Where to look for legitimacy
A friend of mine (also a lawyer…) told me the following anecdote: A man is on his knees on a sidewalk looking for a watch that he lost on the opposite sidewalk. Someone asks him:
When I reviewed the current strategies of legitimacy for the European Union this anecdote kept coming to my mind. In many respects, I will argue in this chapter that we have been looking for legitimacy in the wrong place in the European Union. The starting point is an analysis of the constitutional challenges that give rise to the legitimacy debate and the current constitutional discussions. I will start by arguing that the origin of the legitimacy question lies in Europe’s claim to independent political authority associated with a community of open and undetermined political goals. This is the outcome of a political transformation in Europe embedded in the processes of constitutionalization and Europeanization. My argument is that such a claim has never been fully legitimized. Instead we have moved directly into discussing how to legitimate the processes and institutional system through which the power derived from that claim is exercised. I will argue that the current dominant strategies for the legitimacy of the EU miss this point. As a consequence they face two main shortcomings: first, they will always be a subsidiary or second order form of legitimacy; second, they take the national form of democracy and constitutionalism as their proxy for legitimacy and, in doing so, are unable to reinvent the concepts of constitutionalism in order to apply them to a new form of political community. The final result is that any solutions brought forward by the current strategies of legitimacy will be deeply contested and insufficient. A viable strategy of legitimacy for the European Union must depart both from rethinking constitutionalism and, in the process, identify what legitimises the claim for a European political community.