Legitimacy is a shared expectation among actors in an
arrangement of authority such that the actions of those who rule are accepted
voluntarily by those who are ruled because the latter are convinced that the
actions of the former conform to pre-established and acceptable norms.
From this, I draw
the following implications:
(1) The basis upon
which these norms are pre-established can vary from one arrangement to another
– not only from one country or culture to another, but also within a single
country/culture according to function or location. While it is often claimed
that in the contemporary context “democracy” provides the exclusive basis for
exercising authority, this denies the possibility (and obvious fact) that
particular arrangements within an otherwise democratic polity can be (and often
are) successfully legitimated according to other norms.[1]
It also obscures the fact that “democracy” can be defined normatively and
institutionalized historically in such a different fashion that authority
relations which are legitimate in one democracy would be regarded as quite
illegitimate in another. The “coincidence” that all of the EU members are
self-proclaimed democracies and recognize each other as such does not eo ipso provide the norms for its
legitimation – indeed, well-entrenched differences in the democratic
institutions of its members may actually make it more difficult.
(2) The unit
within which relations of sub- and super-ordination are being voluntarily
practiced can vary in both time and space. While there is a tendency in the
political science literature passively to accept the sovereign national state
as the “natural” and “exclusive” site for legitimacy, there is no reason why
other (sub- or supra-national) “polities” –provided that they have sufficient
autonomy in making and implementing collective decisions– cannot have their own
normative basis of authority. In the
case of the EU, the problem is compounded by the simultaneous need to
legitimate – not only what the unit should be, i.e. to define what “
(3) The norms must
be “shared” by the actors, both those who rule and those who are ruled. This
implies, first of all, that they must know who they are and what their
respective roles should be. It also implies that the exercise of authority is
“systemic”, i.e. that it is embedded in a collectivity that is
sufficiently interdependent and mutually trusting so that disputes over the
validity of rules can be (and usually are) resolved by the intervention of
third parties within them. Institutions such as courts specialize in this
“referential” behavior, but most disputes over rules involve less formal
interactions within civil society and between firms in which the intervention
of outsiders (actual or potential) is sufficient to produce a mutually accepted
outcome. The citizens/subjects/victims/beneficiaries of the EU do not yet know
who they are – and not all of them are members of it and, therefore, entitled
to participate in its government. Moreover, they remain anchored in relatively
independent polities of varying size and power whose roles within EU
institutions have yet to be established definitively. Nor have they achieved
the level of social interdependence that allows them to rely on informal –“social”,
“pre-political” or “extra-juridical”– means for resolving disputes
legitimately.
(4) The actors
involved may be individuals or collectivities of various sorts. The literature
conveniently makes the liberal assumption that the unique judges of legitimacy
are individual human beings. This allows it to rely heavily on notions of
family socialization, “moral sentiment”, and a personal ethic of responsibility
as the source of norms and the virtually unconscious mechanism for their
enforcement. And this in turn tends to lead one to the conclusion that it is
only in polities that have previously established a high degree of cultural
homogeneity –e.g., nation-states– that legitimate political authority is
possible. When one introduces, however, the unorthodox idea that most of the
exchanges in modern political life are between organizations and, moreover,
that these organizations share norms of prudence, legal propriety and “best
practice” that transcend individual preferences and even national borders, it
then becomes more possible to imagine how a “non-national” and “non-state”
polity such as the EU might be able to generate valid and binding decisions. Which
is not the same thing as to say that it will be easy for it to come up with
such norms. Given all the caveats introduced above, plus the fact that in such
a “multi-layered” and “poly-centric” arrangement as the EU, it may be very
difficult to trace the origin and responsibility for legitimizing norms.
(5) The basis for
voluntary conformity is presumably normative, not instrumental, consequentialist
or strategic. In a legitimate polity, actors agree to obey decisions that they
have not supported made by rulers whom they may not have voted for. They also
agree to do so even if it is not in their (immediate and self-assessed)
interest to do so – and they are expected to continue to do so even when the
effectiveness of the polity is in manifest decline. Needless to say, it will not always be easy
to assess if this. Rulers often can control the means of communication and
distort the flow of information to make it appear as if they were following
prescribed norms; the ruled may only be pretending to comply in order to build
up a reputation that they can subsequently “cash in” for material or other
self-regarding purposes. Conversely,
resistance to specific commands –whatever the accompanying rhetoric– may have
nothing to do with challenging the legitimacy of the authority that issued
them, just with the performance of individual rulers or agencies. Needless to
say, in the case of the EU the compelling nature of norms is even more
difficult to gauge. The intergovernmental nature of its Council of Ministers
and the European Council virtually licenses actors to pursue national interests
exclusively – or, at least, to proclaim to their citizens that they are doing
so. The confidentiality of its many committees makes it almost impossible to
detect when interaction produces a shared norm rather than a strategic
compromise or a concession to hegemony.
Add to all this, the propensity for national rulers who can no longer
“deliver the goods” themselves to blame the obscure and distant processes of
European integration when they have to take unpopular decisions and you have a
polity that is bound to appear less legitimate than it is.
From this
conceptual analysis, I draw the following conclusion: if we are to make any
sense of the present and future legitimacy of the European Union, we have to
reach a consensus concerning the apposite criteria –the operative norms– that actors
should apply when establishing their presumably shared expectations about how
its authority should be exercised.
Moreover, in the
present circumstance –at least until the EU has acquired sufficient properties
of stateness and nationality– one should not presume an isomorphism between the
norms operative in the respective national member states and those that should
prevail at the supra-national level. Most scholars naturally make this
presumption. This leads them inevitably to the conclusion that the EU must suffer
from a “democratic deficit” and that the only way of filling that deficit is to
insert “conventional democratic institutions” into the way it makes binding
decisions, e.g. assert parliamentary sovereignty, institute direct
elections for the President of the Commission and/or, above all, draft and ratify
a “federal” constitution. It is that natural tendency that I wish to contest,
although I am aware of the risk that the more that the EU uses distinctive
criteria in the design and evaluation of its institutions, the more difficult
it will be (at least, initially) to convince its citizens that what it is doing
is “really” democratic. Nevertheless, this is a political paradox that will
have to be tackled – and, like many such paradoxes, it is only by learning from
experience that the apparent contradiction can be resolved.
I am taking two things for
granted at this point:
(1) that the apposite
criteria for the legitimation of the EU will have to be “democratic”, but only in some fundamental or foundational
sense – and not necessarily in terms of specific institutions or decision-rules;
(2) that the individual
citizens and collectivities that are members of the EU, now and for the
foreseeable future, share a “reasonable pluralism” in the interests and
passions that they wish to obtain through the integration of
Just a bit of explication
of both points:
(1) The meaning and,
hence, the institutions and values of democracy have changed radically over
time. Robert Dahl has spoken of several “revolutions” in its past practice
(often without their proponents being aware of it) and argued that “democracy
can be independently invented and reinvented whenever appropriate conditions
exist”.[2] The European Union is
unavoidably part and parcel of these changes. Not only must it reflect
transformations in the nature of actors (e.g. from individual to
collective citizens) and role of the state (e.g. from redistribution to
regulation) that are well underway in the ‘domestic democracies’ of its member
states, but it must also adapt to its own uniqueness as a non-national,
non-state, multi-level and poly-centric polity that encompasses an
unprecedented (for Europe) variety of cultures, languages, memories and habits
and is expected to govern effectively on an unprecedented scale – all this,
with very limited human and material resources at the present moment.
(2) Despite the
heterogeneity of its national and sub-national components and, hence, the
strong likelihood that major actors will not be in agreement on either rules of
the game or substantive goals, its members are “reasonably pluralistic”, i.e.
the range of their differences is limited and they are pre-disposed to bargain,
negotiate and deliberate until an agreement is found. To use another expression
of John Rawls, those who participate in the EU enjoy an “overlapping
consensus”.[3]
Moreover, they understand and accept that the outcome of the process of
integration will itself be pluralistic, i.e. it will protect the
diversity of experiences rather than attempt to assimilate them into a single
“European” culture or identity.
Based on this (interim)
conclusion, I am first convinced that it is neither feasible nor desirable to
try to democratize the European Union tutto
e sùbito -completely and immediately.[4]
Not only would the politicians not know how to do it, but there is also no
compelling evidence that Europeans want it. Nothing could be more dangerous for
the future of an eventual Euro-democracy than to have it thrust upon a
citizenry that is not prepared to exercise it, and that continues to believe
its interests and rights are best defended by national not supranational
democracy.
Moreover, the EU at this
stage in its political development neither needs, nor is prepared for a
full-scale constitutionalization of its polity. The timing is simply wrong. In
the absence of revolution, coup d’état, liberation from foreign occupation,
defeat or victory in international war, armed conflict between domestic
opponents, sustained mobilization of urban populations against the ancien régime and/or major economic
collapse, virtually none of its member states have been able to find the
“political opportunity space” for a major overhaul of its ruling institutions.[5]
The fact that all of its states (with one exception) have written constitutions
and that this is a presumptive sina qua
non for enduring democracy indicates that at some time this issue will have
to be tackled -if the EU is ever to be democratized definitively- but not now!
However, as I have
explored in a recent book, it may be timely to begin sooner rather than later
to experiment with improvements in the quality of embryonic Euro-democracy
through what I call “modest reforms” in the way citizenship, representation and
decision-making are practiced within the institutions of the European Union.[6]
Even in the absence of a comprehensive, i.e. constitutional, vision of
what the supra-national end-product will look like, specific and incremental
steps could be taken to supplement (and not supplant) the mechanisms of
accountability that presently exist within its member states. Since, as seems
obvious to me, the rules and practices of an eventual Euro-democracy will have
to be quite different from those existing at the national level, it is all the
more imperative that Europeans act cautiously when experimenting with political
arrangements whose configuration will have to be unprecedented, and whose
consequences could prove to be unexpected – perhaps, even unfortunate.
I will not enter into the
details of the twenty-some “modest” (and some not so modest reforms) that I proposed
in this book for the simple reason that I am not convinced that, even in the
unlikely event that all of them were implemented, their joint impact would
succeed in legitimizing the EU. Introducing one or another of them au fur et à mesure might improve
selected aspects of the regime’s capacity to invoke voluntary compliance, but
given the “systemic” aspect that was mentioned above, one should not expect
miracles. For one thing, it would take some time for any one of them to produce
its intended effects – especially, since several of them were calibrated to
take into consideration the pace and extent of Eastern Enlargement. All of
them, despite their modesty, entail unforeseeable risks and are likely to
generate unintended consequences – indeed, the entire exercise was predicated
upon exploiting these political externalities to press gradually and stealthily
toward further democratization.
My second (“very
important’) implication is that marginal improvements in the legitimacy of the
European Union are much more likely to come from the admittedly “fuzzy” but
innovative practices of governance
than from the much more clearly delineated and conventional institutions of government.
III. Another definition
and (more than) seven implications
The concept of
“governance” has spread with such astonishing rapidity over the past three
decades and has been applied by both academics and practitioners in so many
different settings that it must connote something significant. I have become convinced that behind all this
capaciousness lurks a distinctive method or, better, mechanism for resolving
conflicts and solving problems that reflects some profound changes in the
exercise of authority that have been emerging in almost all contemporary
societies and economies - and, not just in those that are trying to catch up
with the more developed ones. Capturing what is distinctive about this method
has not been helped by the fact that the concept is almost always preceded by a
qualifier such as “corporate”, “participatory”, “democratic”, “stakeholder”,
and of course, “good”, Here, however, is
my attempt to grasp that core meaning:
Governance is a method/mechanism for dealing with a broad range of
problems/conflicts in which actors regularly arrive at mutually satisfactory and
binding decisions by negotiating and deliberating with each other and
co-operating in the implementation of these decisions.
Hidden in this complex and
dense definition are a number of implications.
(1) Governance rests on
horizontal forms of interaction between actors who have conflicting objectives,
but who are sufficiently independent of each other so that neither can impose a
solution on the other, and yet sufficiently interdependent so that both would
lose if no solution were found.[7]
(2) In contemporary
developed societies the actors involved in governance mechanisms are usually
non-profit, semi-public and, at least, semi-voluntary organizations with
leaders and members; and it is the embedded-ness of these organizations into
something approximating a civil society that is crucial for the success of
governance.
(3) These organizations do
not have to be equal in their size, wealth or capability, but they have to be
able to hurt or to help each other.
(4) The participating
organizations interact not just once to solve a single common problem, but
repeatedly and predictably over a period of time to deal with a range of
functionally related issues.
(5) This implies that they
can learn more about each other’s preferences, exchange favors, experience
successive compromises, widen the range of their mutual concerns and develop a
commitment to the process of governance itself. Here, the code-words tend to be
trust and mutual accommodation - specifically, trust and mutual accommodation
between organizations that effectively represent more or less permanent social,
cultural, economic or ideological divisions within their respective societies.
(6) Although it is not
explicitly stated, the rule for arriving at “mutually satisfactory and binding”
decisions in governance arrangements is usually consensus – definitely not
voting among equals (or weighted participants, and even more definitely not
imposition by the most powerful or the most concerned. In principle,
negotiation and deliberation should be sufficient to produce an outcome that
may not be unanimously favored, but accepted by all. Its bindingness rests on a shared preference
for avoiding either no decision at all or the un-coordinated actions of member
governments.
Also implicit is the
assumption that participation in such arrangements is voluntary. Actors can opt-in and opt-out of them,
provided they are willing to forego their estimated benefits or refuse to
accept their additional costs. Needless to say, a dynamic notion of governance
arrangements would stress their tendency to become “path dependent”, i.e.
to lock in exclusive advantages, as well as to generate increased defection
costs.
Note also that, in its
ideal-typical configuration, governance is not just about making consensual
decisions via consultation, deliberation, and negotiation, but also about
implementing policies. Indeed, the longer and more extensively it is practiced,
the more the participating organizations develop an on-going interest in this
implementation process since they come to derive a good deal of their
legitimacy (and material rewards) from the administration of mutually rewarding
policies.
Governance is not a goal
in itself, but a means for achieving a variety of goals that are chosen
independently by the actors involved and affected. Pace the frequent
expression, “good governance”, resort to it is no guarantee that these goals
will be successfully achieved or equally satisfactory. It can produce “bad” as
well as “good” outcomes. Nevertheless, it may be a more appropriate method than
the more traditional ones of resorting to public coercion or relying upon
private competition.
Moreover, it is never
applied alone, but always in conjunction with state and market mechanisms. For
“governance” is not the same thing as “government”, i.e. the utilisation
of public authority by some subset of elected or (self-) selected actors,
backed by the coercive power of the state and (sometimes) the legitimate
support of the citizenry to accomplish collective goals. Nor is it just another
euphemism for the “market”, i.e. for turning over the distribution of
scarce public goods to competition between independent capitalist producers or
suppliers.
It goes without saying
that, if this is the case, the legitimacy of applying governance to resolving
conflicts and solving problems will depend upon different principles and
operative norms than are used to justify the actions of either governments or
markets. It will be my purpose in the remaining portion of this essay to
elaborate upon this implication by specifying what these principles and norms
might be.
The fact that governance
arrangements are typically thought to be “second-best solutions” is a serious
impediment to their legitimation. If states and markets worked well -and worked
well together- there would be no need for governance. It only emerges as an
attractive option when there are manifest state failures and/or market
failures. It is almost never the initially preferred way of dealing with
problems or resolving conflicts. States and markets are much more visible and
better justified ways of dealing with social conflicts and economic
allocations. Preference for one or the
other has changed over time and across issues following what Albert Hirschman
has identified as a cycle of “shifting involvements” between public actions and
private interests.[8] Actors, however, are familiar with both and
will “naturally” gravitate toward one of them when they are in trouble.
Governance arrangements tend to be much less obvious and much more specific in
nature. To form such an arrangement successfully requires both a good deal of
“local knowledge” about those affected and, not infrequently, the presence of
an outside agent to pay for the initial costs and to provide reassurance -even
coercive backing- in order to overcome the rational tendency not to
contribute. As we shall see, this almost
always involves some favorable treatment from public authorities as well as
(semi-)voluntary contributions from private individuals or firms. What is novel
about the present epoch is that, increasingly, support for governance
arrangements has been coming from private (and not just public) actors and from
trans- and supra-national sources (and not just from national and sub-national
ones). And the European Union has been among the most active and innovative
producers of such arrangements.
IV. Combining governance
and legitimacy in the European Union
With its “White Paper” on
European governance,[9]
the EU literally announced its intention to stake its future legitimacy on the
successful application of governance arrangements in order to solve interest
conflicts among its member states and satisfy normative political expectations
across its national publics. In so doing, it also implicitly recognized that it
could not compete on legitimacy grounds with well-established national
democracies. Whatever modifications might be introduced in its rules and
practices –including those in the draft Constitutional Treaty– they would not
suffice to convince most of its citizens that the EU could function as a
“real-existing”
liberal-representative-parliamentary-electoral-constitutional-democratic
regime. Something else had to justify
why the decisions of this unavoidably complex and remote trans-national
regional polity were legitimate and worthy of being obeyed. And ‘governance’
was chosen to fill this bill of particulars.
It should be noted that
the evidence for a serious “legitimacy deficit” is still sporadic and thin: a
steady decline in turnout for European Parliamentary elections, lower
proportions of citizens in mass Eurobaromètre surveys declaring
that “the EU has been a good thing for their country”, an increase in
complaints before the European Court of Justice. None of these was or is
especially threatening. Matched against this was the impressive extent to which
member states and mass publics have quietly consented to the “authoritative
allocations” of its myriad committees, the directives of its Council of
Ministers and the decisions of its Court of Justice. It is certainly premature
to claim that the EU is a “producer” rather than a “consumer” of legitimacy –
depending, as it does so heavily, on the borrowed authority of its Member
governments. As David Beetham and Christopher Lord have argued so persuasively,
it is the interaction between the different levels of aggregation and identity
that reciprocally justifies the process of European integration.[10]
In such a complex and still contingent polity, it becomes rather difficult to
discern who is loaning and who is borrowing legitimacy – not to mention, for
what purpose and according to what principles.
Much of what is happening
within the EU on a regular basis is more the result of issue-specific
expediency, pragmatic tinkering, time pressures, the diffusion of “best
practices”, ad hoc and even ad hominem solutions than of shared
principles and explicit design. My (untested) presumption is that, if the EU
were to elaborate and defend such principles and to design its arrangements of
governance accordingly, this would improve their legitimacy in the long run
and, just maybe, convert the EU from a consumer of national legitimacy into the
producer of a new type of supra-national legitimacy.
V. Inserting some generic design principles
First, one should start
with the notion of chartering,
i.e. of how a governance arrangement gets established at the EU
level (hereafter an EGA) to deal with a particular task. This question of “why are these actors making
decisions on this issue?” should be resolved through an explicit delegation of
authority from a legitimate pre-existing institution, i.e. by means of a
charter.
This notion of a charter
rests on the presumption that a particular issue or policy arena is
“appropriate” for such an arrangement, ergo,
it is not better handled by good old-fashioned market competition or government
regulation.[11]
What has to be demonstrated and defended is the notion that some particular set
of actors is thought to be
capable of making decisions that will resolve the conflicts involved and provide
the resources necessary for dealing with the issue pre-designated by its
charter. Moreover, these decisions once implemented will be accepted as
legitimate by those who did not participate and who have suffered or enjoyed
their consequences. And, if this were not enough, a successful EGA would also
have to demonstrate that its capacity to resolve conflicts and provide
resources is superior to anything that a national or sub-national arrangement
could have done. Looked at strictly from this perspective, there may not be
that many policy arenas that should acquire “their” respective EGAs!
Six Principles for
Chartering EGAs:
(1) THE PRINCIPLE OF
‘MANDATED AUTHORITY’: No EGA should be established that does not have a clear
and circumscribed mandate that is delegated to it by an appropriate EU
institution. Any EU institution should be entitled to recommend the initial
formation and design of an EGA, i.e. its charter, its composition and
its rules, but (following the provisions of the Treaty of Rome) only those
approved by the Commission should actually be established, whether or not they
are subsequently staffed, funded, “housed” and/or supervised by the Commission.
(2) THE ‘SUNSET’
PRINCIPLE: No EGA should be chartered for an indefinite period, irrespective of
its performance. While it is important that participants in all EGAs should
expect to interact with each other on a regular and iterative basis (and it is
important that the number and identity of participants be kept as constant as
possible), each EGA should have a pre-established date at which it should
expire. Of course, if the EU institution
that delegated its existence explicitly agrees, its charter can be renewed and
extended, but again only for a definite period.
(3) THE PRINCIPLE OF
‘FUNCTIONAL SEPARABILITY’: No EGA should be chartered to accomplish a task that
is not sufficiently differentiated from tasks already being accomplished by
other EGAs and that cannot be feasibly accomplished through its own
deliberation and decision.
(4) THE PRINCIPLE OF
‘SUPPLEMENTARITY’: No EGA should be chartered (or allowed to shift its tasks)
in such a way as to duplicate, displace or even threaten the compétences of existing EU institutions.
European governance arrangements are not substitutes for European government,
but should be designed to supplement and, hence, to improve the performance of
the Commission, the Council and the Parliament.
(5) THE PRINCIPLE OF
‘REQUISITE VARIETY’: Each EGA should be free –within the limits set by its
charter– to establish the internal procedures that its participants deem
appropriate for accomplishing the task assigned to it. Given the diversity
inherent in these functionally differentiated tasks, it is to be expected that
EGAs will adopt a wide variety of distinctive formats for defining their work
program, their criteria for participation and their rules of decision-making –
while (hopefully) conforming to similar principles of general design.
(6) THE ‘HIGH RIM’ OR
‘ANTI-SPILL-OVER’ PRINCIPLE: No EGA should be allowed by its mandating
institution to exceed the tasks originally delegated to it. If, as often
happens in the course of deliberations, an EGA concludes that it cannot fulfill
its original mandate without taking on new tasks, it should be required to
obtain a specific change in its mandate in order to do so.[12]
Second, now that the EGA
has been chartered, it must be composed,
i.e. those who are to participate in it must be selected (and not
elected). Whether specified ex ante in the charter or chosen ex post
by some authoritative body, these persons (or, better said, representatives of
organizations) should have some justifiable reason for being included in the
negotiations and deliberations and for entering into the (anticipated)
consensus. This code-word in the present
discussion surrounding the concept of governance is stakeholders. Unlike
democratic government where all citizens are presumed to have an equal
right to participate, in governance arrangements only some subset of these
citizens, i.e. those who have expressed a greater concern or are deemed
to be more likely to be affected, should participate. The calculation seems to
be that if stakeholders can reach a consensus on what is to be done and, even
more, if they can continue to agree on how to implement what has been chosen,
their fellow citizens will conform as if they themselves had had the
opportunity to participate.
Four
Principles for Composing EGAs:
(1)
THE MINIMUM
THRESHOLD PRINCIPLE: No EGA should have more active participants than is necessary
for the purpose of fulfilling its mandated task. It has the autonomous right to
seek information and invite consultation from any sources that it chooses;
however, for the actual process of drafting prospective policies and deciding
upon them, only those persons or organizations judged capable of contributing
to the governance of the designated task should participate.[13]
(2) THE STAKE-HOLDING
PRINCIPLE: No EGA should have, as active participants, persons or organizations
that do not have a significant stake in the issues surrounding the task
assigned to it. Knowledge-holders (experts) specializing in dealing with the
task should be considered as having a stake, even if they profess not to
represent the interests of any particular stakeholder.[14]
(3) THE PRINCIPLE OF
‘EUROPEAN PRIVILEGE’: All things being equal, the participants in an EGA should
represent Europe-wide constituencies.[15]
Granted that, in practice, these representatives may have to rely heavily on
national and even sub-national personnel and funding and may even be dominated
by national and sub-national calculations of interest, and granted that the
larger the constituency in numbers, territorial scale and cultural diversity,
the more difficult it may be to acquire the “asset specificity” that provides
the basis for stake-holding, nevertheless, the distinctive characteristic of a European governance arrangement is
contingent on privileging this level of aggregation in the selection of
participants.
(4) THE ADVERSARIAL
PRINCIPLE: Participants in an EGA should be selected to represent
constituencies that are known to have diverse and, especially, opposing
interests. No EGA should be composed of
a preponderance of representatives who are known to have a similar position or
who have already formed an alliance for common purpose.[16] In the case of ‘knowledge-holders’ who are
presumed not to have constituencies but ideas, they should be chosen to
represent whatever differing theories or paradigms may exist with regard to a
particular task.
Third,
now that the EGA is chartered and composed, it must take and implement decisions.
As we have seen above, the usual rules dominating inter-governmental
organizations (unanimity) or democratic federations (simple or qualified
majorities) should not apply. Rather, a
deliberately vague “meta- rule” should prevail, namely, consensus. But what are the operative principles that
could frame this process of consensus formation?
Eight
Principles for Decision-Making in EGAs:
(1)
THE PRINCIPLE
OF ‘PUTATIVE’ EQUALITY: All participants in an EGA should be considered and
treated as equals, even when they represent constituencies of greatly differing
size, resources, public or private status, and “political clout” at the
national level. No EGA should have
second and third class participants, even though it is necessary to distinguish
unambiguously between those who can participate and those who are just
consulted.
(2) THE PRINCIPLE OF
HORIZONTAL INTERACTION: Because of the presumption and practice of equality
among participants, the internal deliberation and decision making processes of
an EGA should avoid as much as possible such internal hierarchical devices as
stable delegation of tasks, distinctions between “neutral” experts and
“committed” representatives, formalized leadership structures, deference
arrangements, etc. and should encourage flexibility in fulfilling collective
tasks, rotating arrangements for leadership and rapporteurship, extensive verbal deliberation, -- along with a
general atmosphere of informality and mutual respect.
(3) THE PRINCIPLE OF
CONSENSUS: Decisions in an EGA will be taken by consensus rather than by vote
or by imposition.[17]
This implies that no decision can be taken against the expressed opposition of
any participant, although internal mechanisms usually allow for actors to
abstain on a given issue or to express publicly dissenting opinions without
their exercising a veto. Needless to say, the primary devices for arriving at
consensus are deliberation (i.e. trying to convince one’s adversaries of
the bien-fondee of one’s position),
compromise (i.e. by accepting a solution in between the expressed
preferences of actors) and accommodation (i.e. by weighing the intensity
of the preferences of other actors). Regular and iterative interaction among a
stable set of representatives is also important, although this should be
temporally bounded.
(4) THE ‘OPEN DOOR’
PRINCIPLE: Any participant should be able to exit from an EGA at relatively
modest cost and without suffering retaliation in other domains – either by
other participants or EU authorities. Moreover, the former participant has the
right to publicize this exit before a wider public (and the threat to do so
should be considered a normal aspect of procedure), but not the assurance that,
by exiting, he or she can unilaterally halt the process of governance.
(5) THE PROPORTIONALITY
PRINCIPLE: Although it would be counter-productive for influences to be
formally weighed or equally counted, it is desirable that across the range of
decisions taken by an EGA there be an informal sense that the outcomes reached
are roughly proportional to the specific assets that each participant
contributes (differentially) to the process of resolving the inevitable
disputes and accomplishing the delegated tasks.[18]
(6) THE PRINCIPLE OF
SHIFTING ALLIANCES: Over time within a given EGA, it should be expected that
the process of consensus formation will be led by different sets of
participants and that no single participant or minority of participants will be
persistently required to make greater sacrifices in order to reach that
consensus. Thanks to Item #14, this situation should be avoided, if only
because it will be so easy and costly for marginalized actors to exit.
(7) THE PRINCIPLE OF
‘CHECKS AND BALANCES’: No EGA should take a decision binding on persons or
organizations not part of its deliberations unless that decision is explicitly
approved by another EU institution that is based on different practices of
representation and/or of constituency. Normally, that EU institution will be
the one that “chartered” the EGA initially, but one can imagine that the
European Parliament through its internal committee structure could be accorded
an increased role as co-approver of EGA decisions.
(8) THE REVERSIBILITY PRINCIPLE:
No EGA should be empowered to take decisions that cannot be potentially
annulled and reversed by “rights-holders”, i.e. by European citizens
acting either directly through eventual referenda or indirectly through their
representatives in the European Parliament.
Finally, there are a set
of principles that, while not being either legal or democratic, are
“prudential” with regard to decisions taken by the governance arrangements of
such a complex, remote, multi-layered and poly-centric polity as the European
Union. They relate less to procedure than to substance, more to those
eventually affected than those that have participated in their formulation.
Meta-Principles
of Prudence for EGAs:
(1)
THE
PRECAUTIONARY PRINCIPLE: An EGA should in the substance of its decisions take
into account the full range of knowledge and, where that knowledge is uncertain
or incomplete, it should err on the side of assuming the worst possible
consequence – ergo, it should avoid
risks rather than maximize benefits when calculations about the latter are
inconclusive.
(2) THE FORWARD-REGARDING
PRINCIPLE: An EGA should in the substance of its decisions take into account
the furthest future projection of the consequences of its decisions. This
obviously poses a serious difficulty in terms of the composition of its
participants, e.g. who can legitimately represent as yet unborn
generations, but some “place at the table” should be occupied by persons or
organizations representing as long a time perspective as possible.
(3) THE SUBSIDIARITY
PRINCIPLE: No EGA should deal with an issue or make decisions about a policy
that could be handled more effectively or more legitimately at a lower level of
aggregation, i.e. at the level of member states or their sub-national
units. Inversely, no EGA should occupy
itself with an issue that cannot be resolved and implemented at the level of
(4) THE PRINCIPLE OF
(PARTIAL) TRANSPARENCY: No EGA should take up an issue or draft a projet de loi that has not been
previously announced and made publicly available to potentially interested
parties not participating directly in its deliberations. Conversely, none of
the participants in an EGA should make public the content of deliberations
while they are occurring, until a consensus has been reached. Once a decision
has or has not been made and participants are no longer capable of exercising a
veto, they should nevertheless be free to express their satisfaction/dissatisfaction
with it to whomever they please.
(5) THE PRINCIPLE OF
PROPORTIONAL EXTERNALITIES: No EGA should take a decision whose effects in
financial cost, social status or political influence (especially for those not
participating in it) is disproportionate either to the expectations inherent in
their original charter or general standards of fairness in society. When claims of disproportionate effect are
made, these externalities should be investigated and, where found to be
justified, compensated for by other EU institutions – in particular, by the
European Parliament.
Governance at the level of the EU is no panacea. It will not work to
resolve all policy issues and it will not work unless it is firmly based on
political as well as administrative design principles. And that means that
difficult choices involving the charter, composition and decision-rules of such
arrangements cannot be avoided or finessed. And, as emphasized above,
governance arrangements never work alone but only in conjuncture with community
norms, state authority and market competition.
The guiding hypothesis of
this article has been that ‘political engineers’ and ‘policy wonks’ should take
into account the principles outlined above if the arrangements they devise are
to generate legitimacy for the EU as whole. In my view, these guidelines are
neither autocratic, technocratic, nor democratic. They at least try to identify
and provide a justification for a distinctive mechanism of solving common
problems and resolving conflicts by governance.
Admittedly, these principles –as stated– are vague and underspecified.
They will require much more discussion and elaboration before they can be
“transposed” into operational norms and convincing justifications that could
guide the chartering of EGAs, determine the composition of those who
participate in them and regulate how they subsequently make and implement their
decisions. My suspicion is that few of them will be easy to capture in strictly
formal-legal terms. Just image how difficult it would be to define a priori and in unambiguous terms who
is a “stakeholder” in a given policy area – and, by inference, who is not
entitled to participate in it.
Those who have taken on
the challenge of exploiting governance at the EU level will have to be careful
not to use it as an excuse to expand the powers of the Commission – as was,
unfortunately, the case with the now widely-ignored White Paper on
Governance. According to my
interpretation, if taken seriously and not opportunistically, Euro-governance
could well lead to a proliferation of relatively independent regulatory
agencies and functionally specific taskforces with varying memberships and
degrees of supra-nationality – an outcome I have elsewhere labeled as a “condominio”. Far from promoting a “federatio” with the Commission as its
core of stateness, it could even drive the EU’s finalité politique in quite the opposite direction and, in the
process, create a radically novel form of regional polity.[20]
But long before this may
happen, I can foresee two key dilemmas that must be addressed. I will only raise them without further
explication:
(1) The proliferation of
EGAs tends to occur within compartmentalized policy arenas (and more so in the
EU than in its member states) – vide
the extremely autonomous powers conferred on the European Central Bank by its
charter. This leaves unresolved the large issue of how eventual conflicts
between decisions taken by different EGAs are going to be resolved. Multiple “governances” at the micro- or
meso-levels no matter how participatory, innovative, sustainable and legitimacy
conferring on their own, may end up generating macro-outcomes that were not
anticipated and that no one wants!
(2) The criteria for the inclusion
of participants and the making of decisions in EGAs are not generally
compatible with the prevailing democratic standards for legitimation used
within national and sub-national polities – although experimentation with
governance arrangements is occurring at all levels of aggregation. Before EGAs
can be reliably deployed and generate a sense of obligation among broader
publics, it may be necessary to spend a good deal of effort in changing
peoples’ notions of what democracy is and what it is becoming, as well as how
it has become necessary to supplement it at the supra-national level.
[1] Although it would be more accurate to stress that these “other” arrangements based on expertise, legality, personal reputation or just plain effectiveness are themselves embedded in a more encompassing framework of national democratic institutions that, at least potentially, have the power to amend or overrule whatever decisions are made by non-democratic means. This contextual property is sometimes overlooked by enthusiasts for central bank autonomy, independent regulatory agencies, oversight boards, judicial review, and so forth.
[2] On Democracy,
[3] J. RAWLS, Political Liberalism ,
[4] What I mean by “interim” is that, in the long run, the EU might well acquire the properties of a state and even of a nation – in which case, the deployment of conventional institutions of representation and decision-making and standard notions of citizenship might become much more desirable. However, for the foreseeable future, e.g. 20-25 years, the problem will be to protect and enhance the legitimacy of political institutions that do not have these properties – and that means relying upon novel arrangements and novel norms to justify them.
[5] I can only think of one clear case:
[6] How to Democratize the European Union … and Why Bother?, Lanham, Rowman & Littlefield, 2000.
[7] One frequently encounters in the literature that focuses on national or sub-national “governance” the concept of network being used to refer to these stable patterns of horizontal interaction between mutually respecting actors. As long as one keeps in mind that, with modern means of communication, the participants in a network may not even know each other -and certainly never have met face-to-face- it seems appropriate to extend it to cover transnational and even global arrangements.
[8] A.O. HIRSCHMAN, Shifting Involvements. Private Interest
and Public Action,
[9] European Commission, European Governance: A White Paper, COM(2001) 428 final,
[10] D. BEETHAM and C. LORD, Legitimacy and the European Union,
[11] One scholar who has given concerted attention to this problem is
Eleanor Ostrom. See, Governing the Commons: The Evolution of Institutions
for Collective Action ,
[12] N.B. that this does not mean that “log-rolling” and “package-dealing” should not be an integral part of the integration process, just that EGAs are not the appropriate sites for such activity. Decisions involving the negotiation of tradeoffs across circumscribed issue areas should be the purview of other EU institutions, i.e. the Commission, the Council of Ministers, the European Council and, hopefully in the future, the European Parliament.
[13] Another way of stating this point is to stress that all participants must possess some type or degree of “asset specificity”, i.e. they must demonstrably have material, intellectual or political resources that are apposite to the tasks to be accomplished.
[14] Needless to say, defining “the stakes” and those who hold them is bound to be politically contested, since the number of representatives and experts who can make that claim is potentially unlimited – thanks to the growing interdependence of policy domains. As an approximation, I propose that a relevant stake-holder be defined as a person or organization whose participation is necessary for the making of a (potentially) binding decision by consensus, and/or whose collaboration is necessary for the successful implementation of that decision. In practice, this is likely to be determined only by an iterative process in which those initially excluded make sufficiently known their claims to stake- and knowledge-holding so that they are subsequently included. Presumably, those initially invited to participate who turn out not to be indispensable for policy-making and implementation will leave of their own accord – although a persistent problem in EGAs is likely to be the absence of an effective mechanism for removing non-essential participants.
[15] This should not be interpreted narrowly to mean “EU-wide constituencies” since there may be significant stake-holders and knowledge-holders in prospective member-states and even in those that have explicitly chosen not to join the EU.
[16] To fulfil this principle, it may be necessary for the designers of EGAs to play a pro-active role in helping less well-endowed or more dispersed interests to get organized and sufficiently motivated to participate against their adversaries. Needless to say, this element of “sponsorship” intended to encourage a greater balance in adversarial relations can conflict with the subsequent principle of equality of treatment and status. It can also generate serious questions concerning the autonomy of such ‘sponsored’ organizations from EU authorities.
[17] N.B. this principle serves to distinguish EGAs from other institutions operating at the European level. For example, parliaments, courts, central banks and independent regulatory agencies may ultimately take their decisions by vote, even if they engage in extensive deliberation and seek to form a consensus beforehand. Some expert commissions and many executive bodies may decide by imposition when the actor recognized by the others as “superior in knowledge or stake” exercises his or her ‘sovereign’ authority.
[18] A more orthodox way of grasping this principle would be to refer to “reciprocity” – although this seems to convey the meaning of equal shares or benefits across some set of iterations. “Proportionality” is similar, but allows for the likelihood that stable inequalities in benefit will emerge and be accepted on the grounds of differential contributions or assets.
[19] This may be the only of the principles listed that has already been formally included (if not operationally defined) in the quasi-constitution of the EU, i.e. in the Treaty of Amsterdam.
[20] “Imagining the Future of the Euro-Polity with the Help of New Concepts”, in G. MARKS, F. SCHARPF, P.C. SCHMITTER AND W. STREECK, Governance in the European Union, London, Sage Publications, 1996, pp. 121-150.