulses from Brussels. The article probes the plausibility of these expectations in case studies on the use of EU soft law instruments by German administrations and courts in four policy fields: financial market regulation, competition, environmental protection and social policy.     

Normative transformations in EU external relations: the phenomenon of ‘soft’ international agreements

Abstract

The European Union increasingly uses ‘soft’ international arrangements rather than formal international agreements in establishing relations with non-EU states. This contribution aims to raise the question of to what extent a move from hard to soft law in relations between the EU and its partners can be seen as allowing the Union to ‘step outside’ the legal framework (if that indeed is what is happening) and disregard the rules and principles that define the way in which EU external relations are to take shape. Possible consequences include the risk that these instruments are not subject to appropriate safeguards, that parliamentary influence (by the European Parliament as well as by national parliaments) is by-passed and that transparency is affected. There are various reasons for the EU not to use formal procedures, but a turn to informality does come at a price.     

Democratic Dilemmas of Multilevel Governance: Legitimacy,Representation and Accountability in the European Union

How is sovereignty managed in the EU? This article investigates the relationship between sovereignty and European integration through the prism of national opt-outs from EU treaties, addressing an apparent contradiction in contemporary European governance: the contrasting processes of integration and differentiation. On the one hand, European integration is increasing as states transfer sovereign competencies to the EU. On the other hand, we see a multitude of differentiation processes through which member states choose to disengage from the EU polity by negotiating exemptions or derogations. Drawing on Pierre Bourdieu's political sociology, the article argues that to understand how sovereignty is interpreted and exercised in the EU, it is necessary to focus not only on the constitutive and regulative dimensions of sovereignty, but equally on the practice dimension. This entails an exploration of how sovereignty claims are managed in a particular social setting. Rather than seeing opt-outs as classic instruments of international law, accentuating the member states' unchanged sovereignty, the article argues that the management of the British and Danish opt-outs quite paradoxically expresses the strength of the doxa of European integration, i.e. the notion of ‘an ever closer union’.     

Guilt and the origins of modern law

Abstract

Tracing the history of legal concepts from the decline of European feudalism to the Reformation, this paper examines ways in which the concept of guilt shaped the first evolution of modern law, and it claims that the early revolutionary junctures in the construction of the law were centred around specific and distinctive conceptions of guilt. It argues that, through the history of medieval and early-modern European society, the law learned positively to abstract and account for itself through internally formative exchanges over the subject of guilt, and changes in law's observation of guilt reflected a growing refinement in law's societal sensibility, in its inclusivity, in its patterns of imputation and in its positive powers of self-legitimation. Guilt formed the term around which the law enacted the necessary stages of its social adaptation and produced constructs to underwrite the requirement for general, abstracted and positively inclusive law that constitutes modern society. The ultimate result of guilt's evolution as a legal figure became visible in the fact that the law progressively intensified its positivity and inclusivity, and it amplified the legal and normative resources that it permitted modern societies to store, utilize and reproduce.     

Functional stakes and EU regulatory governance: temporal patterns of regulatory integration in energy and telecommunications

Abstract

One of the most fiercely debated questions about EU regulatory governance is the respective role played by functional and political factors in regulatory integration. This article contributes to this debate by focussing on the functional factor. Based on a refined conceptualisation of functional stakes, it finds that they vary across sectors, evolve over time, and that these variations are reflected in the degree of regulatory integration observed. When member states perceive regulatory integration as a solution to one of their most pressing problems of the moment, they value – and sometimes even actively push for – the delegation of regulatory powers to the EU. This argument is subject to a credibility probe based on two within-sector analyses of temporal patterns of regulatory integration in energy and telecommunications. The empirical analysis lends support to the conditioning role of the functional factor in the design of EU regulatory governance.     

Softening the surface but hardening the core? Governing renewable energy in the EU

Abstract

Soft law and governance captured the attention of scholars in the 2000s, and new policy challenges and the novel introduction of ‘harder’ elements now drive a (re)turn to these discussions. This article explores the extent to which dynamics leading towards ‘harder soft governance’ (HSG) appear in the EU’s renewable energy governance by comparing the 2020 and 2030 Renewable Energy Directives. Document analysis and interviews reveal a surface-level softening because the new 2030 directive contains no binding national targets for the Member States. An entrepreneurial Commission has been seeking to introduce ‘harder elements’ at the core by focusing on implementation, allowing for potentially deeper influence on the national energy mixes though the Energy Union. Two main factors drive these changes: the evolving international context of climate change governance, as well as re-configurations of the actors in the EU. Future research should explore the effectiveness of emerging HSG in detail.     

Soft and hard law in times of crisis: budget monitoring,migration and cybersecurity

Abstract

European integration is associated with the idea of an ‘ever closer Union’, achieved in part through ‘integration-through-crisis’. However, while crises have led to higher regulatory pressure, responses to these crises have not always taken the form of stronger commitments and legally binding rules. Based on the study of three policy areas recently affected by crises, this article aims at analysing why in one of these policies (migration) more soft rules have been adopted, while the two other policies have evolved towards a greater use of hard law (budget monitoring, cybersecurity). Three potential explanations are analysed: the intensity of crises impacting political systems; the quality of prior norms and their (perceived) implementation; the entrepreneurship and heterogeneity of the coalition. Although all of these factors have explanatory powers, the capacity of policy entrepreneurs to build a large coalition appears to be the central explanation.     

From the rule of law to the rule of rules: technocracy and the crisis of EU governance

This article focuses on two trends emerging through the eurozone crisis, both of which diminish the quality of democracy in the EU and its member states. Firstly, the crisis has led to an increased reliance on non-majoritarian institutions, such as the ECB, at the expense of democratic accountability. Secondly, the crisis has led to a new emphasis on coercive enforcement at the expense of the voluntary cooperation that previously characterised (and sustained) the EU as a community of law. Thus, the ECB’s (over-)empowerment is a synecdoche of a wider problem: The EU’s tendency to resort to technocratic governance in the face of challenges that require political contestation. In the absence of opportunities for democratic contestation, EU emergency governance – Integration through Crisis – oscillates between moments of heightened politicisation, in which ad hoc decisions are justified as necessary, and the (sometimes coercive) appeal to the depoliticised rule of rules.     

Between ‘Objectivism’ and ‘Contextualism': the Normative Foundations of Social Philosophy

Abstract

One of the principal challenges facing contemporary social philosophy is how to find foundations that are normatively robust yet congruent with its self-understanding. Social philosophy is a critical project within modernity, an interpretative horizon that stresses the influences of history and context on knowledge and experience. However, if it is to engage in intercultural dialogue and normatively robust social critique, social philosophy requires non-arbitrary, universal normative standards. The task of normative foundations can thus be formulated in terms of negotiating the tension between ‘contextualism’ and ‘objectivism’. Six contemporary responses to this challenge are examined. Their respective limitations call for renewed reflection on justificatory strategies, in particular for a conception of ‘objectivity’ based in a normative theory of social learning processes.     

Economics and the ‘nonsense’ of law: the case of the Chicago antitrust revolution

Abstract

The Law and Economics movement that emerged in the University of Chicago through the 1940s and 1950s, around Ronald Coase's example, is a manifestation of the neo-liberal project of applying neo-classical economics to state sovereignty. In the 1970s and 1980s, Law and Economics ideas revolutionized the application of antitrust laws in the United States. However, this achievement came about not through a transformation in economic orthodoxy, but through persuading legal experts to recognize the inherent ‘nonsense’ at work in their own normative assumptions. The Chicago antitrust revolution is therefore symptomatic of trends that Foucault viewed as definitive of neo-liberalism more broadly.     

The EU's fledgling society: From deafening silence to critical voice in European constitution-making

Abstract

The European Union is presently at a major crossroads. The Laeken process which launched the EU onto an explicit constitution-making process, has ground to a halt after the negative referendum results in France and the Netherlands. The European Council at its June 16–17, 2005 meeting decided to postpone the ratification process (by then 10 states had ratified and 2 had rejected) and instead issue a period of reflection. These events represent a significant re-politicization of the European integration process. From a research perspective they underline the need to study the dynamic interrelation between the emerging European polity and its social constituency. In this article we present a research framework for analysing EU-constitutionalization in terms of polity building and social constituency building. In empirical terms, this implies looking at the structured processes of intermediation that link institutional performance back to popular concerns and expectations. Going beyond the contentious politics approach we propose that the character of the emerging EU social constituency and its pervading effects on the EU-constitution-making process should be understood not only in terms of public voice (i.e., as ‘organized civil society’) but also in terms of public silence.     

Second order secrecy and Europe’s legality mosaics

Abstract

In today’s information society the citizen is ever more visible to government and to private companies while paradoxically government itself becomes ever more secret. This asymmetry is not caused by secrecy implying deliberate or intentional concealment of information. Rather, it results from systems of secrets held by remote or non-visible public and private actors, having been put together in an invisible manner. Second order secrecy is enhanced in the EU by the composite character of EU administration. In the EU it is the courts ? and not the legislature or the administration ? that are playing an active role in addressing bits of the transparency paradox for the citizen from the perspective of legality and the rule of law. Three different aspects of EU governance are explored from the legal perspective: terrorist blacklists, interoperable security administration and mandatory data retention and transfer.     

Democratic 'Misfit'? Conceptions of Civil Society Participation in France and the European Union

The European Union's attempts to improve its democratic character increasingly often lead to debates about how to include civil society organizations in its decision-making processes. However, this interpretation of participatory democracy seems at odds with democratic traditions in a number of member states. Among those, France is said to be at the diametrically opposite end of the EU democratization debate spectrum. French democratic thought is based on government through electoral representation. The aim of this article is to analyze both theoretically and empirically the discourse and participatory processes in both the EU and France. While normative approaches to democratic patterns in the EU and French political debate show important differences, empirical evidence suggests that the misfit between the European and French conception of democracy is less developed than one might believe.     

The impact of information acquisition on EU performance judgements

Public evaluations of EU performance are not only critical indicators of the EU's output legitimacy, but also shape future support for European integration. For citizens to monitor the political performance of the EU they need relevant facts, yet it is anything but clear that gains in information about EU performance cause change in judgements about such performance. Drawing on two‐wave panel data, this article examines whether acquiring information following a real‐world EU decision‐making event alters citizens' judgements about the utilitarian and democratic performance of the EU. It also examines how this effect differs for people with different levels of general political information. It is found that citizens who acquired performance‐relevant information became more approving of the EU's utilitarian performance but did not change their judgements about its democratic performance. Also, individuals with moderate levels of general political information were affected most strongly by new facts about performance. The implications of these findings for EU‐level representative democracy are considered.     

The Subjects of Socialism: Politicizing Honneth’s Idea of Socialism

ABSTRACT

This paper criticizes Axel Honneth’s Idea of Socialism from a post-Marxist but nevertheless Marxian perspective. It focuses on the importance of particular political subjectivities for bringing about emancipatory transformations. Honneth’s decoupling of his revived conception of socialism from any kind of partisan subjectivity is not only overhasty. It also loses sight of the emergence of socialism as an idea in a proper Hegelian sense. Whilst Honneth contradictorily assumes that contemporary ethical life is already infused with a comprehensive normativity of social freedom that points towards its further realization, such a tendency of normative and social universality has been largely eliminated by the regressions of neoliberal hegemony. In this historical situation, the becoming-hegemonic of social freedom depends on the polemical initiative of those kinds of political subjectivities which are theoretically excluded from Honneth’s conception of socialism.     

Accounting for coalition‐building in the European Union: Budget negotiations and the south

Which parameters affect coalition building in budgetary negotiations? In this article, three distinct levels of analysis are identified to account for coalition building patterns, associated with domestic politics, domestic socioeconomic structures and EU politics. At the level of domestic politics, ideology points to cross‐governmental affinity of a partisan nature; at the level of socioeconomic structures, similarity of policy interests, generated by cross‐national socioeconomic convergence with EU policy standards, informs coalition formation patterns; at the EU politics level, the intergovernmental power balance influences the political aspirations of each Member State in the integration process and coalition‐building decisions. Two sets of parameters affect the evolution of EU coalition patterns, corresponding to the integration impact on the EU (new cleavages) and on the Member States (the impact of Europeanisation). This analytical framework is used to examine the southern coalition (Spain, Greece, Portugal) in the four multi‐annual financial frameworks (1988, 1992, 1999 and 2005).     

Desperate equilibrium: on guilt,law and rationality

Abstract

This paper is about the role of guilt in relation to practical reason. It analyses guilt not as a passive emotion but as a particular kind of strategy at the level of subjective rationality. The concept of guilt occupies a complex and contested semantic space with other concepts, most notably shame. There have been many attempts – philosophical, psychological, sociological – to define these concepts in relation to each other. This paper suggests that whilst guilt is a moral concept that is oriented towards a certain kind of legalism, shame is a moralistic concept. As such, the relations between guilt and shame are discussed in relation to some literary examples, for instance Macbeth's guilt and Conrad's Lord Jim. The conclusion is that on the one hand our confusion over the concept of guilt comes down not least to what may be our confusion over the difficult concept of law and that on the other hand this has consequences that can ultimately be political.