Law, Democracy and Solidarity in a Post-national Union

The unsettled political order of Europe

Erik Oddvar Eriksen, Christian Joerges, Florian Rödl

• Publisher: Taylor & Francis
• Year: 2008
• Print ISBN: 9780415462273
• eBook ISBN: 9781134042807
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

To many, the rejections of the Constitutional Treaty by Dutch and French voters in 2005 came as a shock. However, given the many tensions and the many unresolved issues it was quite unsurprising. The challenges facing the Constitutional debate go to the core of the European integration process as they have to do with the terms on which to establish a post-national political order.

This book deals with four themes which make up the main sources of the 'constitutional crisis':

• The problem of the rule of law in a context of governance beyond the nation state
• The problem of the social deficit of the Union
• The problem of identity and collective memories
• The problem of institutionalizing post-national democracy.

These themes constitute the unfinished agenda of the European integration process. Law, Democracy and Solidarity in a Post-national Union is based on the efforts of a collection of top scholars in the fields of Law, Political Science, Sociology and Economics, and will appeal to students and scholars of political science, the European Union and European studies.

Part I
Rule of law in a context of governance

2
Three forms of governance and three forms of power

Poul F. Kjaer

Introduction

One of the central characteristics of the European integration process is the emergence of a whole range of different governance structures. Among the most significant ones are regulatory agencies, comitology and the Open Method of Co-ordination (OMC). For each of these three forms of governance corresponding theories have been developed. Giandomenico Majone’s theory of the regulatory state focuses on regulatory agencies, Christian Joerges and Jürgen Neyers’ theory of deliberative supranationalism is exploring the comitology phenomenon and Charles Sabel has, in cooperation with a number of other scholars, developed a theory of directly-deliberative polyarchy (DDP) which is aligned with the OMC.

Whereas the question of power has played a substantial role in the ongoing theoretical contentions on the overall logic guiding the European integration process, the vast majority of scholarly work on governance has not granted much attention to the question of power. That is also the case for the three theories mentioned above. This chapter therefore seeks to clarify which concept of power the three theories are based on.

The point of departure is a reconstruction of the three theories combined with an uncovering of the schools of thought which they are built upon. It is argued that the theory of the regulatory state remains faithful to a Weberian worldview and hence to a concept of strategic rationality and an understanding of power as a teleological instrument of steering. In contrast, the theory of deliberative supranationalism revitalizes Jürgen Habermas’ critique of Max Weber’s one-dimensional concept of rationality. Habermas argues that the social dimension of rationality is just as significant as the strategic dimension, thereby allowing him to develop a consensual concept of power. It is this Habermasian concept of power which provides the foundations for Joerges and Neyers’ theory, which argues that comitology is a consensual mode of decision-making. In contrast to these two positions, the theory of DDP relies on a concept of power which has close affinities to the poststructuralist concept of power developed by Michel Foucault. The proponents of DDP emphasize the OMC’s function as an instrument of discourse transformation aimed at defining the setting within which social processes unfold. Within the OMC power is therefore only being exercised indirectly. Hence, it can be argued that DDP relies on an understanding of power as orientated towards regulating the conduct of conduct, which is similar to the understanding of power presented by Foucault. This line of thought is moreover closely aligned with a dramaturgical form of rationality, as the central point of focus is form rather than content.

The reliance on different assumptions of rationality and power means that the proponents of the three theories are inclined to talk at cross purposes. Hence, the chapter proceeds by presenting the argument that a more fruitful starting point would be an identification of the different functions that the different governance structures fulfil in the larger context of the European integration process. It is argued that the three forms of governance fulfil three different functions within the context of the integration process, which respectively can be labelled convergence, harmonization and steering. These three functions are, moreover, particularly prevalent in different phases of policy-development, thereby allowing for the introduction of a distinction between pre-integrative, integrative and post-integrative phases of regulation. The three forms of governance should therefore not be understood as mutually exclusive.

A clarification of the function of each is, moreover, seen as an appropriate starting point for the development of a constitutional concept capable of binding the three modes of governance to the broader framework of the European Union (EU) system. Hence, the chapter concludes with the suggestion that a viable constitutional compromise could be based on an anchoring of the three forms of governance in the foundational treaties of the Union by; limiting the OMC to policy areas where the Community possesses only complementary competences; comitology to policy areas characterized by shared competences; and full-scale regulatory agencies to policy areas where the Community has exclusive competences.

Regulation as a problem of time and space

In his theory of the regulatory state, Giandomenico Majone advocates delegation of discretionary power to non-majoritarian institutions in the form of regulatory agencies. Majone argues that delegation offers solutions to the problem of time: he presents it as an institutional response to the contradiction between politics’ short-term operational perspective and the need in practice for long-term solutions to problems in many policy areas, ranging from central banking and competition policy to risk regulation.¹ But Majone emphasizes that the problem of time is not only a problem of political short-termism. Even if regulation is deemed appropriate, problem-solving via political intervention in discretionary policy areas often leads to the application of policies that are already outdated by the time they take effect. Thus, Majone suggests, interventionist measures are typically suboptimal as policy instruments; they may even tend to do more harm than good. Besides in-built tendencies to opportunism and short-termism, the political system is therefore also characterized by a structural deficit; namely that it does not possess the instruments needed to undertake rapid and precise regulation (e.g. to adjust interest rates in the area of monetary policy).²

The restricted effectiveness of political intervention due to time lags might be thought to indicate limits to the cognitive resources of politicians and political institutions as the root problem. However, Majone dismisses this and argues that the need for policy credibility is the most important explanation of why power is delegated to non-majoritarian institutions. Politicians delegate competences in order to protect specific policy areas from their own short-sightedness. Thus, while Majone points out two time-related reasons for delegation, he ultimately identifies the ‘real’ reason as political short-sightedness, thereby subscribing to a largely ‘anthropological’ understanding of the homo politicus.³

According to Majone, non-majoritarian institutions avoid political short-sightedness because such institutions are characterized by three elements: i) a strong sense of purpose based upon functionality, since, at least ideally, only one institution is assigned the task of regulating a well-defined policy area; ii) strong professional norms, such as expertise, professional discretion, policy consistency, fairness and independence of judgement;⁴ iii) a long-range institutional perspective, tending to imply a strategy for long-term survival, which incentivizes the adoption of policies that may be maintained consistently over time. For Majone, the mixture of these three characteristics provides the optimal basis for policy interventions. Their absence at the political level provides the argument for delegation of discretionary powers to non-majoritarian institutions.

Applying the theory of the regulatory state to the EU, Majone further reacts to a problem of space, in the sense that regulatory regimes need to take account of structural changes to the economy through internationalization. Functionally, this creates a need for the transfer of competences from the national to the European setting. But Majone argues that the delegation of powers to the EU in many areas exceeds what is needed in order to establish an internal market (e.g. environment, consumer protection, health and safety at work). Majone views this as a result of regulatory competition which provides the sovereigns, that is the Member States, with an incentive to agree on common rules while partly delegating rule-making to a ‘neutral broker’ in order to avoid a situation where other Member States impose less costly standards, thereby gaining comparative advantage. Common rules are made to preclude the famous race to the bottom. Hence, Majone understands the attempt of Member States to ensure relative economic gains vis-à-vis other Member States as the primary driving force behind the European integration process.

The Weberian foundations of the theory of the regulatory state

The form and content of Majone’s theory of the regulatory state clearly shows his subscription to the mainstream self-understanding of the political science discipline originally developed in the US context, as well as to a particular version of Weberian thinking which, more or less consciously, was adopted in its formative period.⁵ This is particularly clear in relation to the concept of power which he relies on. Weber stated that ‘power means every chance within a social relationship to assert one’s will even against opposition’.⁶ This definition was adopted by Robert Dahl who defined power as ‘A’s power over B insofar as A can get B to do something B would otherwise not do’.⁷ Both definitions are methodologically focused on observable behaviour – actual decisions and clear causality. Both definitions are furthermore based on a pluralist view, in the sense that each assumes a multiplicity of individual actors competing with each other to further their interests on the basis of strategic rationality. Power is not an end in itself, but a teleological tool which can be deployed in order to achieve certain objectives. Hence, the Weberian concept of power is basically being extrapolated from a uni-dimensional concept of strategic rationality.

It is this Weberian concept of power that Majone builds his theory upon. He departs from the assumption that power resides in a clearly identifiable sovereign (in the case of the EU, in a number of well-defined Member State sovereigns), thereby making the act of delegating power a straightforward matter. He moreover assumes that different actors engage in a zero sum game aimed at achieving th...

Table of contents

• Routledge studies on democratizing Europe
• Contents
• Tables
• Contributors
• Acknowledgements
• Part I Rule of law in a context of governance
• Part II The social deficit of the Union
• Part III Identity and collective memories
• Part IV Post-national democracy in Europe
• Bibliography of selected CIDEL-publications
• Index