ABSTRACT
This chapter examines the meaning of legitimacy against the background of early modern constitutional theory, contemporary democratic theory and international governance theory. It assesses the divergent conceptions of legitimacy and their application to the EU multilevel governance system, with a view to locating the source(s), potential and real, of EU legitimacy and establishing whether such legitimacy is dependent upon a documentary constitution. It considers the role of the ECJ and EC law in the legitimisation process, finding that they play a central role in underpinning EU legitimacy from the standpoint of rational justification, which commonly underscores international governance as legitimate. The chapter critically re-examines the EU’s purported ‘democratic deficit’ as a site of contestation and questions whether it has continued relevance as a ‘de-legitimating’ force. It focuses on the legitimating potential of constitutionalism and supporting debate in national political arenas. This chapter concludes that EU legitimacy, far from being selfreferential, is fostered by the interface, assimilation and fusion of various sources of legitimacy within the multi-level governance system. Introduction: Putting Theory to the Service of EU Governance This chapter establishes a conceptual framework within which democracy, legitimacy and constitutional restructuring are examined. The ensuing analysis places legitimacy at the core of the discussion on restructuring, since the presence or absence of legitimacy largely determines whether the constitutional arrangements require restructuring. It recognises democracy (understood in statist terms of representation) as a key indicator of legitimacy, though its salience as the determinant of EU legitimacy is questioned. Constitutional discourse in the EU has recently focused on institutional design and public opinion:1 how can a constitutional order be created that provides security and guarantees fundamental rights and freedoms while at the same time fostering citizens’ identification with EU institutions? This discourse, drawing on the embodiment of the legitimate nation state and the conditions that confer legitimacy to such states, is not new. Nor is the solution likely to be totally new, although the unprecedented governing circumstances within the EU already reveal novel applications or approaches to governance captured by the description ‘multilevel governance system’. Framing the EU’s constitutional development is a
broader conceptual upheaval that questions the very manner we conceive of governance, pointing to the emergence of a new kind of polity complete with new tools for the evaluation of EU legitimacy. Thus, how can a European constitution be designed that adequately describes the dynamic, norm-producing interactions between different units of organisation (supranational, national and sub-national) and institutions in the EI process; that provides security and guarantees citizens’ fundamental freedoms and rights, including liberty in a meaningful way, that is, in a way that does not simply duplicate national protections or mimic nation state norms of democracy and legitimacy unthinkingly or mechanically. Put simply, can a new theory of democracy beyond the state be developed (or can we apply existing theories to changed circumstances) and how can this be given constitutional status and meaning? Further, can early modern democratic theory guide the EU’s development? Locke explored the nature of the contractual conditions that underlie political obligation, viz, all persons are born free and so they can obligate themselves by contracting. Hume attacked the concept that contract can explain political obligation because contracts did not explain how governments arose. The problem with Locke’s theory was the ‘empirically unobservable contract’.2 Hume believed that government arose naturally, out of a natural state. It was thought to be ‘a human invention that need not exist, but will, in the common run of events, evolve’.3 Hence, government was conceived as a human artifact that rested on selfinterest rather than on any contract. In this way, Hume elevated to the foreground the issue of how one creates security, the source of western constitutionalism. According to Montesquieu, political liberty for the citizen meant the ‘tranquility of mind arising from the opinion each person has of his safety’. It was to be safeguarded by assurances given by specific rules in the constitution that restrained power. The doctrine of the separation of powers was the primary means by which this check on power was to be achieved. If Montesquieu was primarily concerned with the restraint of power, Rousseau was concerned with its foundation. Rousseau related political liberty to the notion of the sovereignty of the people. Collective freedom was seen to be the foundation of individual freedom. Thus political and legal liberty associated with the idea of sovereignty was derived from the ‘general will’, the will of subjects that resided in the body politic, ‘a moral and collective body’. Conceived in this way, sovereignty was the cornerstone of political rights and citizen’s liberties, expressed in a legitimate polity through representative institutions. While in contemporary democratic theory the nature and object of representation remains, to an extent, a point of contestation, generating various manifestations of the democratic ideal (for example, ‘deliberative democracy’, ‘majoritarian democracy’, ‘representative democracy’ or ‘popularly-oriented
democracy’), a normatively-oriented, liberal democracy or constitutional democracy underpins all western democratic states. The salient features of such a democracy are ‘a political system with governments elected by popular majority, and with the rule of law enshrined to protect those not in the majority’.5 A cursory review of ‘classical’ early modern democratic theory through to contemporary democratic theory would suggest that the sovereignty of the people (expressed through representative institutions) provides the benchmark by which the legitimacy of a polity may be assessed. These theories developed in concert with the modern nation state and cannot easily be extricated from this form. In carrying out some of the traditional functions of a nation state, the EU arguably attracts the same statist precepts that pertain to nation states. Nonetheless, EU scholars have questioned the applicability of a state-based, normative standard of legitimacy to an evolving, non-state polity.6 The ‘definition of legitimacy in terms of common identities and shared institutions necessarily leads to a diagnosis of a legitimacy crisis’.7 The challenge has been issued to rethink legitimacy in terms of relevance to a multi-level polity. Paradoxically, while research focusing on ‘public opinion’ and ‘institutions’ reflects a concern with legitimacy conceived as ‘recognition’ and ‘representation’ respectively – both statist in orientation – appeals for the reconceptualisation of legitimacy free from dominant national models and formulations of legitimacy, almost invariably refocus on recognition and representation, albeit from different angles.8 Thus, can new forms of representation and recognition be developed detached from state-based conceptions of democratic representation and affective identification with a polity?9 Questions have arisen as to whether EU legitimacy requires that public choices not only be reflected in current and future institutional design but also expressed through those institutions. Diverging somewhat from this line of inquiry, and taking a broader sweep, one may question whether existing constitutional arrangements might be regarded as legitimate in the EU multi-level governance
4 For example, J. Pyke, ‘Globalisation – the Bane of Popular Sovereignty?’ (2001) in C.
