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Political Legitimacy and Democracy in Transnational Perspective Political Legitimacy and Democracy in Transnational Perspective Rainer Forst and Rainer Schmalz-Bruns (eds) ARENA Report No 2/11 RECON Report No 13 Political Legitimacy and Democracy in Transnational Perspective Rainer Forst and Rainer Schmalz-Bruns (eds) Copyright ARENA and authors ISBN (print) 978-82-93137-30-6 ISBN (online) 978-82-93137-80-1 ARENA Report Series (print) | ISSN 0807-3139 ARENA Report Series (online) | ISSN 1504-8152 RECON Report Series (print) | ISSN 1504-7253 RECON Report Series (online) | ISSN 1504-7261 Printed at ARENA Centre for European Studies University of Oslo P.O. Box 1143, Blindern N-0318 Oslo, Norway Tel: + 47 22 85 87 00 Fax: + 47 22 85 87 10 E-mail: arena@arena.uio.no http://www.arena.uio.no http://www.reconproject.eu Oslo, March 2011 Cover picture: ‘Untitled… Homage to Mark Rothko’ by Mike Lusk. © Mike Lusk 2007 Preface Reconstituting Democracy in Europe (RECON) is an Integrated Project supported by the European Commission’s Sixth Framework Programme for Research, Priority 7 ‘Citizens and Governance in a Knowledge-based Society’. The five-year project has 21 partners in 13 European countries and New Zealand, and is coordinated by ARENA – Centre for European Studies at the University of Oslo. RECON takes heed of the challenges to democracy in Europe. It seeks to clarify whether democracy is possible under conditions of pluralism, diversity and complex multilevel governance. See more on the project at www.reconproject.eu. The present report is part of RECON’s work package 1 ‘Theoretical Framework’, which seeks to develop an overarching theoretical approach to the study of European democracy. The report contains the proceedings of a RECON workshop convened by Rainer Forst (Johann Wolfgang Goethe University) and Rainer Schmalz-Bruns (Leibniz University of Hannover). The workshop, entitled ‘Political Legitimacy and Democracy in Transnational Perspective’ was held in Frankfurt am Main 24-25 October 2008. Erik Oddvar Eriksen RECON Scientific Coordinator Acknowledgements The moments in which political theorists are witnesses to and participants in processes of the formation of new political orders by way of constitution-making are very special, and when we reflect on such moments we usually think of the great debates between Federalists and Antifederalists during the formative era in the United States, or of the General Assembly in France after 1789. Admittedly, the process of European integration is less heroic than these events, and it stretches over a much longer period of time. Still, it is a fascinating development of world- historical importance, and its analysis is essential for anyone who wants to understand the challenges to the construction of transnational polities. Since 2007, the RECON project has been studying the principles, policies, and prospects for democracy within the EU. We have had the pleasure of being part of this research and developing the theoretical framework with other colleagues. In that context, we organized a conference on the theme of ‘Poli- tical Legitimacy and Democracy in Transnational Perspective’ in Frankfurt in October 2008, where we gathered the people whom we thought did some of the most interesting and innovative work on our theme in various disciplines such as philosophy, political science, and law. This volume documents the papers and comments if not, unfortunately, the lively debates that took place. Our heartfelt thanks go to all the participants for their superb contributions as well as to ARENA, especially Erik Oddvar Eriksen, John Erik Fossum, Marit Eldholm, and Hanna Karv, for their support of the publication - and a special thanks to the latter two for their excellent work in the final stages of preparing this report. Many thanks also to Jonathan Klein from the Frankfurt RECON group for his help in getting the manuscripts ready. But most of all, we are indebted to Heike List, researcher in the Frankfurt RECON group since 2008. Her help and extraordinary skill in organizing the conference and in preparing this publication were invaluable. We are aware that engaging in the political theory of the EU is a complicated matter, for here empirical and normative perspec- tives are especially mixed and sometimes confused. We trust, however, that the contributions to this volume will prove productive in distinguishing the issues, the arguments, and the ideals in play. Rainer Forst and Rainer Schmalz-Bruns Frankfurt am Main and Hannover, March 2011 Table of contents Introduction Rainer Schmalz-Bruns and Rainer Forst ........................................................ 1 Part I: Justice and democracy in the postnational constellation Chapter 1 Justice, not democracy Legitimacy in the European Union Jürgen Neyer ................................................................................................. 13 Chapter 2 Justice and democracy Comment on Jürgen Neyer Rainer Forst ................................................................................................... 37 Chapter 3 The great chain of legitimacy Justifying transnational democracy Frank Nullmeier and Tanja Pritzlaff ............................................................ 43 Chapter 4 Transnational democratic legitimation and the nature of political normativity Comment on Frank Nullmeier and Tanja Pritzlaff Rainer Schmalz-Bruns .................................................................................. 63 Part II: Institutions of democratic legitimation beyond the state Chapter 5 Postnational democracies without postnational states? Some skeptical reflections William E. Scheuerman ................................................................................. 75 Chapter 6 Two kinds of transnational democracy Comment on William E. Scheuerman Peter Niesen ................................................................................................. 105 Chapter 7 Legitimacy, supranationalism and international organizations Stefan Kadelbach.......................................................................................... 113 Chapter 8 How will constitutionalism and the idea of law-mediated legitimacy survive in postnational constellations? Comment on Stefan Kadelbach Christian Joerges ......................................................................................... 135 Chapter 9 Political legitimacy and democracy in transnational perspective ‘Democracy and or beyond the state’ Volker Röben ............................................................................................... 145 Chapter 10 Transnationalism beyond the statist paradigm Comment on Volker Röben Tanja Hitzel-Cassagnes ............................................................................... 167 Part III: Democratic legitimacy and the finalité of European integration Chapter 11 Power without arbitrariness? Some reflections on attempts to use indirect legitimacy to justify the EU as a ‘restrained yet capable’ form of political power Christopher Lord ......................................................................................... 181 Chapter 12 Finding a zoo for European polecats, lions and foxes Contexts of democratic empowerment Comment on Christopher Lord Heike List ..................................................................................................... 203 Chapter 13 How desirable is further European integration? Glyn Morgan ............................................................................................... 217 Chapter 14 The constitutional dimension Comment on Glyn Morgan John Erik Fossum ........................................................................................ 235 Chapter 15 Democratic legitimacy beyond borders Government without a state Erik Oddvar Eriksen .................................................................................... 245 Chapter 16 The process of legitimation as a large scale experiment Comment on Erik Oddvar Eriksen Franziska Martinsen ................................................................................... 281 List of contributors Erik Oddvar Eriksen is Director of ARENA – Centre for European Studies and Professor of Political Science at the University of Oslo. His main research fields are political theory, democratic governance, public policy and European integration. Among his publications are The Unfinished Democratization of Europe (2009), and various edited books such as Law, Democracy, and Solidarity in a Postnational Union (co-edited with Christian Joerges and Florian Rödl, 2008) and Making the European Polity: Reflexive Integration in the EU (2005). Rainer Forst is Professor of Political Theory and Philosophy at Goethe-University Frankfurt (Main) and Director of the Research Center on ‘The Formation of Normative Orders’. His main research interests are theories of justice, toleration and democracy. Among his publications are Contexts of Justice: Political Philosophy beyond Liberalism and Communitarianism (2002), The Right to Justification: Elements of a Constructivist Theory of Justice (2011), Toleration in Conflict (forthcoming) and Justification and Critique (forthcoming). John Erik Fossum is Professor at ARENA – Centre for European Studies at the University of Oslo. His main fields of interest include political theory, constitutionalism and the EU, Europeanisation and international integration. Among his publications are Developing a Constitution for Europe (co-edited with Erik Oddvar Eriksen and Agustín José Menéndez, 2004), The European Union and the Public Sphere (co-edited
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