Making The European Polity

Reflexive integration in the EU

Erik Oddvar Eriksen

• Publisher: Routledge
• Year: 2007
• Print ISBN:
  9780415363013
• eBook ISBN:
  9781134229499
• Topic: Politics & International Relations
• Subtopic: Global Politics
• Index: Politics & International Relations

Today's Europe is marked by an amazing pace of integration. The European Union now consists of twenty five member states, however there is confusion and disagreement about its future design.

Making The European Polity investigates how the European Union should develop and organize itself and offers a reflexive approach to integration based on the theory of communicative action. It conceives of the EU as a law based supranational polity lacking the identity of a people as well as the coercive means of a state and argues that it is a polity with an organized capacity to act, but no sole apex of authority. Making an important contribution to the theoretical discussions on the EU, these contributors explore a range of issues including legitimacy, post-national democracy and integration and provide in-depth analyses of social and tax policy, foreign policy, identity formation, the reform process and the constitutional effects of enlargement.

This book will appeal to all political scientists and particularly to students and researchers of European Politics.

Part I
Reflexive polity-building and post-national integration

1
Reflexive integration in Europe

Erik O. Eriksen

Today’s Europe is marked by a remarkable pace of integration. Major changes have taken place within a short period of time. The integration is deepening – a wide range of new policy fields have been subjected to integrated action and collective decision-making – as well as widening.¹ The European Union (EU) now consists of 25 member states. However, there is confusion and disagreement about its future design among experts as well as laymen. But despite disagreement the EU is currently about to transform itself and establish itself as an autonomous polity. It is about to proclaim itself as a political union with extended competencies. Since the late 1980s, European cooperation has progressed and changed the cooperative scheme of an international organization whose legitimacy derived solely from the member states – the Masters of the Treaties – to an organization in its own right. Increasingly, majority vote has replaced unanimity as a decision rule in several policy fields. Progressively the Union has obtained a resource basis of its own. It has become a polity which allocates and reallocates values throughout Europe. In fact, the EU, which is a creature of the member states, has contributed to transform them, either directly or by unleashing processes of mutual learning and adaptation.

These transformations are part of a process through which the European nation states transcend the Westphalian order. Integration in Europe, then, not only testifies to the Europeanization of the nation states but also to new forms of political governance emerging beyond the system of interstate relations. It constitutes a new type of political order that does not fit into the traditional dichotomy of intergovernmental versus nation-state regulation. What is the EU then? Integrated European cooperation has moved it beyond the status of a market regime, but does the EU simply represent transnational risk regulation and problem-solving, or is it reflective of a supranational move based on common values – a value-based community – and/or reflective of a development towards a rights-based post-national union, based on a full-fledged political citizenship?

In this book we explore the possibility of deliberation as an analytical category to explain integration beyond the nation state. Deliberation designates the rule of reasons, namely, that actors coordinate their actions by giving and responding to reasons (Habermas 1981; Forst 2001). Deliberative theory based on communicative rationality constitutes the reflexive approach. The actors reflexively monitor the circumstances of their activities and base their interventions on intersubjectively accessible reasons. The usefulness of this approach to transnational and supranational systems of governance stems from the fact that such systems to a large degree lack forceful compliance mechanisms. The EU is a non-hierarchical system based on voluntary cooperation. The reflexive approach is seen as an alternative to the rational choice perspective underpinning ‘liberal intergovernmentalism’, which sees integration as driven by the interest maximation of the contracting parties (Moravcsik 1998). It is also an alternative to neo-functionalism’s perspective on ‘unreflective’ spillover processes from ‘low’ to ‘high politics’ (Haas 1961).

In this chapter I outline the reflexive approach to the European integration process with regard to the basic analytical categories, deliberation and problem-solving. First, I address some developments of the EU integration process and the dynamics that have pushed it in a supranational direction. Second, I point to deliberation as the medium of problem-solving, which, however, requires trust and law as complementary resources for collective action. In a third move I see polity-building as a problem-solving procedure based on experimental inquiry, but one that needs to be supplemented with mechanisms for collective goal attainment and impartial conflict resolution. After this I outline four analytical models of the EU which represent ideal-typical polity options. They are premised on different merits of deliberation – epistemic, transformative and moral.

A heterarchical order?

The EU is not a federation nor is it a confederation. While the latter depicts a union of states – with indirect and delegated powers – a federal system is a union of citizens based on an institutional arrangement like that of a sovereign state albeit more complex. The European polity has clear supranational elements such as the European Court of Justice (ECJ), which guarantees supremacy of EU law within its field of competence, and a directly elected Parliament which has obtained the power of co-decision with the intergovernmental Council in a wide range of policy fields. The term polity in the present use does not imply a full-fledged state, but a system in which a central polity coexists with local units. In Europe the member states and the EU have both shared and independent powers with neither having supreme authority over the other. The EU has got supranational political institutions, a Central Bank, a single currency and a material constitution. It is now also aspiring to be a polity with competencies on foreign and security policy. The EU has supranational dimensions but does not fit the customary concept of state, as it does not possess the required means, such as monopoly of violence and taxation, or a well-developed collective identity necessary for majority vote, to enforce its will. It is not sovereign within a fixed, contiguous and clearly delimited territory.² There are no European jails, army or police force.

The EU is a polity without a nation and a state. The supranationality marking it is non-hierarchical and a consequence of its peculiar ‘separation of powers’, which is due to the role of the Commission and the Council, which combine representative and executive functions. This kind of supranationality ensures the member states a strong and consistent say in collective decision-making processes, in particular through the Council of the European Union. The institutional structure of the EU embodies a complex mixture of supranational, transnational and intergovernmental elements. There is disagreement among scholars with regard to how this order should be portrayed.

Some analysts see the EU as a system of multilevel and multi-centric governance: Decision-making and implementation are diffused to networks, partnerships and private actors in transnational structures of governance. Common problems requiring common solutions are coordinated by joint problem-solving in agencies and committees.³ The exercise of political authority is no longer exclusively statal – the relationship between state and non-state actors is non-hierarchical. Such a regime is based on shared authority, and the major task is not ‘redistribution’, but ‘regulation’ of social and political risks. Hence the prevalence of governance and not political rule through responsible institutions such as parliament and bureaucracy – generally thought of as government based on one single (mono-cephalous) line of accountability anchored in the rights of the citizens. Governance represents innovative practices of networks and horizontal forms of interaction. It is based on a private-law framework where the production of norms is seen as the result of a spontaneous coordination process. It is a method for dealing with political controversies in which actors, political and non-political, arrive at mutually acceptable decisions by deliberating and negotiating with each other on the basis of ‘soft law’. In this view the EU comes close to a heterarchy: political authority is not centralized as in the hierarchical order of the state model nor is it decentralized as in an anarchical order. Rather the units of the system pool their sovereignties. There is:

a shift from a hierarchical substantive orientation, to be found in given rules and aims, to a horizontal heterarchical and procedural approach, operating with the localised and linked potential generated from private and public action and the linkages inherent to them.

(Ladeur 1999:156)

Heterarchy is, however, deficient in empirical terms because a supranational structure endowed with a dispute-resolution mechanism is in place, namely, a court that bases its rulings on recognition of the primacy of Union law and on the principle of rule of (hard) law. The integration process has moved the EU beyond an international organization as well as beyond a heterarchy. Due to this fact, democracy needs to be brought to bear on the EU. Its actions have consequences for the citizens’ interests and values, for their freedom and welfare. The acts of the Union are thus not merely regulative as they allocate resources throughout Europe and affect EU citizens in most walks of life, even if only by means of impeding other levels’ ability to act. Heterarchy is deficient with regard to democracy in that there is little chance of equal access and public accountability. Egalitarian structures of law-making are lacking. An order exercising power in the form of conflict resolution and resource allocation is in need of popular control according to the dictum that all legislative power stems from the people. ‘Whatever a people cannot impose upon itself cannot be imposed upon it by the legislator either’ (Kant 1797:85). I return to the democratic problem of the Union in Chapter 11. The question now is how to explain the making of a supranational order.

The dynamics of integration

European cooperation started out as a pragmatic form of collaboration on coal and steel, underpinned by the peace motive. World Wars I and II profoundly affected the states and citizens all over Europe; and all depended on each other for a peaceful restoration of Europe after the war. Cooperation was initially problem-solving for the members due to their interdependence. Solving common problems led to more cooperation, the building of trust relationships and to the discovery of new areas of common concern. Increasingly, supranational polity formation took place with conflict-resolution and goal-attainment institutions of its own, which, however, spurred new questions about the legitimacy basis of such a polity.

In the beginning, [the European Union] was more of an economic and technical collaboration. […] At long last, Europe is on its way to becoming one big family, without bloodshed, a real transformation clearly calling for a different approach from fifty years ago, when six countries first took the lead.

(European Council 2001b)

The reflexive approach sees cooperation as a response to societal problems, and institution formation as a response to the indirect consequences of such cooperation, which increasingly catches on and has polity consequences. Polity-building is the result of deepened integration driven by intelligent problem-solving, but problem-solving leads to juridification, to more legal regulation, which again triggers claims to democracy and reflexive juridification, as James Bohman puts it in the present volume. It is ‘legalization without democratic politics’ (Brunkhorst 2004:100). Hence the integration process is not a linear mono-causal process driven by unintended feedback loops as analytical functionalism suggests, neither by the federalist ideas of constitutionalists like Altiero Spinelli (1966) and Ernesto Rossi, nor by ‘the hidden hand’ of Jean Monnet who foresaw a federation as the necessary outcome of closer cooperation (Monnet 1978:392f). Rather, the integration process is to a large degree driven by contestation and opposition as it came to be seen as a technocratic, elite-driven project conducted in isolation from the people. The obvious answer to such allegations comprised democratic reforms, which, however implied more integration and supranationalism.

Integration is a process where actors shift their loyalties and activities towards a new centre with the authoritative right to regulate interests and allocate resources (Schmitter 1969:166). Integration thus entails solving the problem of collective action – the free-rider problem. In causal terms, we may conceive of integration beyond the nation state as a process where states and non-state actors cooperate in joint problem-solving sites across national borders in Europe, thereby creating a transnational society. As the activities increase, common standards, rules and dispute-resolution mechanisms – regulation and coordinating mechanisms – become necessary, which, in turn, trigger reflexive and self-reflexive processes conducive to the establishment of authoritative institutions that can control and command obedience in the name of all. Hence the European institutions develop into something more than agents of the member states (Stone Sweet 2004:236). The EU becomes a polity in its own right.

The supranational character of the Union’s legal structure started with the constitutionalization of the treaty system, which transformed the EC from an international regime into a quasi-federal legal system based on the precepts of higher-law constitutionalism. All legal persons and not just states, have judicially enforceable rights. Furthermore, Article 177 of the Treaty of Rome (EEC) states that, whenever Community law is needed for the resolution of a dispute before a national court, the presiding judge may (sometimes must) request the ECJ for an adequate and authoritative interpretation. Due to case law, the Doctrine of Supremacy (1964) states that, in cases of disputes between a national norm and an EC legal norm, the national norm must give way; and the Doctrine of Direct Effect (1962, 1974) says that, under certain conditions, EC norms – Treaty law and secondary legislation – grant the citizens rights that must be protected in national courts. In the Treaty establishing a Constitution for Europe, recognition of the primacy of Union law is now stated (European Council 2004c: Articles I-6 and I-12). Further, the progressive strengthening of the doctrines of supremacy and direct effect is coupled with the growth of the number of EU provisions and Court rulings, where the Court acts as a trustee of the treaty and not as an agent of the member states. The net upshot is that:

The constitutionalization of the Treaty of Rome constitutes an ‘unintended consequence’ of monumental proportions. The member states, after all, had designed an enforcement system that one can characterize as ‘international law plus’, being (a) the compulsory nature of the Court’s jurisdiction, and (b) the obligatory participation of the Commission in various proceedings.

(Stone Sweet 2003:27)⁴

The present state of affairs is due to a protracted process of integration since its inception with the Paris Treaty. The basi...

Table of contents

• Routledge studies on democratizing Europe
• Contents
• Illustrations
• Notes on Contributors
• Acknowledgements
• Part I Reflexive polity-building and post-national integration
• Part II The Euro-polity in the making
• Bibliography
• Index