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1 Introduction
The concept of political legitimacy within the European Union (EU) has gained considerable attention1 since Weiler discussed it in his seminal article.2 However, âthere are many ways to cut the conceptual cake of legitimacy in the European Unionâ3 and so its meaning remains elusive,4 compounded by a lack of structure to enable an analysis to be conducted5 and with different approaches tending to be adopted by different doctrinal disciplines (political science targeting political power relationships6 and law pursuing the law-making process7 and its institutional structure8).
The traditional view of legitimacy within a democracy is based on popular sovereignty9 where the consent of the governed is required to establish or disestablish governments and the power to govern is limited by delegation from the people.10 As Yack points out, this is very much state based as the governed or âthe peopleâ must constitute all of the people of the territory over which that government has power.11 This then reinforces the notion of the state as the fundamental political institution within the international and global community.
It is an obvious statement to make that the EU is not a state12 and, as Føllesdal illustrates, legitimacy for the EU is far more complex than the model described above.13 The most well known model of complex legitimacy is that of Scharpf,14 who has suggested that legitimacy has two aspects with different roles: input-orientated legitimacy (input legitimacy);15 and output-orientated legitimacy (output legitimacy).16 Other observers have suggested alternative theories of legitimacy but once they are analysed the theories can be broken down into Scharpfâs legitimacy criteria and other non-legitimacy elements. A classic example of this is the model of Beetham and Lord,17 who suggest that for a state to be legitimate it must demonstrate the necessary identity, democracy and performance18 in meeting the needs and values of citizens, which they then transpose to the model of the EU. The second and third criteria can be equated to input and output legitimacy whilst identity itself is a much contested concept that can be viewed from an individualistic perspective (how a person views his or her own position in society) or from a community perspective (how society determines who belongs and who does not). Instead of being an element of legitimacy it determines the construction of the political community not its legitimacy.
Input-orientated legitimacy requires a clear accountability of political action to the citizens of the polity or, as Bellamy and Castiglione state: âthe normatively conditioned and voluntary acceptance by the ruled of the government of their rulersâ.19 This definition is close to that of the concept of popular sovereignty and, although Dahl suggests that it is impossible to provide a definition for democracy as the term is used in many different ways,20 it also corresponds to a definition of democracy provided by Schmitter21 and Schumpeter.22 As such input legitimacy can be equated to democratic legitimacy and this has elicited considerable attention from EU commentators over the years, especially over the perception of the lack of democratic accountability of EU institutions and decision-making to the peoples of Europe.23 Since the coining of the term âdemocratic deficitâ in 1979,24 each treaty amendment has triggered another outbreak of academic writing on the existence of this democratic deficit and the failure to resolve it.25 Menon and Weatherill26 point out that many of these observers judge the limitations of the EU against a strict nation-state model and this model can change depending on which nation-state is chosen as the blueprint. Attempting to theorise the EU through a nation-state lens fails to take into account the supranational nature of the majority of the decision-making conducted by the EUâs institutions, let alone the intergovernmentalism that remains a feature of the EU even after the Lisbon Treaty. The reality is that Europe is made up of many peoples rather than a single people, so that without âthe peopleâ there can be no demos and, âif there is no demos, there can be no democracyâ27 with few mechanisms to promote a demos such as a common language, centrally organised political parties,28 harmonised education policies or a European rather than national mass media. As input legitimacy relies on public support29 or âpublic control with political equalityâ,30 then the lack of demos, and thus lack of EU statehood,31 creates significant hurdles to democratic accountability.32
However, as again noted by Menon and Weatherill,33 this lack of democratic accountability or input-legitimacy should not create a âcounsel of despairâ over the legitimacy of the EU as it opens up the possibility of alternative routes to establish the EUâs legitimacy.
This alternative route can be discovered in Scharpfâs concept of output-orientated legitimisation (henceforth output legitimacy). Here the determination of the legitimacy of the EU is perceived through reference to its output and Majone suggests that, as the Union is a âregulatory Stateâ, then that regulation is the route to measuring legitimacy.34 Much of the commentary on output legitimacy has focused on the economic side of the EU and in particular the internal market,35 equating legitimacy with efficiency that has provided observers with considerable flexibility but without structure or a model for determining the legitimacy of the EU. The key then to analysing the legitimacy of the EU is to provide a model through which the EUâs outputs can be evaluated. Once that model has been formulated then it can be applied to areas of regulatory output either on a micro or macro level.
The policy area to be examined through the lens of this model is the free movement rights of third country nationals (TCNs). Those ruled in Bellamy and Castiglioneâs definition,36 when considered in the context of the EU, include all the peoples resident in the EU. These are made up of citizens of the EU37 and TCNs. The position of the individual has been enhanced with the creation of citizenship of the Union and the rights that are correspondingly granted especially for free movement. Citizens of the EU are able to determine the extent of their rights to freedom of movement in a relatively logical and straightforward manner as the principle of free movement of persons was enshrined in the EC Treaty as one of the four fundamental freedoms. The Union, however, is not populated only by EU citizens, with an estimated 12.5 million38 TCNs legally resident in the Union in 1997 that had increased to 16.2 million39 by 2003 and approximately 20.1 million by 2010.40 These TCNs do not form a homogenous group as their population is made up of peoples with many different national identities spread throughout the EU. As such, the citizens of this so-called 28th state41 are a disparate group culturally, socially and economically, with the majority emanating from developing countries. However, from the sheer weight of numbers, it can be considered that TCNs have an important effect on, and play an important part in, the economy of the Union. They work, provide services, purchase goods, pay taxes and in general participate fully in the Europe-wide economy.42 Demographic trends indicate that the steady population growth in developing countries is paralleled by falling birth rates in Western Europe.43 This demographic pattern suggests that to ensure economic growth is sustained by the necessary workforce in the medium to long term, an increasing level of migration from third countries into the EU will be required.44 Therefore, the TCN population in the EU is likely to increase in real and proportional terms as it increases in importance economically.45 With this growing importance of TCNs to the EU it would be reasonable to assume that their free movement rights46 would be clearly defined, readily accessible and simple. This is not the case.47 Moreover, the extent of such rights has altered over time, as has their political perception by the Member States, with certain TCNs receiving more favoured status than others as the political momentum swings.
1.1 Structure of the book
Chapter 2 constructs the measurable benchmark, that of legal rationality, through which the free movement rights of TCNs will be analysed. Politics is concerned with power,48 the capacity of social agents to maintain or transform their social environment and the creation of a regulated order for managing human conflict and interaction. Law can be considered to be âthe enterprise of subjecting human conduct to the governance of rulesâ49 or âthe human attempt to establish social order as a way of regulating and managing human conflictâ.50 As such, law deals with human action and human social action, is the method used to enact the rules required to regulate this human social action and is the final outcome of the political process. From these definitions politics and law are inevitably intertwined with the laws and rules of the polity providing the positive evidence of the policy stance of the polity. Therefore, to assess the political legitimacy of the outputs of the EU the laws and rules of the polity as the final embodiment of its policy must be analysed. It is the legal rationality model that provides the criteria for scrutiny of the law consisting of three elements, each mutually exclusive and essential: formal; instrumental; and substantive rationality. Formal rationality requires legal doctrine to be free from contradiction and for rules to be the same for everyone; instrumental rationality requires these rules and legal doctrine to be action guiding whilst substantive rationality necessitates the norms underlying legal doctrine to be justified. They are mutually exclusive as they are comprised of different factors and have different ends, namely the avoidance of conflict between laws, guidance for action and the justification for such action. They are essential as the failure of a desideratum of rationality leads to a conclusion that the law is defective. Legal rat...
