Notes Towards a General Theory

Notes towards a general theory of legitimacy in the European Union

Christopher Lord & Paul Magnette

1. Introduction

The legitimacy of the European Union now features amongst priorities for research. It is rare, however, for authors to address the overall problem, rather than particular parts of it. Some recent analysis attempts to surpass this limit by demonstrating that the Union rests on a plurality of legitimating principles (Scharpf, 2000). But this only begs the question of how such principles are related one to another. Are they complementary or competitive? Do some dominate over others? Or is there a kind of ‘reciprocal contamination’ of alternative ideas on how the Union might be legitimated? These are the questions posed by this article with the objective of asking how much scope there is for a general theory of ‘composite legitimacy’ in the EU.

The challenge we seek to pick up might be defined as follows: since members of pluralist societies argue about the ‘right’ and the ‘good’, as well as ‘interests’ and ‘preferences’, their institutions often have to accommodate contradictory, yet equally reasonable, ideas of what is needed for them to be legitimate (Rawls, 1993, p.36). The EU can be expected to be both an extreme example of this predicament, and a laboratory for original solutions to it (Höreth 1999). The article begins by asking just how heterogeneous are legitimating principles within the EU (2). It then discusses three responses to diversity (3 & 4). In ascending order of difficulty, they are exploitation of complementarities between legitimating principles, conflict minimisation strategies, and means of choosing one legitimating principle over another.

We challenge the view that heterogeneity, or even conflicts, between legitimating principles need be dysfunctional, and further argue that they can be mediated in ways that respond to one of the oldest dilemmas of political theory,(Elster, 1990), identified as follows by Condorcet and Jefferson : how can a society be given a constitution without binding future generations by decisions to which they have not given their consent (5)? What we do, however, insist is that solutions must work both normatively and institutionally. They have to be justifiable to those whose values are to be combined, compromised, or even over-ruled, and they have to be capable of being operationalised in viable institutions.

2. What are the vectors of legitimation in the EU ?

Individual authors tend to analyse principles of legitimation in the Union according to their own analytical and normative perspectives, even though these are not always made explicit. In the interests of simplicity, five main approaches can be distinguished from the literature. We call these ‘vectors’ of legitimation because they are more commonly articulated as suppositions about general directions in which the legitimation of the Union ought to be headed than as fully developed, let alone mutually exclusive, systems of thought.

International Indirect legitimacy. According to this perspective, supported by the German Constitutional Court in its famous decision on the Maastricht treaty, the European Union remains primarily an international organisation like any other. Its legitimacy can at best be indirect or derivative (H.Wallace, 1993). It depends on the legitimacy of its component states, its respect for their sovereignty, and its ability to serve their purposes. This conclusion is found in historical studies that claim all authorisations of Union power by Treaty have been dominated by state actors and state preferences (Milward, 1992; Moravcsik, 1998). It has also been formalised in principal-agent models (Pollack, 1997a), according to which the autonomy of Union institutions is not evidence of their independent legitimacy, but of where it suits states to confer limited discretion on a supranational agent. The contract, according to this perspective, is contingent, calculated and controlled.

Parliamentary legitimacy: Another point of view is that the Union requires legitimation by elected parliamentary bodies, and not just by its member states (Pescatore, 1974). According to this classic federal perspective, ‘dual’ legitimation may be the only way of achieving popular sovereignty in a political system that has both a people (a citizenry more or less affected in the same way by the one system of rule for which all are commonly responsible), and a series of peoples (a citizenry divided along lines of cultural identity ). As J.-M. Ferry puts it, the Union has a ‘double normative reference point: the rights of individuals and the rights of peoples’ (Ferry, 2000, p.10). Indeed, this perspective draws succour from the observation that a polity that is territorially segmented, yet made up of common initiatives for the management of problems that cut across those sub-units, will need representative institutions that can aggregate and deliberate preferences both nationally and transnationally.

On the other hand, the need for dual legitimation may follow from the classic argument for mixed government. If it is unlikely that rational citizens will consent for long to systems of rule that expose them to arbitrary domination (Locke [1690], 1977, p.163), a legitimate Union cannot afford to concentrate power, whether in a cartel of governments or in a parliamentary majority, but must, instead, institutionalise checks and balances between those with different legitimacy claims. Dual legitimation thus has obvious appeal to federalists, with their penchants for political systems that balance the representative claims of the whole and the parts, and for those who seek to constitutionalise the Union. It is interesting, though, that from Walter Hallstein to Joshka Fischer many of the former have sought a parliamentarisation of relations between states themselves (by transforming the Council of Ministers into an upper chamber of a European Parliament), and not just for a sharing of power between a Council of States and an elected Parliament (Hallstein, 1972). Their goal, in other words, is that inter- state behaviour should be transformed from the secretive and competitive to the open and the deliberative as part and parcel of arrangements that the Union makes for the continued representation of states.

Technocratic Legitimacy. According to this perspective, the EU would be best legitimated by giving its powers to independent actors who have no incentive to do other than deliver its goals with maximum efficiency. This position implies the following: first, a normative belief that the superior ability of a system to meet citizen needs is grounds for political obligation to it; second, epistemological confidence in a rationality or science of government (positivism); and, third the identification of specific public needs that can only be met by independent European institutions. The latter might plausibly include use of the Union to constrain states from imposing negative externalities on one another (Gatsios and Seabright, 1989), and to provide international public goods; or, even to supply domestic public goods whose provision is threatened by perverse political incentives in the domestic arena. So, for example, if it is assumed that even central bankers have residual political preferences (Lohmann, 1998), one way in which European central bank independence may add value even to national central bank independence is by transferring policy to a level at which there is no one electoral cycle.

Legal and Procedural Legitimacy. This encompasses one point of view that is an extension of international legitimacy, namely that what makes the EU legitimate is that it is properly established under Treaties. From another perspective, however, legal Procedurallegitimacy is a means of filling a gap in technocratic legitimacy. In response to criticisms that independent technocratic agencies are means of escaping democratic controls, some authors have defended a procedural conception , according to which the legitimacy of an action rests in its observance of certain formal procedures: transparency, motivation, balance of interests, evaluation, participation of stakeholders and so on (Majone, 1996; De Schutter, 2000). From another third point of view, what gives the Union legal legitimacy is not just the initial contract signed by its member states, or its attentiveness to due process, but its capacity to generate an original normative order that confers new rights and entitlements on citizens, enforceable even against states themselves.

Corporate legitimacy. Another way of securing the legitimacy of a policy is by negotiating it directly with those whose compliance it needs. Such an approach confers legitimation where it is generally accepted that those exposed to the concentrated effects of public policy should have special rights of consultation in the decision-making process. Although corporatist ideas that lay, for example, behind the creation of the Economic and Social Committee (ECOSOC) have little purchase on contemporary economy and society, the Commission has sought new ways of identifying those affected by its policies and including them in their design. This can be seen in the White Paper on Governance and the thinking of the Forward Studies Unit (European Commission,1997 & 2001).

By way of summary, it is useful to add a distinction that cuts across the foregoing vectors of legitimacy. Each implies its own distinct account of what is needed to make the EU legitimate on the input and output sides of governance (Scharpf 1998). Authorisation by member states (input) and delivery of state preferences (output) in the case of international legitimacy. Elections (input) and delivery of voter preferences (ouput) in the case of parliamentary legitimacy. Expertise (input) and delivery of efficiency (ouptut) in the case of technocratic legitimacy. Treaties Ruled processes (input) and the delivery of rights (outputs) in the case of legal procedural legitimacy. Consultation (input) and compliance of organised actors (output) in the case of corporate legitimacy. (Maybe this could be a table?)

Vectors of legitimation Input Output

Indirect authorisation State preference

Parliamentary elections Voters preference

Technocratic expertise efficiency

Procedural Due process Rights and remedies

Corporate consultation compliance 3. Complementarities between vectors of legitimation.

These vectors of legitimation do not exist in their pure form in the present EU. They must be understood as “ideal types” defined to analyse the normative basis of the EU. In practice, the Union mixes and matches the foregoing vectors of legitimacy. What, therefore, needs to be understood is the logic of their interaction. The following features are immediately obvious.

First, each vector has elements of both compatibility and exclusivity in its relations with the others. Indeed, the possibility of complementarity with other approaches is inherent to legal procedural and technocratic approaches, since the first requires a legitimate source of law, and the second an authoritative mandate giver for supranational technocracies. Likewise, corporate solutions may only be legitimate where coupled with means of representing more diffuse interests (Pollack, 1997b). Yet, all three are also partially exclusive of other approaches. There can, for example, be no technocratic legitimacy where international or parliamentary legitimacy inhibits the use of expert knowledge to achieve pareto-improving solutions; nor corporate legitimacy where parliamentary majorities or state preferences are inconsistent with the terms on which sectoral ‘stakeholders’ will co-operate in the delivery of policy; nor legal legitimacy of a ‘new constitutionalist’ kind where member states or parliamentary majorities can reverse rights established by the ECJ.

Second, supporters of the different approaches to the legitimation of the Union are unlikely to divide along clear cleavage lines. Consider two accounts of international legitimacy. From a Kantian perspective, the Union gains international legitimacy by allowing its component nations to constrain their own statehood. Its trick is to constrain the state without creating a new state (Magnette 2000). In contrast, principal-agent approaches imply that acts of delegation from national authorities legitimate the Union in themselves, and regardless of their effects, which will sometimes be to empower (or rescue) the state through the Union, other times to constrain it through a process of rational self-limitation.

Third, the boundaries of conflict and complementarity between the different vectors of legitimacy are constantly shifting. A prime reason is whilst it is hard to believe that the Union could be legitimate without replicating respecting key standards required of the state – such as public control and respect for human rights delivery (Lord and Beetham, 2001) - its method of meeting those standards must be its own if it is to meet the experimental task of establishing a non-state and postnational political systemsince it has not become a state and a nation. The extent to which this challenge turns the Union into a somewhat unpredictable laboratory for legitimacy experiments in polity formation beyond the state can be seen in ways in which it is both leader and laggard, lacking in legitimating instruments familiar to national arenas, yet ahead in others that are as novel to states as they are to the Union itself. Consider two examples. Although it has no text that has been authorised as a constitution, the Union has features of ‘new’classic contemporary constitutionalism: individual rights developed by its Court in response to the use citizens make of its law are entrenched, since they would be difficult to remove by Treaty change (Stone Sweet, 2000, p.193). Likewise, the Union’s backwardness in representative government may be matched by precocity in new forms of governance. Whilst this means foregoing such sources of legitimacy as mandated political programmes or popularly dismissable political leaderships it, arguably, imparts other legitimating qualities, including, an emphasis on pareto-improving, rather than redistributive, policies and on scientifically and nomatively demanding forms of deliberation (Héritier, 1999; Hix, 1998; Joerges & Neyer, 1997; Kohler-Koch, 1996). But how can these vectors of legitimacy be combined in practice? Five kinds of combination are empirically observable in the contemporary Union.

Partitioning of legitimating approaches. Different vectors of legitimacy sometimes appear to apply to distinct policy domains. International Indirect legitimacy is strongest in the Common Foreign and Security Policy (CFSP) and in co-operation in Justice and Home Affairs (JHA). Technocratic legitimacy is clearest in those aspects of Monetary Union that are handled by the ECB. Corporate legitimacy is important in the regulation of the Single Market. In this perspective, the Union could be conceptualised as a series of separate fields, each corresponding to a particular legitimating approach. Some analysts indeed focus on one part of the Union to suuport their claim for one vctor of legitimacy (Majone 1996). In practice, however, even single issue areas turn out to be dependent on a variety of legitimating approaches. Moreover, the mix within any single policy domain may change over time. Whereas, the involvement of supranational actors was seen by some as delegitimating in the early days of foreign policy co-operation, the ‘blurring’ of the supranational- intergovernmental divide for which the CFSP is now notorious takes place along the boundaries of two pairs of legitimating approaches: the divide between technocratic and intergovernmental legitimacy is blurred by the Commission’s right of initiative on CFSP questions; and that between technocratic and parliamentary legitimacy is blurred by the EP’s right to scrutinise CFSP and even exercise a measure of control where pillar one resources are needed to achieve pillar two objectives.

Relay of legitimating approaches. Rather than apply different legitimating approaches to different issue areas, this solution applies them to different stages of the decision-making process. Under the Community method, a body with a claim to technocratic legitimacy (the Commission) determines whether a decision is to be taken at all. It consults a body with corporate legitimacy (ECOSOC) and another with a claim to represent subnational authorities (Committee of the Regions). A body with international legitimacy (the Council) then amends and approves the decision, often in conjunction with a body with claims to parliamentary legitimacy (the European Parliament). Finally, the European Court of Justice is available to adjudicate on whether the decision is legally legitimate under the Treaties and the Union’s rights jurisprudence.

To the extent that each stage corresponds to what each vector of legitimacy is good at, the relay stands a chance of being assembled to the mutual satisfaction of those with contrasting ideas of what is needed for the rightful exercise of Union power. Thus, under an ‘ideal’ statement of the Community method is that a technocratic body (the Commission) restricts the agenda to proposals that can be made to work, an international body (the Council of Ministers) bargains the needs of member states, a parliament scrutinises and debates, and a court provides judicial review. However, the relay may also create as many problems as it solves, since it raises the obvious question of the relative weight to be given to each vector of legitimacy. A simple solution might be to allow each to function as a veto point, so no decision can be taken without satisfying all approaches simultaneously. Yet, the legitimacy of this is itself likely to be contested. To defenders of parliamentary legitimacy, multiple veto points allow minorities to rule over majorities. To those of technocratic legitimacy, they risk gridlock and substitute pork-barrel politics for the hope that independent experts can be used to search for optimal solutions. To those of international legitimacy, they have no validity unless they are traceable to a principal-agent relationship sanctioned by states themselves. It follows that the price of embedding multiple principles of legitimation in Union institutions is that none can prevail in its ideal form. A relay can only be formed between qualified and conditional versions of each principle, with the result that the mix is more likely to be open to continuous renegotiation than it is ever to be conclusively settled to the satisfaction of all.

Hierarchy of legitimating approaches. The implication of some analyses is that the EU arranges different vectors of legitimacy into a hierarchy. Thus John Peterson’s distinction between super-systemic (an IGC), systemic (the Community method) and sub-systemic decisions (policy networks, preparatory committees and so on) (Peterson, 1995) might cash out as the following relationship between vectors of legitimacy. International legitimacy plays the most important role in authorising the main outlines of the EU’s institutional system through the Treaty formation process. Much in keeping with the last section, technocratic, parliamentary and legal legitimacy are then added at different stages of everyday decision- making, but always within a framework of what has been authorised by the member states and on the understanding that the contributions of those other sources of legitimacy can be challenged and changed in subsequent rounds of Treaty negotiation. Finally, corporate legitimacy is added to the mix by consultative and implementing committees that operate even beneath the surface of decision-making processes sanctioned by the Treaties, though, once again, on the understanding that actors at ‘higher’ levels of legitimacy are free to accept or reject the contributions of the consulted.

Given our starting point that the EU needs to find some way of dealing with a plurality of fundamentally contested notions of what is needed to make it legitimate, a hierarchy of approaches seems still less likely than a structured sequence of legitimation hurdles to secure the acceptance of all those whose active co-operation the Union needs. The latter may contain more risk of gridlock, but at least it is capable of treating all legitimation tests equally, without presupposing one to be more important than all the others, or that there are ‘lesser’ approaches that can only be introduced to the EU’s political system on the sufferance of the custodians of some core legitimating principle.

Thus far from proving the overwhelming importance of international approaches, IGCs may only work where they acknowledge the need to add other ingredients to the legitimation of Union power. This can happen in three ways. First, the national leaders who negotiate the Treaties (the ‘masters of the Treaties) are far from being undivided exponents of international legitimation. Instead, they often appear to internalise the range of competing legitimating approaches into the preferences they negotiate between themselves. Thus, the TEU negotiations on political union followed a cleavage between German preferences for parliamentary legitimation and French for international legitimation, whilst those on Monetary Union pitched German and Dutch preferences for technocratic legitimation of the Central Bank against French and Italian preferences for its political control. Second, the Herrenvertrage, negotiators may anticipate the legitimation requirements of other actors whose co-operation is needed if they are to achieve their own purposes. Third, a significant proportion of Treaty formation codifies practices that have already been developed in conjunction with the custodians of varied approaches to legitimation. For example, the TEU (1991) adopted the draft statute for the ECB almost verbatim from a technocratic committee of Central Bankers (Dyson and Featherstone, 1999, p.3), and Amsterdam ratified extensions to the parliamentary investiture of new Commissions that had already been unilaterally developed by the EP itself (Hix and Lord, 1996).

Substitutibility of legitimating approaches. Adrienne Héritier has usefully introduced the notion that potential sources of EU legitimation may be open to substitution one for another, at least over limited time periods. This will work as long as there are identifiable second-best solutions for each legitimation approach that are not too distant from the original. Thus in Héritier’s own formulation forms of due process (transparency) and direct consultation with users are second best for parliamentary legitimation

Mutual contamination of legitimating approaches. Another way in which the EU moves beyond simple co-existence between the vectors of legitimation is through a form of ‘mutual contamination’. The history of the European Parliament has been characterised as a search for reconciliation between international and parliamentary legitimating principles through new forms of deliberation (Costa, 2001). In the case of Monetary Union, the claims by some to have identified a contradiction between technocratic and parliamentary principles of legitimation (Buiter, Busch, Gormley & de Haan, Elgie), may yet be answered by the EP’s attempts to establish a ‘monetary dialogue’ that invites the ECB to justify its decisions technocratically within a framework of parliamentary scrutiny and cross-examination (Magnette, 2000b).

Mutual contamination is less structured than other means of combining diverse approaches to the legitimation of Union power: it does not depend on applying different approaches to different policy sectors, or on their arrangement into a hierarchy or a sequence, or on their being logically close substitutes for one another. Rather, it presupposes that the constructions their supporters put on each approach will be altered through mutual exposure. This is a theme to which we will return.

4. Minimising conflicts between vectors of legitimacy.

In addition, to combining different vectors of legitimacy, the Union has developed a variety of mechanisms for minimising conflict between them. The following are examples.

Proportionality doctrines – which hold that even if there is no principled objection to sacrificing one value for another, the method of making a trade off can always be challenged on the grounds it is not the ‘absolute minimum infringement necessary to serve the other value’ (Stone Sweet, 2000, p.98) – are covered by Treaty declarations, and are often applied by the ECJ.

Light touch. Just as legitimation is most needed where power is concentrated, so trade-offs between approaches to legitimacy can be diffused across time or space. Majority voting and co-determination with the European Parliament may have been made less offensive to advocates of international legitimation by the incremental nature of their introduction over four rounds of Treaty change from 1987 onwards. Likewise, the rights jurisprudence that adds a further dimension to the EU’s legitimacy as a system of law may have been more contested by champions of other approaches to EU legitimacy (international, parliamentary or technocratic), each one of which it circumscribes, if it had not been an evolutionary growth, built up through specific appeals to the ECJ, each corresponding to some concrete need for judicial abjudicationadjudication, and most to spontaneous decisions by citizens or organisations of civil society to clear up an ambiguity or grievance.

Creative ambiguity. This allows different actors to believe that a policy or institution is legitimate for different reasons. If, this presupposes that the Union’s stakeholders do not communicate sufficiently with one another to notice any inconsistencies in the justifications they are given for policy, it may, however, be hard to reconcile with other preconditions for legitimation, such as deliberation in a shared public space. If, on the other hand, any creative ambiguity is understood even by those who hold divergent legitimation beliefs, it may still require an evasive politics in which choices always stop short of definitive gains for one approach to the legitimation of Union power over another, or, failing that, the Union’s agenda is kept to matters of such low salience that ‘political attention’ (March and Olsen, 1995) is never mobilised around the legitimation choices it makes.

Disguise. Sometimes Union policies can be made more acceptable to certain audiences if disguised as the outputs of other political systems Thus Union rules may appear more legitimate to Eurosceptic audiences to the extent that they are felt as applications of national law. The Union, however, is quite as likely to lose as it is to gain from attempts by different levels of government to lessen their own legitimacy problems by off-loading them on to others. Far from being assured of a free-ride on national legitimacy, its own legitmacy is often exposed to blame shifting from other levels of government, and to the dumping of problems on Union institutions without the powers or resources to deal with them.

5. Shaping the polity around legitimacy conflicts

There will, however, be occasions when conflict between the vectors of Union legitimacy cannot be settled, disguised or avoided. Outstanding tensions are visible in almost all domains of Union action. On foreign policy questions, the EP contests the monopoly of international legitimacy. In environmental and public health questions the technocratic legitimacy of expert knowledge clashes with the claims of parliamentarians or organised interests to represent public and societal values. In the design of monetary union, successive French Governments have questioned the legitimacy of failing to balance the technocratic qualities of an independent central bank with an ‘economic government’ based on the co-ordination of non- monetary policies by the Council. The problem of outstanding legitimation disputes takes us back to our opening question: how should the EU respond to conflicting notions of what is needed to make it legitimate, bearing in mind those positions may be ‘equally reasonable’ (see p.1), and that any solution will have to work institutionally as well as normatively? In other words, what is lacking in the EU is a normative principle which might help understand and defend these conflicts between vectors of legitimation. If the US remain imbued with a “madisonian philosophy” which legitimises the balanced nature of the American political system, the EU has still not found in the constitutional culture of its Member states, marked by the principle of parliamentary sovereignty, nor in its own principles, such a foundational normative argument.

One possibility is that rational actors trade legitimation claims they are unable to resolve: they accept some outcomes that are hard to justify in terms of their own notions of the rightful exercise of political power in exchange for others doing the same. Path dependence could then be expected to lock in trades made in previous periods. Keeping to deals will yield increasing returns. Departing from them will incur exit costs (Pierson, 2000). An elaborate legitimation settlement could thus accumulate and stabilise at Union level through a relatively small number of moves.

Is there any empirical evidence of actors behaving in this way in the European arena? The exchange of ‘political union for monetary union’ that lay behind the TEU can be interpreted as a legitimation trade. Germany got a technocratically legitimated monetary union and further parliamentarisation of pillar one. France kept the second and third pillars within the bounds of international legitimation. Rather than a mere trade of interests, this was, arguably, an exchange of deeply held, yet conflicting, ideas of what was needed for the rightful exercise of different kinds of political power in the European arena. There are, however, at least two problems with the notion that legitimating values can be traded. First, gains from trade and lock-ins can only explain the motives that actors may have for accepting some arrangements they would otherwise regard as non-legitimate. They do not in themselves confer legitimacy and must, therefore, always be vulnerable to changes in underlying interests or in technologies of public goods delivery. Second, deals are themselves likely to be contested by those who believe that legitimation trades only follow power and resources.

Familiar difficulties with using bargaining and exchange to reach a consensus between those with fundamentally different values have led political theorists to reflect on how that outcome might instead be achieved through deliberation (Elster 1998). or what Habermas ( ) calls an ‘ethic of communication’. The major hypothesis underlying this approach is that there are fundamental differences between the processes of negotiation and deliberation, and that they lead to very different results. Negotiation is a classic bargaining between actors who try to accommodate their respective preferences, without altering them. Deliberation is supposed to be a process through which the actors can reach a more fundamental agreement because they do not simply try to find a compromise between stable preferences but accept to adapt their preferences according to a rational argument by which they are convinced. To understand how this literature might be applied to the management of ‘contradictory but equally reasonable views’ of how the EU should be legitimated, it is useful to distinguish those matters on which its main authors are agreed from those on which they are disagreed.

Agreement is to be found on the deliberative norms themselves, which at the risk of simplification, can be reduced to two. The first is a willingness on the part of all participants in a political process to be persuaded, to give a fair hearing to other points of view, to understand why they are of such value to those who hold them, and to develop their own arguments in a form that exposes their evaluative and empirical assumptions to challenge. The second is a willingness of participants to be persuasive by reasoning ‘publicly’ rather than ‘self-referentially’, or, in other words, by explaining why they think their favoured positions are good for the unit as a whole, and not merely personal preferences. These may be cunning, but the strength of the deliberative process is precisely that, because the actors have accepted its rules, they are constrained to act as if they were motivated by pure rational interests. Whether they are sincere or not is not important here, because of the “civilising force of hypocrisy” (Elster) : even if the actors are trying to protect their preferences rather than promote the general interest, they are forced to argue as if they were putting a rational argument, and thereby play the deliberative game.

Disagreement, on the other hand, is to be found on what should be deliberated. A useful analytical distinction may be drawn here from the famous discussion between Rawls and Habermas (Rawls & Habermas 1997). For Rawls, members of a polity should use deliberation to develop an ‘overlapping consensus’, or, an area of agreement that avoids any claim to superiority between ‘contradictory but equally reasonable values’. Thus, in his view, liberal polities are distinguished by the capacity of their participants to develop means of adjudicating between values that are recognised as fair without being interpreted as a pronouncement that the ‘winning’ value is morally superior to the ‘losing one’. For Habermas, in contrast, members of a deliberative polity need to do precisely the opposite: to state their competing value positions as ideal and universal.

The foregoing debate raises three questions for our analysis. First, what motives might participants in the EU have for turning to deliberative norms to resolve their disagreements about the legitimation of Union power? Second, what should be the scope of EU deliberation (should it be Rawlsian or Habermasian)? And third how might deliberative ideals be institutionalised at Union level?

Why choosing deliberation ?

The answer to the question about motives is to be found in characteristics of legitimacy itself. On the one hand, beliefs about legitimacy are only true or false in proportion to how far they are successfully justified to others (Risse, 2000). To hold views on how to legitimate any political system is, therefore, to seek means of persuading others. On the other hand, there is obvious circularity in basing that persuasion on any power or resources that have (even in part) been accumulated within the political system that is to be justified (Rawls, 1993). It follows that persuasion needs, in Rawls’ famous term, to be a ‘pure speech act’ that rests solely on shared norms, and not considerations of power. More, therefore, than committing its holder to successful advocacy, any view on how to legitimate Union power presupposes an interest in the development at European level of shared norms by which the deliberation of EU legitimacy can proceed in the first place and be recognised as more or less successful. Empirically, the creation of a Convention which is supposed to respect the rules of deliberation (rational argument, publicity, willingness to reach a large consensus on basic principles) in order to define the basic principles and rules of the EU is a confirmation that this is not pure wishful thinking. The coincidence of the Nice Summit and the adoption of the Charter of fundamental rights contrasted the vices and virtues of negotiation and deliberation and convinced most leaders that a new process was needed to define the basic principles of the EU. Some may have accepted it without enthusiasm because it was politically difficult to refuse an open debate, but they have done as if they believed deliberation was the best method to allocate values.

Deliberating on what ?

On the question of scope, the case for preferring Rawlsian to Habermasian in the instance of the EU might be made as follows. Shared attachment to democracy, human rights , and the rule of law mean that the citizens and member states of the Union start out from a high-level of over-lap between their pre-existing political values. As long, however, as it is only partially operationalised in Union institutions there is much scope to deliberate how that over-lap can be applied to a post-state and post-national political system without turning to Habermasian modes of deliberation which would...

The foregoing is, of course, a largely pragmatic argument that avoids any judgement of which approach to deliberation is normatively preferable. But is it even valid on its own terms? A core difficulty is that legitimating approaches may only overlap in the European arena at a high level of abstraction. So, for example, shared attachment to democratic rule may be accompanied by intense disagreement on whether the Union ought to be a democracy in its own right, as opposed to an association of national democracies. Belief that the Union ought to be democratic may, in turn, be accompanied by intense disagreement on what model of democracy it should follow (Katz, 2001). What these examples illustrate is that the over-lap between legitimating values from which the Union starts out is insufficiently specific to support agreement on institutions. It is unlikely to provide solutions to the collective action problems that motivate actors to come together at Union level in the first place. Yet, choosing not to choose, may itself diminish values that many regard as a precondition for its legitimation. As is often remarked (not least by Rawls himself) a non-decision is a profoundly allocative action which privileges the status quo and its accompanying injustices. A refusal to venture outside an overlapping-consensus may even be a source of delegitimation.

In addition to questioning whether the EU can be effective and legitimate if deliberation is confined to an exploration of what is common to different notions of what is needed for the rightful exercise of political power by the Union, we should challenge the assumption that to argue about legitimacy needs be divisive or dysfunctional (Höreth, 1999). Conflict about legitimacy may even stimulate acceptance. In classic parliamentary systems, the conflict between government and opposition nourished understanding and acceptance of the regime (Mill 1972 [1859]). In the American Presidential system, conflict of powers is a foundation of the legitimacy of the whole, since it avoids a tyranny of the majority (Hamilton, Madison, Jay). In the case of the EU, it is possible to advance the hypothesis, which remains to be tested, that conflict between particular legitimating principles contributes to overall legitimacy to the extent that it grounds a system that is subtle and balancedsatisfies all parties.

It is not hard indeed to imagine reasons why actors might prefer an open and continuous competition between legitimating principles even to a political system that definitively opts for their own ideas of rightful governance. Those who believe that successful justification to others is intrinsic to the meaning of a legitimacy may feel easier if their own beliefs about the rightful exercise of power have been established in competition with others, and in a manner that, accordingly, allows them to make specific claims to normative or practical superiority. Those who like living in an open society may combine firm belief in one legitimation principle with a wish to retain the option of being convinced by the case for others in the future. Above all, those who are averse to the risks of arbitrary domination by others (Pettit, 1997) may prefer the certainty of ‘mixed government’ with its negotiated checks and balances between legitimating principles to a even a small danger of provoking and losing a struggle to apply just one notion of the rightful exercise of power to a political system.

Permanent tension between the different vectors of legitimacy that are to be found in the European arena can finally be considered an answer to one of the oldest dilemmas in democratic theory. As Jon Elster (1990) shows, there is a real “democratic paradox” in any theory of the constituant power: since Condorcet, Paine and Jefferson, democratic theorists have puzzled in what measure one generation in adopting a constitution can establish ‘rules of the game’ that subsequent generations are obliged to accept. The answer offered by Condorcet and Jefferson was that any constitution should be considered a provisional convention which could be revised by subsequent generation (every twenty years in Condorcet’s formulation and every nineteen in Jefferson’s ). This recommendation was not adopted in state-level political systems: the general tendency of modern constitutionalism has, to the contrary, been to entrench constitutionalism. In the case of the EU, however, perpetual conflict between approaches to legitimacy softens any tendency towards constitutional determinism : the degree of uncertainty that is deliberately maintained around the principles of Union legitimacy can be seen as a deficiency in so far as it inhibits the formation of a common identity, but as a virtue in so far as it feeds a continuous process of constitutional deliberation (Habermas, 1992; Weiler, 1999), whose political opportunity structure is not a once-off constituent assembly but a seemingly iterative series of conventional deliberations and intergovernmental conferences (IGCs). It is, however, important to understand the implications of any conclusion that the Union should deliberate, and not avoid, conflicts about how it should be legitimated. First, it places at least one limit on who should participate in European integration. Although, deliberative solutions are by definition compatible with disagreement, they only work between those who are prepared to acknowledge the contingency of whatever approaches to legitimacy they personally favour (Ferry, 2000). Second, deliberative ideals pose a tough challenge of institutional design. On the one hand, they require a means of deliberating legitimation conflicts without outcomes depending on power or (self-referential) preferences. On the other, deliberation needs to respect the spatio-temporal limits of politics (Dunn, 2000, p.223), particularly in a political system as massive as the EU.

How institutionalising deliberation ?

A key issue, therefore, is how far the Union can develop representative structures for the deliberation of ‘contradictory but equally reasonable’ approaches to its legitimacy. Although space does not permit an answer to be given here, it is is possible to close with an illustration of how the question is not just speculative and normative. Rather, it can, in part, be addressed through empirical enquiry into the existing structures of the Union. If the analysis of this article is correct the Union has long had to manage the relationship between contradictory but equally views of what is needed to make it legitimate. It would be surprising, therefore, if its political system had not in some way adapted to the problem. In some peculiar circumstances, an ad hoc institution like the Convention on the future of the Union may be needed to set up a forum for deliberation. But we argue that deliberation on principles is also a permanent process, taking place in the ordinary EU system. Consider what is in our view one of the most plausible accounts of contemporary EU governance. Giandomenico Majone argues that the Union is a form of mixed rule where power is not divided according to the functions of government (executive, legislative and judicial), but between the stakeholders in the political system (states, political parties, technocrats, judges, commercial interests and so on). The stakeholders are organised like Estates in pre-modern European politics. They are brought together in varying combinations according to the task in hand and the pattern of collaboration needed to resolve it.

For Majone, what results is a system of representation that is well-adapted to the EU. However, on closer inspection it is more than that. The Estates are practised advocates for the rival legitimation claims typologised in the opening section of this article, internationalindirect, parliamentary, technocratic, legal procedural and corporate. They also reason with one another on the basis of normative and practical insights acquired through previous experience with combining legitimation principles, either in the hope of defending a particular combination, or of adding more of a favourite ingredient in the future. Such a composite legitimacy is fragile: a particular equilibrium can always unravel or call the legitimacy of the whole into question. Yet, the weakness of the overall construction is also its efficient secret. On the one hand, misjudgements by the Estates of combinations of legitimating principles acceptable to their followers soon provoke negative feedback and agonising reappraisal. Thus the Maastricht ratification crisis discredited notions of permissive consensus and catalysed a search for new solutions, including, somewhat tentatively, through the Amsterdam IGC (Moravcsik and Nicolaidis, 1998). On the other hand, a weak political system of multiple veto-holders holds out the probability that there is often at least one actor who is willing and capable of insisting on some standards of justification or fairness.

67. Conclusions The EU does not rest on a single principle of legitimacy. Itself the product of a compromise between numerous foundational visions, it rests on a plurality of ideas about the rightful exercise of political power. In large measure that also goes for national democracies which have, particularly in the last half century, incorporated into the ‘democratic idea’ a variety of notions about the legitimacy of expertise, of judicial control, and of corporate participation. In this respect, the EU appears more like a laboratory for changes that are more or less present elsewhere than as a sui generis system. The main theoretical question thrown up by this pattern of mixed government is the following: how can a system which rests on several principles of legitimacy deal with any contradictions between them ? We have seen here that conflicts cannot be completely avoided, even though, the Union has a number of mechaninaisms at its disposal for maximising complementarities between legitimating principles and minimising tensions between them. Yet that conflict need not be dysfunctional or normatively undesirable. First, deliberation of legitimation priniciples nourishes civic education. Then, it ensures that compromises made today do not foreclose options available to future generations. The Union does not limit its participants to reflecting on the normative basis of a given political order. Instead, it demonstrates how a ‘constitution’ can both frame democratic deliberation and be the object of it.

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