European Studies and the European Crisis: Legal and Political Science between Critique and Complacency

European Studies used to be dominated by legal and political science approaches which hailed the progress of European integration and its reliance on law. The recent set of crises that struck the EU have highlighted fundamental problems in the ways and means by which European integration unfolds. The quasi‐authoritarian emergency politics deployed in the euro crisis is a radical expression of the fading prevalence of democratic processes to accommodate economic and social diversity in the Union. As we argue in this paper, however, the mainstreams in both disciplines retain a largely affirmative and apologetic stance on the EU's post‐democratic and extra‐constitutional development. While political science contributions mostly content themselves with a revival of conventional integration theories and thus turn a blind eye to normatively critical aspects of European crisis governance, legal scholarship is in short supply of normatively convincing theoretical paradigms and thus aligns itself with the functionalist reasoning of the EU's Court of Justice. Yet, we also identify critical peripheries in both disciplines which intersect in their critical appraisal of the authoritarian tendencies that inhere in the crisis‐ridden state of European integration. Their results curb the prevailing optimism and underline that the need for fundamental reorientations in both the theory and practice of European integration has become irrefutable.     

Europe Entrapped

The EU in 2013 finds itself at the crossroads of either something considerably better or something much worse than the status quo; in other words, in a crisis. That much is nearly universally understood, both within Europe and widely beyond. So I am certainly not alone in believing that the current crisis, a crisis that is the cumulative outcome of a financial market, sovereign debt and EU integration/democratic deficit crises, is an extremely serious and unprecedented one, frightening due to its complexity and uncertainty. If it cannot soon be resolved (but nobody knows how soon is ‘soon enough’) through a major institutional overhaul of the EU, both the political project of European integration and the global economy will suffer badly—to say nothing about the massive social suffering it has caused already in the countries of the European periphery.     

From Balance to Conflict: A New Constitution for the EU

As the crisis (and the Union's response to it) further develops, one thing appears clear: the European Union post‐crisis will be a very different animal from the pre‐crisis EU. This article offers an alternative model for the EU's constitutional future. Its objective is to invert the Union's current path‐dependency: changes to the way in which the Union works should serve to question, rather than entrench, its future objectives and trajectory. The paper argues that the post‐crisis EU requires a quite different normative, institutional and juridical framework. Such a framework must focus on reproducing the social and political cleavages that underlie authority on the national level and that allow divisive political choices to be legitimised. This reform project implies reshaping the prerogatives of the European institutions. Rather than seeking to prevent or bracket political conflict, the division of institutional competences and tasks should be rethought in order to allow the EU institutions to internalise within their decision‐making process the conflicts reproduced by social and political cleavages. Finally, a reformed legal order must play an active role as a facilitator and container of conflict over the ends of the integration project.     

Who is Afraid of Radical Pluralism? Legal Order and Political Stability in the Postnational Space*

Constitutional pluralism has become a principal model for understanding the legal and political structure of the European Union. Yet its variants are highly diverse, ranging from moderate “institutional” forms, closer to constitutionalist thinking, to “radical” ones which renounce a common framework to connect the different layers of law at play. Neil MacCormick, whose work was key for the rise of constitutional pluralism, shifted his approach from radical to institutional pluralism over time. This paper reconstructs the reasons for this shift—mainly concerns about political stability that also underlie many others' skepticism vis‐à‐vis radical pluralist ideas. It then seeks to show why such concerns are likely overdrawn. In the fluid, contested space of postnational politics, a common, overarching frame is problematic as it might inflame, rather than tame, tensions. Leaving fundamental issues open along radical pluralist lines may help to work around points of highly charged contestation and provide opportunities for resistance from less powerful actors.     

Internal Market Rationality,Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political

This paper proposes a concept of ‘internal market rationality’ for the analysis of the political, legal and economic consequences of European integration. Internal market rationality refers to a specific pattern of political action in the field of internal market, which has emerged gradually due to the confluence of three main factors: first, the EU's functional institutional design; second, the processes of post‐national juridification; and third, a more contingent influence of ideas. In the interplay of those three factors, the interpretation of internal market has become overdetermined, restricting thereby the space of (democratic) politics in its regulation. This reification of internal market rationality has had a direct influence on the content of European law, as I demonstrate through the example of European private law. Internal market rationality has transformed the very concept of justice underpinning private law, the concept of the person or subject of law, the (re)distributive pattern of private law as well as the normative basis on which private law stands. I argue, finally, that a close examination of the legal, institutional and ideological arrangement behind internal market rationality provides clues for the democratisation of the EU.     

The Idea of Deliberative Democracy. A Critical Appraisal

The deliberative conception of politics seems to be necessary for the legitimation of state power through democratic will-formation and decision-making. However, the author maintains that a complex theory of democracy cannot merely consist in procedural prerequisites for organizing the concomitant institutional settings. In particular, such a theory must comprise some substantive presuppositions, such as social and economic rights, in order to diminish existing material inequalities, especially those connected with social exploitation and domination. The author argues that a contemporary theory of democracy should reflect on the autonomization of mechanisms of egoistic action challenging not only the democratic political order, but also the very reproduction preconditions of societies all over the world. In this perspective, the model of associative democracy, which is suggested nowadays as a sort of substantive correlative to the institutional proceduralism, could not significantly rejuvenate the traditional representative democracy. Instead, democracy could only be given a fresh impulse if democratic deliberation penetrates the currently forbidden field of capitalist production and social exploitation, the locus where social inequality and effective unfreedom are endlessly reproduced.     

Directly-Deliberative Polyarchy

This essay by Joshua Cohen and Charles Sabel promotes visions of democracy, constitutionalism and institutional innovations which may help to open up new dimensions in the search for legitimate European governance structures and their constitutionalisation. Faced with Europe's legitimacy problems, proponents of the European project often react by pointing to the many institutional failings in the (national) constitutional state. These reactions, however, seem simplistic, offering no normatively convincing alternatives to the once undisputed legitimacy of a now eroding nation state. The essay by Cohen and Sabel forecloses such strategies. Summarising and endorsing critiques of both the unfettered market system and the manner of its regulatory and political correction, it concludes that the many efforts to establish new equilibria between well-functioning markets and well-ordered political institutions are doomed to fail, and opts instead for fundamental change: conservative in their strict defence of fundamental democratic ideals, such ideas are radical in their search for new institutional arrangements which bring democratic values directly to bear. How is the concept of directly-deliberative polyarchy complementary to and reconcilable with our notions of democratic constiutionalism? To this question the readers of the essay will find many fascinating answers. Equally, however, how might the debate on the normative and practical dilemmas of the European system of governance profit from these deliberations? Which European problem might be resolved with the aid of the emerging and new direct forms of democracy identified in this essay? How might direct democracy interact with the intergovernmentalist and the functionalist elements of the EU system? Although this essay contains no certain answers to these European questions, its challenging messages will be understood in European debates.     

Reconfiguring the Politics–Law Relationship in the Integration Project through Conflicts–Law Constitutionalism

This paper argues that the relationship between law and politics must be reconfigured within the European Union. Dissecting recent crises in economic, social and political organisation within Europe with reference to the three ‘fictitious’ commodities of Karl Polanyi, we find that law in Europe has contributed to de‐legalisation, de‐socialisation and disenfranchisement. Moving on to review the potential for law to respond to crisis through new paradigms of conflict resolution as suggested by Ralf Dahrendorf, we find that the steering capacity of law is nevertheless limited if it fails to establish a sustaining relationship with politics. Our conclusions are modest: conflict–law constitutionalism cannot solve Europe's many crises. However, it does represent a new paradigm of law within which relations between European law and European politics might be re‐established—a vital step to overcoming crisis.     

The Way We Do Europe: Subsidiarity and the Substantive Democratic Deficit

The new institutional framework of subsidiarity is expected to lower the EU democratic deficit. In contrast to this optimistic scenario, I argue that the success of subsidiarity depends on its capacity to unravel the EU's ‘substantive’ democratic deficit. Linked to the Union's functionalist institutional design, this dimension of the democratic deficit has developed due to two limitations of EU‐level politics. First, the EU functionalist design has narrowed the range of topics open to democratic debate (horizontal substantive democratic deficit). Second, the proportion of the debate which we could genuinely describe as being political is declining as a result of the de‐politicisation of EU goals, underpinned by a massive accumulation of allegedly apolitical expert knowledge (vertical substantive democratic deficit). Against this background, I contend that by involving actors relatively alien to the EU functionalist thinking, subsidiarity could offer an opportune ground for the re‐politicisation of democratic ‘blind spots’ in EU policy making.     

The Trilemma of European Economic and Monetary Integration,and Its Consequences

The article analyses trade‐offs between sovereignty, mass politics and economic and monetary union (EMU), employing Rodrik's paradox of globalisation. The logic of EMU is incompatible with sovereignty and mass politics—only two of the three can coexist. It is argued that three different answers to the trilemma can be observed in the EU practice. In the initial EMU, integration was limited to safeguard mass politics and sovereignty. Member States were free to set economic policies in response to domestic mass politics. This proved unsustainable. During the crisis, democracy was sacrificed to bolster integration, while sovereignty was maintained. Rules on fiscal discipline and macroeconomic imbalances constrain mass politics, and non‐democratic institutions have acquired more prominent roles. Finally, long‐term plans for a genuine EMU envisage the strengthening of integration and moving the locus of democracy to the EU level, while weakening sovereignty. The analysis carries implications. If national courts insist on sovereignty and democracy, the likely consequence is an unworkable EMU, damaging the output legitimacy of the EU. The model adopted in the crisis reinforces the elite nature of the EU, undermines democracy at the national level and may bolster political extremism. This leaves the task of building the preconditions for democracy at the European level.     

Retrieving the ‘subject’ of European integration

In this article, a critical reinterpretation of citizens as subjects of European integration moves the focus of EU law from EU citizens' subjection to their subjectification. This analysis draws on post‐structural social theory in arguing that the law is instrumental to securing the material conditions for transnational political subjectification because it regulates both EU citizens' access to transnational social relations and the perception of difference between them. However, the law also reinforces constraints on the process of transnational subjectification. Systematic obstacles, which must be taken into account, are not limited to economic status, but include other variables like gender or age. It will be argued on this basis that EU law needs to develop a more coherent politics of subjectivity. Towards this goal, the law must carefully attend to what is (and is not) depoliticising in EU citizenship rights.     

Quasi-National European Identity and European Democracy

Democracy may well be the primary virtue of political systems. Yet European politics is marked by a democracy deficit that will not disappear spontaneously. While legal and political theory on this issue is dominated by supporters of civic institutionalism and constitutional republicanism, liberal nationalists seem to be split. They justify the civic nationhood of member states, but they shrink away from the idea of a European people. This essay claims that a quasi-national conception of European identity can be conducive to the rise of a democratic political union of Europe. It discusses the mechanisms and rules for Europeanization of the sense of equal dignity and solidarity. This approach to supranational identity is explicitly instrumental and orientated towards the long run. However, the main liberal objections against it can be countered.     

A European Constitution in a Multinational Europe or a Multinational Constitution for Europe?

Abstract: What is the role of the nation‐state in the process of European constitutional integration? How can we transcend our divisions without marginalising those who believe in them? This article critically analyses the theoretical bases of the Treaty Establishing a Constitution for Europe and tries to explain why its ratification is so problematic. Authors such as Habermas have argued that a new European model of social cohesion is needed, and Habermas suggests that the sense of ‘community’ in a democratic Europe should be founded exclusively on the acceptance of a patriotic constitution. However, this view is criticised by authors such as Weiler and MacCormick. In this article, I explain the limits of these theoretical analyses. I will argue that a European constitutional project can be more than formally legal only if two normative conditions are satisfied: it is the result of public debate and the European Constitution includes the procedures for the recognition of European national diversity. I suggest that a theory of constitutional multinationalism, similar to the one proposed by Tully, might provide an attractive model for a European social integration. The article is divided in two parts. In the first, I explain why Habermas’ constitutional patriotism or MacCormick's states based Europe cannot provide a convincing theoretical model for a socially and constitutionally integrated Europe. In the second part, I will give an outline of Tully's idea of multinational democracy as a model for a European constitutional integration.     

Tailoring Representative Democracy to the European Union: Does the European Constitution Reduce the Democratic Deficit?

Abstract Even if the institutions of representative democracy that have developed in the nation‐state context cannot be simply transposed to the European Union, for practical and normative reasons they do provide the main starting point for any reflection on the EU's ‘democratic deficit’. This article draws upon the Constitution prepared by the European Convention to reconstruct the concept of representative democracy in the EU. Drawing on the proposals put forward, it identifies two distinctive challenges that need to be overcome if the concept of representative democracy is to be successfully applied to the EU: the multilevel character of the polity and the shift of the centre of political gravity from legislative to executive politics. The article then examines the extent to which the institutional proposals contained in the Constitution go to meet these two challenges and also highlights some aspects in which these proposals fall short.     

Shifting Boundaries of Membership: The politicisation of free movement as a challenge for EU citizenship

This article discusses freedom of movement under the lens of shifting boundaries of membership and traces the tension between the political and the economic rationale of European integration. It first reflects on the normativity of free movement and links it to the foundations of modern democratic citizenship. Subsequently, it discusses the role of free movement in the construction of EU citizenship and argues that the genesis in market integration casts a long shadow which hinders EU citizenship's potential to fully display the logic of political and social equality. Under current conditions of huge wealth discrepancies between member states, the prevailing form of horizontal integration necessarily brings about a tension between mobility and solidarity, which in turn creates a barrier for further developing EU citizenship. It is concluded that strengthening an intra‐European dimension of solidarity is needed in order to substantiate the right to move as an equal European citizenship right.     

The European Charter of Fundamental Rights A Changed Political Opportunity Structure and its Normative Consequences

The European Community is about to enlarge its de facto constitution by a fundamental rights charter. It is intended to become legally binding, at least in the long run. If it is, it will profoundly change the political opportunity structure between the Community and its Member States, among the Member States, among the organs of the Community and in relation to outside political actors. When assessing the new opportunities, one has to keep in mind the weak democratic legitimation of European policy making and its multi‐level character. The article sketches the foreseeable effects and draws consequences from these insights for the dogmatics of the new fundamental rights, their relation to (other) primary Community law and to other fundamental rights codes. It ends with a view to open flanks that cannot be closed by the dogmatics of the freedoms themselves, but call for an appropriate design of the institutional framework.     

Europe's 'Democratic Deficit': The Question of Standards

Arguments about Europe's democratic deficit are really arguments about the nature and ultimate goals of the integration process. Those who assume that economic integration must lead to political integration tend to apply to European institutions standards of legitimacy derived from the theory and practice of parliamentary democracies. We argue that such standards are largely irrelevant at present. As long as the majority of voters and their elected representatives oppose the idea of a European federation, while supporting far-reaching economic integration, we cannot expect parliamentary democracy to flourish in the Union. Economic integration without political integration is possible only if politics and economics are kept as separate as possible. The depoliticisation of European policy-making is the price we pay in order to preserve national sovereignty largely intact. These being the preferences of the voters, we conclude that Europe's 'democratic deficit' is democratically justified.
The expression 'democratic deficit,' however, is also used to refer to the legitimacy problems of non-majoritarian institutions, and this second meaning is much more relevant to a system of limited competences such as the EC. Now the key issues for democratic theory are about the tasks which may be legitimately delegated to institutions insulated from the political process, and how to design such institutions so as to make independence and accountability complementary and mutually supporting, rather than antithetical. If one accepts the 'regulatory model' of the EC, then, as long as the tasks delegated to the European level are precisely and narrowly defined, non-majoritarian standards of legitimacy should be sufficient to justify the delegation of the necessary powers.     

Delegation of Regulatory Powers in a Mixed Polity

It is a common place of academic and political discourse that the EC/EU, being neither a parliamentary democracy nor a separation‐of‐powers system, must be a sui generis polity. Tocqueville reminds us that the pool of original and historically tested constitutional models is fairly limited. But however limited, it contains more than the two systems of rule found among today's democratic nation states. During the three centuries preceding the rise of monarchical absolutism in Europe, the prevalent constitutional arrangement was ‘mixed government’—a system characterised by the presence in the legislature of the territorial rulers and of the ‘estates’ representing the main social and political interests in the polity. This paper argues that this model is applicable to the EC, as shown by the isomorphism of the central tenets of the mixed polity and the three basic Community principles: institutional balance, institutional autonomy and loyal cooperation among European institutions and Member States. The model is then applied to gain a better understanding of the delegation problem. As is well known, a crucial normative obstacle to the delegation of regulatory powers to independent European agencies is the principle of institutional balance. By way of contrast, separation‐of‐powers has not prevented the US Congress from delegating extensive rule‐making powers to independent commissions and agencies. Comparison with the philosophy of mixed government explains this difference. The same philosophy suggests the direction of regulatory reform. The growing complexity of EC policy making should be matched by greater functional differentiation, and in particular by the explicit acknowledgement of an autonomous ‘regulatory estate’. At a time when the Commission aspires to become the sole European executive, as in a parliamentary system, it is particularly important to stress the importance of separating the regulatory function from general executive power. The notion of a regulatory estate is meant to emphasise this need.     

Hard and Soft Law in the Construction of Social Europe: the Role of the Open Method of Co-ordination

Abstract:  The debate over the Open Method of Co-ordination has reopened discussion of the role of 'soft law' in the process of European integration. This paper outlines the debate over the relative value of hard and soft law in EU social policy, explores the operation of non-binding objectives and guidelines in the European Employment Strategy, suggests a number of reasons why 'soft law' might be effective in this area, and explores the possibility for productive combination of hard and soft law measures.     

试论人大制度作用在法律文本与政治现实上的不对称

政治文明的精髓是关键在于制度建设.作为我国根本政治制度和民主政治建设重要载体的人大制度,在社会主义政治文明建设中具有无可替代的重要作用,但其作用在法律文本与政治现实上存在明显的不对称,需要通过优化人大工作环境、完善根本政治制度、扩大公民政治参与等途径,使人大制度作用得以充分发挥,从而推进社会主义政治文明建设.