Peter Lindseth: Equilibrium, Demoi-cracy and Delegation in the Crisis of European Integration (Corrected Version)

Network member Peter Lindseth (UConn Law School) has a new article out in the German Law Journal entitled "Equilibrium, Demoi-cracy and Delegation in the Crisis of European Integration".  The abstract is below.  A corrected version has been posted to fix errors inadvertently introduced by the editors without the author's approval.  The corrected version can be downloaded on SSRN here or the GLJ site here.

* * *

As my work has argued previously, European integration enjoys an “administrative, not constitutional” legitimacy. This view is in obvious tension with the deeply-rooted conceptual framework—what we might call the “constitutional, not international” perspective—that has dominated the public-law scholarship of European integration over many decades. Although the alternative presented in my work breaks from that traditional perspective, we should not view it as an all-or-nothing rejection of everything that has come before it. The administrative alternative can be seen, rather, as providing legal-historical micro-foundations for certain theories that also emerged out of the traditional perspective even as they too are in tension with it. I am referring in particular to Joseph Weiler’s classic notion of European “equilibrium”—now updated as “constitutional tolerance”—as well as Kalypso Nicolaïdis’s more recently developed theory of European “demoi-cracy” on which this article focuses in particular. The central idea behind the “administrative, not constitutional” interpretation—the historical-constructivist principal-agent framework rooted in delegation, as well as the balance demanded between supranational regulatory power and national democratic and constitutional legitimacy—directly complements both theories. The administrative alternative suggests how the relationship between national principals and supranational agents is one of “mediated legitimacy” rather than direct control. It has its origins in the evolution of administrative governance in relation to representative government over the course of the twentieth century (indeed before). By drawing on the normative lessons of that history—notably the need for some form of national oversight as well as enforcement of outer constraints on supranational delegation in order to preserve national democratic and constitutional legitimacy in a recognizable sense—this article serves an additional purpose. It suggests how theories of European equilibrium and demoi-cracy might be translated into concrete legal proposals for a more sustainable form of integration over time—a pressing challenge in the context of the continuing crisis of European integration.

Pragmatism, Idealism and European Demoicracy (Kalypso Nicolaïdis)

Network member Kalypso Nicolaïdis (Oxford), who just completed a year at NYU as a Joint Straus / Senior Emile Noël Fellow, has posted a comment on Social Europe Journal entitled "Pragmatism, Idealism, and European Demoicracy."  A taste is below and you can read the remainder at SEJ.

 * * *

Europe has never been so crowded with Cassandras than in the last three years since the Eurocrisis began – pundits and politicians predicting that the Euro or even the European Union would collapse if we did not at last achieve ‘unity’ while claiming that they themselves were cursed with public disbelief in their predictions – predictions echoed on the other side of the ideological divide by those heralding the end of national democracy as we know it unless we got rid of the Euro.

Yet, neither the EU nor the Eurozone have disintegrated. Instead the muddlers through have, well, muddled through, causing much damage to Europe’s social fabric in the process, but nevertheless keeping the show on the road. [Continue reading at Social Europe Journal]

"Demoicracy" follow-up: reflections on the legal and institutional implications of the concept

This post is a follow-up to the fascinating discussion at NYU Law School on March 7-8, entitled “Understanding the EU and its Crisis through the Lens of Demoicracy: A Conversation,” organized and hosted network members Kalypso Nicolaïdis and Joseph Weiler.  The first day focused on some of the philosophical and theoretical dimensions of the concept of “demoicracy,” particularly as defined in Kalypso's work.  The second examined the potential legal and institutional implications of the “demoicratic” character of the EU.  

Unfortunately, because of commitments at my day job (so to speak), I couldn't stay for the second round.  Nevertheless, I was able to write up some thoughts on the topic, which I passed on to Kalypso in lieu of attending. Network members and europaeus|law readers might also find these thoughts interesting, perhaps with an eye to furthering discussion on the question, particularly in the context of the Eurozone crisis.

* * *

First, some general normative considerations:

To me, your concept of "demoicracy" captures the essential reality in the EU (following Joseph's lead from yesterday):  weakly legitimated supranational bodies possessing great amounts of regulatory power operating in relation to strongly-legitimated but functionally constrained national constitutional bodies as representative of various "demoi."  The normative challenge in these circumstances, as my book Power and Legitimacy argues, is to "maintain the connection" between these two levels of governance so that (i) you get the benefits of supranational regulatory power where functionally necessary/beneficial to the political ends of integration, but (ii) always maintain the national level as viable democracies in a historically and culturally recognizable sense.  Put it another way, one must maintain an "equilibrium," in a Weiler "Transformation" sense, between the national and the supranational, following the "community" not "unity" vision.  And to link it to your work, such equilibrium is necessary to "govern together but not as one."  Even the most fervent advocates of integration pay at least lip service to the idea that integration must maintain the member states as viable democracies -- integration is about empowering the MS to do things together that they can't achieve alone, without negating their essential characteristics as democracies in a recognizable sense.

With these basic principles in mind, I would suggest four categories of practical, normative impact of the "demoicracy" concept:

Understanding the EU and its Crisis through the Lens of Demoicracy: A Conversation (NYU Law School, March 7-8)

On March 7-8, network members Kalypso Nicolaïdis and Joseph Weiler, together with the Straus Institute for the Advanced Study of Law & Justice and the Jean Monnet Center for International and Regional Economic Law & Justice at NYU School of Law, are organizing a conference entitled 'Understanding the EU and its Crisis through the Lens of Demoicracy: A Conversation.'  The abstract and possible themes are reproduced below and more details can be found here.  If you will be in New York on those days and are interested in participating, please contact Straus@nyu.edu.

* * *

Discussion Abstract: Conversation will be based around the two pieces on demoicracy to be published in the March 2013 issue of JCMS by Cheneval/Schimmelfennig and Nicolaidis. Initial commentaries will be offered, inter alia, by Joseph Weiler on messianism and the fate of demoicracy; Bellamy and Dario Castiglione on issues of representation and citizenship; and Christian Joerges on issues of law and politics through a demoicratic lens.

Possible Themes: What does “demoicracy” mean; How does the concept relate to the debate on European constitutionalism and international law; What are the institutional implications of a demoicratic understanding and how should we combine vertical and  horizontal dimensions; What kinds of democratic expression best fit a demoicratic polity; Is European demoicracy stable and to what extent is it threatened by the current crisis; What determines whether a demoicracy is no longer a demoicracy – e.g. is “not a state” a useful criterion; How does a demoicracy bypass stalemates and veto players; How can we best combine normative and deductive methods in elaborating a demoicratic approach?