Power and Legitimacy: Europe and the Nation State

Reconciling national sovereignty with European unity is a challenge -- not least to democracy.

The convulsions of the last decade have profoundly disoriented European integration scholarship, and the ongoing Eurozone crisis seems to be even more severely challenging to the idea of a supranational European Union. As we continue to witness, economic and political integration has always entailed "more Europe," but it has never entailed autonomous democratic and constitutional legitimacy. For that, national institutions have remained crucial. In his book Power and Legitimacy: Reconciling Europe and the Nation State, Peter Lindseth, a Daimler fellow at the Academy this spring, offers a historical synthesis to understand integration as an extension of administrative governance. His February 8 lecture explored the implications of integration moving forward. The lecture was moderated by Ingolf Pernice, the chair of Public, International, and European Law at the Humboldt-Universität zu Berlin.

The European Union, Lindseth began, "is an extension of the forms of administrative governance that consolidated themselves on the national level in the decades after 1945." This he calls "the postwar constitutional settlement of administrative governance," an arrangement that emerged out of "two countervailing historical trends": the increased centralization of national constitutional bodies (elected assemblies, increasingly plebiscitary chief executives, national court systems), and the diffusion and fragmentation of regulatory power into “an increasingly variegated administrative sphere operating at multiple levels." What exactly does this mean? During the late nineteenth century, nation-states consolidated themselves both territorially and constitutionally. Nevertheless, the developments of industrialization, urbanization, and the increasingly swift movements of capital, goods, and labor in and beyond the nation-state facilitated the development of complex bureaucracies and governance structures. And though the nation-state attempted to harness this movement for its own ends, it was only partly successful. The nation-state proved to be "a leaky and porous vessel," as global historians Charles Bright and Michael Geyer have noted, not least in the administrative context. Despite popular images of "national consolidation" and rigid organizational hierarchy that emerged at this time, Lindseth argues that the "manifold instances of regulatory power" that today reach beyond the bounds of any state (legislative or executive) -- the World Trade Organization, for example, and to regional entities like the EU or NAFTA -- are results of the aforementioned administrative “leakiness” of the modern state. Given this observation, Lindseth sees even the European Parliament and the European Court of Justice as products of this continuing “administrative” diffusion and fragmentation of regulatory power beyond state borders. European public law has been attempting for decades to balance the two historical demands for both national sovereignty and extra-state administrative expansion, a bipolar situation inherited from the nineteenth century that only intensified over the course of the twentieth.

It's not just Lindseth who senses this deep historical dilemma, of course. At a recent talk in Berlin, Herman Van Rompuy, the head of the European Council, noted that the current financial crisis is forcing leaders of European nations to "take center stage" and this raised suspicions of a "renationalization of European politics." But Van Rompuy took the brighter view, Lindseth said, saying that the recent direct-dealings between heads of state (see the regular Sarkozy-Merkel outings) meant a "Europeanization of national political life." Tellingly, Angela Merkel, stalwart leader of Europe's paymaster, recently remarked that "Europe is domestic policy."

This may be so, but how did we get here? Lindseth's book traces the evolution of executive and administrative expansion during the 1980s and early 1990s, leading to the Treaty of Maastricht (which created the European Union, on February 7, 1992). This in turn gave rise to EU initiatives in the spheres of consumer protection, trade policy, and environmental safeguarding. As a consequence, the EU has become a "prodigious producer of regulatory norms" and a major part of domestic policy making. But there is a problem with the Europeanization of national political life, Lindseth and many other commentators say: European citizens themselves see Brussels as a faceless, soulless bureaucracy with little connection to their own sense of political identity. "The gentle monster that is Brussels," is how the German writer and intellectual Hans-Magnus Enzensberger very aptly put it. And though the European Parliament was established as the expression of "the fundamental democratic principle that peoples of Europe should take part in the exercise of supranational power through the intermediary of a representative assembly," it has failed to stem, Lindseth argues, the "negative perception of the EU as fundamentally bureaucratic and distant." Anyone who lives in a European state can attest to it.

This sorry state of affairs has been little helped, Lindseth says, by what he calls the "parliamentary democratization strategy," or the empowerment of the European Parliament over the last several decades as a means of bringing Europe closer to citizens. This strategy has largely failed because it is based on a misunderstanding of what democracy is, and how legitimate democracy is realized over time. Lindseth bases his definition of democracy on Lincoln's "Gettysburg Address" (where we read the famed lines, "Democracy is government of the people, by the people, and for the people"). In terms of “government by the people,” Lindseth says this means that democracy must involve popular participation (elections, or "input legitimacy"), which the EU does hold and in which a (small) number of European nationals vote. As for "government for the people" (or, in the parlance of political science, "output legitimacy"), this means that government must strive to guaranty the security and prosperity of its citizens. Lindseth thinks that, here too, the EU has legitimacy and meets the tests of supplying its citizens with many of the things that make their lives more secure and prosperous. So if the EU is getting so much right, what is the problem?

Lindseth thinks the major stumbling block to a smoother integration of the nation-state into the European Union lies in "Lincoln's threshold criterion: government of the people." Here he is referring to that precious relationship between the people and a set of governing institutions whereby the people perceive that those institutions are their “own,” which "they have constituted for the purposes of self-government over time." Prior to this constituted body there has always been, in the United States and other democracies, the idea of "the people" itself. By this Lindseth means a historically cohesive community with a shared identity whose collective experience and shared goals in part creates the perception of that peoples' right to self-legitimize the form of institutions and mechanisms of government they have chosen. Unfortunately, given its very diversity, the European Union does not meet this "demos" criterion. And without this kind of legitimacy, he argues, Europe will have a great deal of difficulty acquiring the kind of legitimacy that will make it appear a body "of the people." "The problem in the EU," Lindseth says, "is not democratic deficit….Rather the problem is one of democratic disconnect."

Power and Legitimacy, aside from these insights, delves into legal historical theory in order to better understand the "national legitimating mechanisms" that European public law has developed to make up for the EU’s lack of autonomous democratic legitimacy. The snag in this move, however, is that these national legitimating mechanisms now being put to work on the supranational level in the EU recapitulate, Lindseth argues, many of the same sorts of tensions and trends towards "diffusion and fragmentation" that created the supranational entities in the first place. This writer thought this final element of Lindseth’s presentation brought to mind a famous quote from the nineteenth century, the era from which today's EU legitimacy crisis stems. "Hegel says somewhere that all great historic facts and personages recur twice," Karl Marx famously remarked in "The Eighteenth Brumaire of Louis Bonaparte" (1852). "He forgot to add: 'Once as tragedy, and again as farce.'"