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Miguel Poiares Maduro, former AG on the CJEU and now holder of a joint chair at EUI and the Robert Schuman Centre for Advanced Studies in Florence, is hosting an online discussion as part of the RSCAS Global Governance Programme, which he also directs. The focus is a report prepared by Maduro for the European Parliament’s Committee on Constitutional Affairs, entitled ‘A New Governance for the European Union and the Euro: Democracy and Justice’. I urge readers to take a look at the full report as well as the online debate. For benefit of europaeuslaw readers, my contribution is reproduced below, with links added.
Miguel, thanks for offering me the chance to chime in on this discussion, even if a bit late relative to the other participants. There are elements in your report that I like; however, it probably won’t surprise you that I ultimately can’t accept some of your basic premises nor am I convinced that your core proposals are feasible.
I agree that Europe suffers, as you put it (p.5), from a ‘political gap: the scope and level of politics has not followed the scope and level of political problems in Europe’. This is indisputable. You call this Europe’s ‘most important democratic deficit’ and it is clearly manifesting itself acutely in the effort to resolve the Eurozone crisis. I’ve argued for slightly different terminology to describe this gap: I call it the ‘democratic disconnect’. The substitution of ‘disconnect’ for ‘deficit’ is not merely semantic but points to why I’m not ultimately persuaded by your institutional prescriptions.
A ‘deficit’ approach implies that the democratic challenge in the EU, as your report suggests, is primarily one of institutional/political engineering, focusing, as you put it, on ‘a reorganization of European political spaces’ with an eye to a hoped-for ‘emergence of a European political space’. The deficit approach seeks to move the level of democratic politics to the European level (notably through politicization of the Commission, greater empowerment of the European Parliament, and the creation of a genuine European budget worthy of the name), precisely so that the ‘scope and level of politics’ will now match ‘the scope and level of problems in Europe’.
In contrast to this functionalist approach, the ‘disconnect’ approach focuses, in a more socio-political/socio-cultural vein, on a basic reality in Europe. For better or worse, Europeans continue to experience the locus of democratically legitimate governance as fundamentally national, even as the functional demands of interdependence, as your report suggests, may well demand the shift in regulatory power to the supranational level.
The tension between the functionally appropriate locus of regulatory ‘power’ and the still-national locus of democratic ‘legitimacy’ has defined the process of European integration for sixty years. I would suggest, moreover, that it will continue to define the integration process in the struggle to find a solution to the Eurozone crisis. Your proposal, in effect, seeks to overcome that tension through institutional/political engineering; that is, through an exercise of political will, or at least a concerted process of political persuasion, convincing Europeans that it is time to diminish the space for national democratic politics and shift its locus to the supranational level. Just as in the past, I question whether that is possible in today’s Europe, and this difficulty will almost certainly shape the nature and extent of efforts to resolve the Eurozone crisis.
On one level, you might argue that are positions are not that far apart. As you put it in the report (p.5): ‘Any move towards deeper political and economic integration should be grounded on a choice by citizens and not presented to them simply as the unavoidable consequence of the Euro. It is fundamental for citizens to understand that the need for further political integration is the democratic answer to interdependence and not a mechanical necessity imposed by the logic of integration’. I could not agree with this statement more. But then you state further down the same page: ‘The bedrock of European solidarity [and hence also the process of democratization you seek] will not be a pre-existing cultural or social identity. It will be an awareness of the benefits of European integration and that those benefits must come with duties too’ (p.5). I do not doubt that European integration comes with duties, even if the process remains grounded in democratic legitimacy on the national level (this was my basic point in an earlier blog post, ‘Fault, Not Solidarity: A Normative Argument to Save the Eurozone’, EUtopialaw.com, July 30, 2012). But your claim that democratic legitimacy is possible on purely instrumental grounds (as evidenced by your repeated invocation of the ‘benefits’ of integration, e.g., pp.1, 5, 7, 10, 12, 13, 17), rather than on the basis of a shared democratic identity, strikes me, from a historical perspective, as wishful thinking.
In this regard, I admit that I am hopelessly old-fashioned. As I argue in Power and Legitimacy (p.11), democratic identity builds ‘on more than what Max Weber called “the directly economic disposition of goods and services.”’ Or to reach even further back into the scholarship on this question, we could paraphrase Ernest Renan: ‘A community of interest is assuredly a powerful bond among [peoples]. Do interests, however, suffice to make a [democracy]? I do not think so. Community of interest brings about trade agreements, but [democracy] has a sentimental side to it; it is both soul and body at once; a Zollverein is not a patrie’.
Of course, you attempt to construct a theory of distributive justice on the basis of your functionalist, instrumental reasoning. But to me the question is whether distributive justice alone is sufficient to establish democratic legitimacy. My ‘Fault, Not Solidarity’ post also entailed a concept of distributive justice and yet explicitly grounded that theory on the democratic choices of individual states. So to me the question is whether it is possible, given the broader attachment of most Europeans to maintaining national forms of democracy in a historically recognizable sense, to construct a supranational form of European democracy on the instrumental grounds you pose.
Here I would recite the argument I set forth in my Daimler Lecture at the American Academy in Berlin last spring. I fully agree that European integration has done much, and could do more, to augment ‘input legitimacy’ at the supranational level (‘government by’ Europeans in the Lincoln sense). I also agree that it has done much, but certainly could do more in this crisis, to augment ‘output legitimacy’ (‘government for’ Europeans). But what the process of integration has not yet achieved is the strong sense of socio-political/socio-cultural identity between supranational institutions and the average European on the street (‘government of’ Europeans). In that latter regard, as your report repeatedly and rightly suggests (e.g., p.2, 6, 18-19), the process of European integration is still experienced as a fundamentally ‘technocratic’ construct. It is technocratic not merely in design but also in its socio-political/socio-cultural foundations, perceived as distant, bureaucratic, and emphatically not the institutional expression of self-rule within a coherent political community conscious of itself as such.
So the real question is: Can your proposed process of political and institutional engineering convince Europeans that, even as the space for national ‘democratic’ politics diminishes, it is being replaced by something on the supranational level that can and should be experienced as ‘democratic’ and not merely ‘technocratic’? In this regard, I think your effective reliance on input and output legitimacy alone, without concern for democratic identity (‘demos-legitimacy’, as I have called it), significantly undermines the viability and feasibility of your proposals. Without a reasonable level of ‘demos-legitimacy’ among the various peoples of Europe, it is deeply unlikely that you will achieve the sense of solidarity needed to realize your ‘three pillars’ (‘an increased EU budget supported by real EU revenue sources; new EU policies and a different kind of policies; and more effective political authority supported by a European political space’, p.11).
There remains, then, the question of the survival of the Euro. As you argue in the report (p.11), ‘if we indeed want to save the Euro and the project of European integration, an impossible solution will have to become possible’. Perhaps, but as others have done (most famously Angela Merkel), you conflate the survival of European integration itself with the survival of the common currency. This strikes me as assuming what is fundamentally in dispute. Unwinding the Euro would no doubt be extraordinarily and painfully costly, and I’m not necessarily advocating that here. But it strikes me that, at this point in the crisis, with the high social and political costs of maintaining the Euro becoming clearer by the day, some retrenchment in the EMU is just as likely as its survival at all costs.
Indeed, rather than being essential to its survival, the survival of the Euro may increasingly come to be perceived as inimical to European integration, properly understood. Whether seen in terms of Joseph Weiler’s ‘equilibrium theory’, Kalypso Nicolaidis’s ‘demoicracy’, Christian Joerges’s ‘conflicts-law constitutionalism’, or my ‘administrative supranationalism’, Europeans may increasingly come to appreciate that there are limits to the scope of regulatory power that the process of European integration can legitimately sustain. For you, the guiding principle in integration should be member-state internalization of ‘the consequences of interdependence’ (see, e.g., pp.5, 7, 8, 10). But as you also repeatedly acknowledge, that interdependence (and therefore that internalization) is not simply an autonomous functional demand, something ‘in the air’, to which Europeans must conform. As Alan Milward long ago taught us, interdependence is a political choice, one that flows from the fact of integration itself. You apparently concur, as evidenced by such phrases as: ‘interdependence generated by the Euro and integrated markets’ (p.1); ‘interdependence generated by the Euro’ (p.3); and ‘deeper integration and the interdependence it creates’ (p.3). Indeed, as you write, ‘European integration generates a deep interdependence’ (p.5).
If this is so, then the choice in favor of interdependence via European integration (including EMU) must always be balanced against other values and choices. Interdependence is part of broader set of trade-offs. And one of the basic premises of those trade-offs to date has been the desire to preserve national forms of democracy in conjunction with the process of integration. The fundamental problem with the Euro is, as your report suggests, is that it has made the preservation of national forms of democracy increasingly untenable.
So you are entirely correct that ‘the democratic consequences of interdependence [must be made] visible to citizens’ (p.7). But do not be surprised if, when push really comes to shove in this crisis (that is, when the costs of saving the Euro become so great that the choice becomes one between your ‘three pillars’ and a retrenchment in the EMU), that the latter becomes the de facto choice, even if hypocritically dressed up in face-saving language of ‘saving the Euro’.