Thoughts on Power and Legitimacy

by Francesca Bignami

Lindseth’s book is a highly valuable analysis of the administrative roots of the European Union, which will be of real service to scholars and students in the field.  Although it is impossible to do justice here to his rich and, in many ways, provocative thesis, he argues that the legitimacy of the European project is drawn from administrative law and the concept of delegation—from national constitutional orders to supranational European institutions.  With this argument, Lindseth refutes the dominant, overwhelmingly constitutional, narrative of the European Union.

In support of his thesis, Lindseth marshals a wide array of historical evidence from the negotiating history of the treaties and the jurisprudence of the Court of Justice and important national courts, primarily the German Constitutional Court:  the powers exercised by European institutions were conceived as a series of administrative delegations from national parliaments and executive branches to supranational institutions.  In addition to these sources, however, it would have been helpful to provide evidence from contemporary public law scholarship. What was being written in national legal journals such as Giurisprudenza Italiana, Neue Juristische Wochenschrift, and Actualite Juridique Droit Administratif?  And in the main public law and international law treatises of the day? 

Lindseth also makes prescriptions, based on his administrative thesis, for institutional design.  For instance, he recommends a Conflicts Tribunal to resolve conflicts between national supreme courts and the Court of Justice.   Yet even though the administrative reading of European governance can convincingly account for the past, it is arguable whether it offers a platform for a future, prescriptive and normative project.   The extent of the powers exercised by European institutions and the multiplicity of national principals suggests that the situation of European governance is different from that of national administrative agencies.  Therefore, maybe Europeans have to abandon their “political-cultural attachment to the nation-state,” as Lindseth puts it, if they wish to have a supranational order that satisfies contemporary standards of good government.   Or course, if this is inconceivable, then it would not be a plausible premise for a future constructive project, but many of the constitutional theorists whom Lindseth engages with believe otherwise and it would be worthwhile addressing the point. 

My final comment concerns the model of administrative law that Lindseth argues legitimizes European governance. Part of the elegance of his argument is attributable to its focus on the principal-agent dimension of administrative law.   However, as Lindseth himself acknowledges in his chapter on judicial review, administrative law legitimates administrative power for other reasons too:  fundamental rights, interest representation, local government empowerment, judicial review for minimum standards of rationality, and so on.   If this is so, then the prospect of legitimate European governance through law and in the absence of a historically and culturally constituted political community might be brighter than Lindseth’s analysis suggests.

In summary, Lindseth provides a nuanced and compelling account of the sources of European legitimacy, which makes an important contribution to our understanding of the roots and future possibilities of European integration.

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