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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’.
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