Lindseth Replies: Some Closing Thoughts on Power and Legitimacy

Let me thank Fernanda, Francesca, and Ken for their tremendously thoughtful comments on my new book, Power and Legitimacy: Reconciling Europe and the Nation-State (OUP 2010). And let me also thank once again everyone at Opinio Juris for providing space for this discussion. I hope the readers have found the exercise as stimulating and enjoyable as I have.

It was Giandomenico Majone, as Fernanda’s post rightly points out, who refocused scholarly attention in the 1990s on integration’s relationship to administrative governance on the national level. His well known characterization of European bodies as an “independent fourth branch of government” certainly pointed toward an underlying reality; indeed, it arguably hearkened back to an understanding of European integration that was prevalent at its outset. Majone’s interpretation also helped to spawn a whole social-science literature on supranational delegation and “non-majoritarian institutions” that my book both draws upon but also seeks to transcend. The key drawback in that literature—something that Ken’s post arguably alludes to—is that social scientists have often treated the choice for delegation in general (and for supranational delegation in particular) as driven by a rationalist logic “outside of time,” one without a normative, social, and political history of its own. My book tries to take that history more seriously, seeking to refocus attention on the specifically legal-cultural (indeed, social-psychological) dimension of the process of institutional change.

Such a refocusing requires, in the context of integration, an effort to understand how delegation came to be “experienced” as an appropriate foundation for administrative governance, not just in the 1950s but also before and after. But I hasten to add that my book is primarily a historical synthesis, outlining a conceptual framework and research agenda for the future. My stress is on institutional practices and the conceptions of legitimacy they seem to reflect. I would certainly welcome future researchers testing my analysis against the sources that Francesca’s post, for example, suggests could be explored more deeply. But I would equally stress that it is on the level of institutional practice, not in the writings of legal scholars, that my book discerns integration’s deep, but often overlooked, convergence around the normative principles and legitimating structures of administrative governance.

These principles and structures, most importantly “delegation” and “mediated legitimacy,” are elements of a more constructivist “logic of appropriateness” by which modern public law has reconciled the separation of power and legitimacy in administrative governance. It is in understanding this process of reconciliation—again, very much a social-psychological phenomenon, as Ken nicely emphasizes—that one can begin to appreciate how and why, in modern administrative governance, notions of hierarchical control gave way to looser forms of oversight as an acceptable means of legitimating the diffuse and fragmented forms of regulatory decision-making. As Francesca’s post also points out, this effort has certainly been imbued with constitutional values (“fundamental rights, interest representation, local government empowerment, judicial review for minimum standards of rationality, and so on”). But that does not mean that the recipients of delegated power (again, whether within or beyond the state) have themselves been experienced as democratic or constitutional in their own right. I maintain that supranational administrative governance needs national oversight, if not full-blown control, because Europeans have, to date, found it impossible to “experience” EU institutions on the same level as the “constituted” bodies of the nation-state in a historically and culturally recognizable sense.

Even as European elites have found it expedient to delegate significant regulatory power to these supranational bodies, Europeans more broadly have resisted the idea of the EU as autonomously democratic and constitutional. The evolution of European public law, defined to encompass both the national and supranational levels, arguably reflects this deeper resistance. To paraphrase Lincoln’s classic formulation, Europeans are not (yet) prepared to see supranational institutions as “government of the people.” Two decades before Lincoln, in Democracy in America, Tocqueville toyed with similar ideas, juxtaposing the “centralization of government” in legislative assemblies with the “decentralization of administration.” In European integration, the historically “constituted” bodies of the nation-state, despite their many flaws, have remained the privileged expressions of this Tocquevillean “centralization of government,” as well as of Lincoln’s “government of the people.” Supranational institutions, by contrast, are experienced primarily as new manifestations of the “decentralization of administration.” European institutions may exercise significant regulatory power, but their autonomous legitimacy is wanting. And it is in the realm of European public law that one can discern the ongoing struggle to find a workable reconciliation between the two. The alternative, as Ken’s post eloquently suggests, is a truly Weberian nightmare—bureaucratic domination without any check by representative government, one capable of breaking through the varied and often questionable claims of technocratic “expertise,” whether within or beyond the state.