COMPLEX LEGITIMACY IN COMPOUND POLITIES: THE EU AS EXAMPLE

Abstract

Compound polities such as the EU combine multilevel governance (MLG) and multilevel polities (MLPs). They are said to suffer from serious democracy deficits. I argue that legitimacy is more complex and propose to clearly distinguish and acknowledge serious trade‐offs between constitutional (liberal), democratic and output legitimacy. It is urgent to inquire whether it is possible and, if so, how to make compound polities both more constitutional and more democratic (more transparent, open and inclusive, easier to control, more representative and politically legitimate), without sacrificing effectiveness and efficiency as a result.

Notes

* This article is based on my longer German article ‘Komplexe Bürgerschaft’ in S. Zurbuchen, ed. 2007. Bürgerschaft und Migration. Münster: LIT, pp. 53–90.

1. Habermas’ discourse‐theory is a specific variety of consent theory stating that, under the conditions of ‘herrschaftsfreiem Diskurs’ we all agree on basic moral issues (see my extensive criticisms in Bader 1984, 1993).

2. Outlines of an alternative theory can be found in Luhmann (1984), (see also my critical re‐appraisal in Bader 2001a); Hirst (1994); and my introduction (Bader 2001b).

3. Cf. my own essays on the concept of citizenship (Bader 2008b), the issue of exclusion (Bader 2005), the issue of transnational culture and loyalty; citizenship, identity and loyalty in the EU (Bader 1999, 2007; Bauböck 2007) and the relationship between patriotism and cosmopolitanism.

4. Cf. Benz (2001, 2003, 2004); Hooghe and Marks (2006); Schmitter (2000, 2001) and Héritier (2002, 2003). Normative concepts, theories and standards of good or accountable governance have not kept pace with multi‐level polities (MLPs) and multi‐level governance (MLG) (Hoekema et al. 1998; Zeitlin 2005a: 25). This is also true of concepts, theories and standards of democracy (Schmitter 2000; Scharpf 2001, 2002, 2003; Benz 2000, 2001, 2009).

5. Cf. also Schmidt (2006). Terminologically preferable to MLG I and MLG II (cf. Hooghe and Marks 2006), as otherwise the use of the term ‘governance’ gets out of hand (cf. also Treib et al. 2006). The concept of MLP does not imply claims of ‘autonomy’ of the levels, or of ‘hierarchy’ (contrary to suggestions by Besselink 2009), but ‘composite’ (Besselink) or ‘compound’ (Schmidt) polity is as good as MLP freed from ideologies of isolationism, absolutist sovereignty or ‘primacy’.

6. For moral pluralism: Bader and Saharso (2004), Bader (2007a).

7. Cf. Moravcsik (2005: 369). Cf. also the balanced critique of Føllesdal and Hix (2005).

8. Bartolini (1999: 35) refers in this connection to ‘territorial representation’; Héritier (2003) to ‘executive representation’.

9. If at all, it should entail legitimising specific political decisions by Europe‐wide referendums held simultaneously in all the member states.

10. The radical utopian yardstick of consensus would then have to be replaced with down‐to‐earth criteria of fair deliberation and negotiation (Honig 2007); ‘moderately agonistic democracy’ (Zeitlin 2005a: 4, 10; Bader 2007a, Ch. 5; 2008a; Wiener 2007;) is more sober compared with Elstub’s ‘deliberative and associational’ model (2008).

11. See also Lord and Magnette (2004). See my critique of the vexatious debate on the lack of European identity and loyalty and the lack of a European nation (Bader 2007). The heated debate on the legitimacy of the various forms of capitalism and of the various welfare institutions in the EU had far more influence on the ‘No’ vote in the French and Dutch referendums than the substance of the constitutional treaty or the EU’s democratic deficit as such (Cf. also Fossum and Trenz 2006).

12. For the labour movement and trade unions: Schmitter (2000); for immigrant minorities: Koopmans et al. (2005); for global Internet regulations: Bernstorff (2003). On top of this, potential new participants are not familiar with the agenda or the decision‐making process, nor do they have established networks or access to the relevant institutions.

13. See also Schmitter and Trechsel (2007). See Greenwood (2007) for subsidies and other opportunities provided by the Commission to partly rectify these inequalities. Obviously there is much more to say on the opportunities to improve the quality of democratic participation precisely arising from the nature of the EU as MLP, as an anonymous reviewer rightly reminded me, but space prevents this and much can actually be found in texts by Schmitter, Trechsel, Greenwood and others referred to above.

14. Often concepts and criteria as ‘transparency’, ‘publicity’, ‘equity’, ‘democracy’, ‘efficiency’, ‘responsiveness’, ‘responsibility’, ‘integrity’, ‘accountability’ and ‘good governance’ are not distinguished but used interchangeably (Bovens 2006: 8f.). I confine myself here to (a) transparency and openness and (b) accountability in the narrow sense following Bovens’s definition.

15. Bovens (2006: 18f.) thus distinguishes between corporate, hierarchical, collective and individual accountability.

16. Public negotiations (on collective employment agreements, coalition agreements, EU treaties, etc.) conducted by representatives of conflicting interests with strict mandates are unproductive because they do not leave any room for the necessary compromises. Productive deliberations that result in promising solutions, based on a redefinition of the cognitive or normative frames, the situation and the problem or the interests at stake, require continuity, trust and ring‐fenced areas for experimentation. Zeitlin’s criticism—that deliberations in the Employment Committee, the Social Protection Committee and the Economic Policy Committee took place behind closed doors, hence their internal debates escaped public scrutiny (Zeitlin 2005a: 12, 23)—only shows that, unlike Føllesdal and Hix (2005: 20f.) and Curtin (2003: 57, 62, 64, 67) he does not take this trade‐off seriously.

17. Socio‐technical system theories (of labour and organisation), theories of relatively highly coordinated capitalist market economies and theories of deliberative democracy are over‐optimistic in this respect. Neo‐liberal and neo‐functionalist theories, on the other hand, support the incompatibility thesis. On this point I disagree with Zeitlin’s thesis that both legitimacy and effectiveness depend on the ‘participation of the widest possible range of stakeholders’ (Zeitlin 2005a: 11; my emphasis).

18. For MLPs in the EU cf. e.g. Benz (2003: 13). For MLG cf. Héritier’s New Modes of Governance Project, at http://www.eu-newgov.org/public/Research.asp.Cf also Zeitlin (2005a: 11. As Bernstorff (2003: 524) rightly points out, ‘European governance arrangements’ differ from ‘global governance networks’, e.g., in that they are enshrined in a legal system that is able, at least potentially, to guarantee a minimum degree of balanced participation.

19. Cf. the Commission’s criteria for decisions on what NGOs should be included in the Consultation, the European Commission and Civil Society database (Curtin 2003: 59ff.). Cf. also Schmitter’s (2001) eight general principles for the internal decision rules of European governance arrangements. Space prevents to discuss this key question of who should be represented in EUROGOV arrangements and who should decide this in which way.

20. Taking trade‐offs seriously and re‐iterating them, as I do in this article, is obviously only a first step. ‘Contributing fully’ to the resolution of these trade‐offs, as an anonymous reviewer asked for, is another thing, indeed. Here I had to confine myself to indicating some ways in which these trade‐offs can be most productively addressed by a contextual political theory.