Coming to Terms with Regulatory Power Beyond the State

by Peter Lindseth

Let me first thank Peter and the other members of Opinio Juris for providing this space for an online discussion of my new book.  Let me also thank Ken, Francesca, and Fernanda for taking the time to offer comments.  I am really looking forward to this exchange.

As its title suggests, Power and Legitimacy grapples with what I see as the core disconnect in European integration. This has involved, on the one hand, the creation of supranational institutions with some measure of autonomous regulatory power that can penetrate deeply into national legal orders. And yet, on the other hand, despite the obvious constitutional implications of this process on the national level, European integration has been unable to achieve a democratic and constitutional legitimacy in its own right. There are certainly other bases of legitimacy for integration—as an instrument of peace, as an expression of a denationalized legality, or as a neutral producer of regulatory norms for a market-polity transcending national borders (Fritz Scharpf’s famous ‘output legitimacy’). But the institutions of integration are otherwise not generally understood by Europeans to embody or express the capacity of a new, historically cohesive political community (‘Europe’) to rule itself through institutions ‘constituted’ for that purpose. In that critical regard, the leading bodies of the Member States—executive, legislative, and judicial—have remained the political-cultural locus of self-government in the EU. This is true even as the Member States have delegated significant and often autonomous regulatory power to the European level for numerous functional and political reasons.

How has European public law come to terms with this separation of power and legitimacy? That is the central question motivating my book. The phrase ‘coming to terms’ is used here in a double sense. First, it refers to the development of a conceptual vocabulary to describe this complex reality over the last half-century. In this regard, the European Court of Justice (ECJ) and sympathetic legal commentators have played a key role as advocates of an interpretation of European law as autonomously ‘constitutional’ in its own right, separate and apart from the Member States. Second, ‘coming to terms’ also refers, more figuratively, to the less noticed process of institutional reconciliation, in which European public law at all levels has sought to deal with the conflicting demands of supranational regulatory power and continuing national legitimacy. Here the analytical focus must necessarily move beyond the ECJ, to a comprehensive and historical understanding of the EU’s legal and institutional development.

Appreciating these tensions in the process of ‘coming to terms’ may also help us deal with another disconnect in European integration. As the events of the last decade have made clear, the dominant constitutional understanding of the EU has had a great difficulty accounting for the direction of European public law. ‘Coming to terms’ with the EU’s particular form of regulatory power beyond the state has in fact required mechanisms profoundly dependent on the normative principles and legitimating structures of administrative governance as it has developed over the course of the twentieth century.

This should, in fact, not surprise us. The separation of power and legitimacy has been the identifying characteristic of administrative governance since 1945, if not before. Moreover, the delegations at the heart of administrative governance have been legitimized, in important part, through forms of oversight (though necessarily control) by national democratic and constitutional bodies vis-à-vis the burgeoning administrative apparatus. As my book seeks to show, the evolution of European public law, much less than suggesting a new, autonomous form of ‘constitutionalism beyond the state,’ in fact reflects an increasing convergence around ‘the postwar constitutional settlement of administrative governance.’ The result has been a polycentric constitutionalism in the EU, with regulatory power increasingly exercised at the supranational level but democratic and constitutional legitimacy still concentrated within national institutions.

The evolution of European public law, my book thus seeks to show, reflects a clear effort to maintain, over time, the connection between this denationalized regulatory power and national forms of constitutional democracy. This effort is very much consistent with the postwar settlement on the national level, albeit in an altered form to account for the peculiarities of integration (notably multiple ‘principals’ and regulatory norm-production outside the state). By understanding European integration as a manifestation of administrative governance, Power and Legitimacy seeks to offer a new conceptual vocabulary to ‘come to terms’—both descriptively and normatively—with the integration phenomenon in all its complexity.

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