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Explanations of European governance were at first largely grounded in international relations theory, notably neofunctionalism and intergovernmentalism, where democracy is not a special concern 18. Legitimacy was not really in issue in the era of so-called "tacit consent", when the European project was seen as essentially an affair of elites who could rely on a docile public to support their decisions uncritically, including the low visibility decisions of the Court of Justice 19. Elite government at Community level was seen as validated by representative democracy at national level 20. It is important to note that this was the prevailing political culture at the time when the doctrine of supremacy was shaped (Below, Section III.2).
When the Community was first perceived as possessing a "democratic deficit", this was largely defined in terms of the absence of representative institutions at EC level. Only after direct elections were conceded in 1979 did attention turn from representation to the problem of sovereignty as manifested in the EP's lack of sovereign lawmaking powers. Significantly, both variants on the theme of representative democracy were under discussion in the formative years when the ECJ was forging the basic constitutional principles of the Community; both were reflected in some of the Court's most ambitious jurisprudence of the period; and both are compatible with integrationism (Below, Section III.1). The robust definition adopted in this paper of popular democratic government is incompatible both with the notion of legitimation through the doctrine of "passive consent" and with elite government, even in the modified two-tier theory of European democracy, whereby popular democracy at national level justifies elite governance in the Community.
Today the argument has shifted. Models of deliberative and participatory democracy are increasingly fashionable 21. These are of course consonant with pluralism; they could flourish in a federal Europe endowed with strong representative institutions and traditions, or a "Europe of the Regions". Popular or populist democracy also contains a notion of inclusivity: as Scott puts it
the modern republic is an inclusive republic which seeks to render audible and effective all the "voices of difference" emanating from within the polity 22.
This, however, necessitates provision not only of machinery for representation but also of pathways for direct public participation in policy- and decision-making. To some theorists of European governance, participatory proceduralism can be used strongly to promote pluralist democracy 23; in practice, however, it contains a powerful bias towards elitism or forms of corporate governance in which interest groups obtain a stranglehold on policy. The "constitutionalisation" of administrative procedures also creates its own problems, discussed in Section IV below.
This chapter suggests that arguments for the convergence of European
legal systems are tacitly based on elitist theories of European government and
originate in the doctrine of passive consent. At Community level, the
relocation of power has typically been achieved through a judge-made
construction - to which national and European judiciaries have contributed - of
constitutional norms imposed on the democratic institutions of governance in
the name of public law. Thus the effect of a "unified system of judicial
protection" throughout Europe could be at least as significant as harmonisation
of procedural criminal law through the sprouting Corpus Juris project
24.
What we are
seeing is a variant of the "open flank" argument, according to which democratic
deficit at European level, or shifts in the balance of power between European
and national institutions, impact unfavourably on democratic government at
national level. Daniel Wincott calls this the "perversion" of European
democracy by the two-tier system of European governance, which has had the
effect of cutting down "domestic mechanisms of democratic accountability" and
so "perverting" the constitutional balance between executive and legislative
organs at national level 25. Similarly, relocation of power to the European
judiciary, anti-democratic in the sense that it substitutes one form of elite
government in the Community for another, can "subvert" national democracy by
indirectly shifting the balance of power at national level. That a substantial
horizontal relocation of power from parliamentary institutions towards a
non-elected judiciary is already occurring, and that this transfer of power to
the judiciary is visible at both national and Community levels, is widely
accepted; indeed, it is a matter of self-congratulation for many lawyers. These
developments are dangerous in that they inhibit and supersede democratic
discussion and debate.
Formalist or positivist traditions of legal scholarship present law as a special system of reasoning, characterised by a quality of coherence or as a set of principles arranged as a system of artificial logic. As the distinguished comparativist F.H. Lawson once observed 26:
All law tends to become a collection of lines of systematic thought made to follow logically from a limited number of premisses; or rather, from a number of decisions of one kind or another, legislative or judicial, systematic bodies of principle are established by a process of induction, and those principles acquire a sanctity of their own which turns them into axiomatic premisses from which other rules and principles can be deduced. This is a process which cannot be avoided.
The view of law as a set of coherent and systematic body of legal norms cemented by a specialised method of reasoning is a central feature of the civilian legal tradition 27 and is widely accepted by lawyers as applying to the Community legal system 28. To complete the positivist picture of orderliness and coherence, the concepts which form the building blocks of the system are seen as autonomous and neutral. Legal concepts become empty vessels, superficially similar and transferable, at least within a given legal family or closely related families 29. At this level of abstraction, for example, it is possible to say that fault is the basis of delictual liability in European legal systems. Similarities between legal systems may also be enhanced by drawing a distinction between the structure of legal reasoning, presented as similar inside European legal families, and presentation of legal argument, seen as a surface variant 30. The view of legal concepts as readily comparable and interchangeable is naturally attractive to EC lawyers because it facilitates and downplays problems of harmonisation and integration of Community legal systems.
Even at the simple level of legal concept, however, harmonisation and convergence may often be illusory. Familiar words like "fault", with apparently similar or even identical meanings when translated, may be differently understood and applied in different legal cultures. This is the underlying message of Pierre Legrand 31:
[R]ules and concepts alone actually tell one very little about a given legal system... They may provide one with much information about what is apparently happening, but they indicate nothing about the deep structures of legal systems. Specifically, rules and concepts do little to disclose that legal systems are but the surface manifestation of legal cultures and, indeed, of culture tout court. In other words, they limit the observer to a "thin description" and foreclose the possibility of the "thick description" that the analyst ought to regard as desirable.
Legal systems are here seen as built up through habits, customs and practices which infuse law and dictate the way in which it will be interpreted. To this cultural package, Legrand attaches the term "mentalité".
Legrand's thesis can be misrepresented as an extremist argument against any form of convergence, harmonisation or incorporation, a claim which would not only render legal systems wholly immune from outside influence but which argues against the course of European history 32. An alternative way to read his core argument concerning mentalité is, however, rather persuasive. Legrand points to several features of the common law, such as the way it moves from fact to principle and remedy to rights, which form its "deep structure". When apparently simple concepts such as good faith or fault are transferred from one legal system to another, the methodology of the system will operate to limit the effect of the transplantation. If fault, for example, is installed as the basis of delictual and tortious liability in every European legal system, what is construed as fault may vary as considerably over spatial boundaries as it has been seen to do over time periods. Fault is a flexible concept, variable along a spectrum, and a system can easily instal or reinstate strict liability through the doctrine of "presumptive fault"; systems protective of defendants may in practice require proof of "grave fault". Something very like this has happened with the interpretation of the uniform EC Products Liability Directive, where harmonisation has in practice come to mean approximation. Legrand's mentalité concept explains why the reality of incorporation is so often "translation". It can indeed be compared with the original notion of the directive in EC law, which required Member States to work towards a given goal, with the flexibility to work with the mentalité of their own legal system and not against the grain. This conception has, however, been rendered partially nugatory by the ECJ's promotion of the doctrine of "direct effect".
Somewhat similar is Gunther Teubner's conception of "legal transplants" as 33,
a fundamental irritation which triggers a whole series of new and unexpected events... [they irritate] law's 'binding arrangements'... they unleash an evolutionary dynamic in which the external rule's meaning will be reconstructed and the internal context will undergo fundamental change.
Like Legrand, Teubner rejects the idea that that foreign transplants are easily absorbed by the host system and draws on sociological research to argue that proponents of harmonisation are moving in precisely the wrong direction. Globalisation will not necessarily result in a "convergence of social orders and in a uniformisation of law" because "different sectors of the globalised society do not face the same problems for their laws to deal with" 34. Basil Markesinis provides a telling example drawn from the area of tort law harmonisation 35. Tort law and welfare law, he argues cogently, are two closely related areas of law which have been allowed to proliferate in uncoordinated fashion inside national legal systems, largely because the first is categorised as civil law and the second primarily as administrative. In the light of different national attitudes to welfare, vertical convergence of tort laws is likely to increase horizontal disjunction of tort and welfare law; yet to attempt at one and the same time vertical and horizontal convergence would be an impossible exercise - complicated in the Community by the absence of clear competence in either area.
This is why Christian Joerges, reflecting on efforts by the European Commission to harmonise consumer protection law, deduces that reform is always best undertaken at national level 36:
The compulsory incorporation of "foreign" concepts... affects deeper structures of private law systems. Every legal concept, every dogmatic construction, every line of legal argument operates in pre-determined traditional contexts. Legislative acts of national parliaments remain rooted in these contexts, even when they are perceived as destructive interventions. Moreover, they are still subject to control by case law, which is formulated with the objective of maintaining coherence within private law.
To summarise, conceptual differences between legal systems go much
deeper than procedure, presentation of argument or methods of construction.
They spring from different cultural traditions, reflecting "different
justifications for the imposition of legal obligations and the creation of
rights", which derive from "the moral and political foundations" of different
societies. Law - and here the earlier example of welfare law is highly
pertinent - reflects "accepted principles of distributive justice in a
community"37.
If concepts represent only the tip of the iceberg of law then, in thinking about law as a cultural artifact, we may need to enlarge our definition. David Nelken depicts 38 legal culture as a "multi-layered" concept which includes as well as legal norms, "salient features of legal insititutions and their infrastructure, social behaviour in creating, using and not using law, as well as legal consciousness in the legal professions and amongst the public". Lawrence Friedman's conception of law is still wider. He includes 39:
the values and attitudes which bind the system together, and which determine the place of the legal system in the culture of the society as a whole. What kind of training do the lawyers and judges have? What do people think of law? Do groups or individuals willingly go to court? For what purposes do people turn to lawyers; for what purposes do they make use of other officials and intermediaries? Is there respect for law, government, tradition? What is the relationship between class structure and the use or nonuse of legal institutions? What informal social controls exist in addition to or in place of formal ones? Who prefers what kind of controls, and why?... It is the legal culture, that is, the network of values and attitudes relating to law, which determines when and why and where people turn to law or government, or turn away.
Here law and legal culture are presented as an onion, whose skins can be stripped away to reveal deeper layers. But whether these background values are described as making up the mentalité of the judge and lawyer or are incorporated into a "thick" definition of law is really immaterial. The point is that they need to be taken into consideration whenever harmonisation and convergence are in question. Harmonisation and convergence are complex issues, not to be undertaken lightly. They may even be impossible goals. Attempts at harmonisation and convergence may, as argued in the next section, even if ultimately rejected by the host system, cause it substantial harm.
Public law has particularly deep roots inside a cultural and political framework. It is difficult to see it at all in terms of a set of neutral, apolitical concepts and it has been defined as "a sophisticated form of political discourse 40". Stripping away its skins reveals administrative law encased in constitutional law by which it is nourished and to which it owes its being. Constitutional law is in turn wrapped in, and permeated by, the prevailing political and governmental culture. It is these deeper values which help to determine, amongst other things, "when and why and where people turn to law or government". The mirror-image of Legrand's notion of mentalité is the terminology of "background theory" or "mindset" 41, in use amongst English public lawyers to describe the deep values which infuse constitutions and legal systems. Behind rules and concepts, the argument runs, lie habits, customs and ways of thought derived from historical experience. These inarticulated premisses infuse both constitutional law and judicial decision-making.
Even if globalisation is bringing European societies closer together, there remains a considerable cultural divergence. National and subnational culture is still strongly reflected in modes of government and in public administration. It is the state or region which still possesses the crucial role in ensuring continuity of effective government. It is national institutions which at present provide the central unit of governance within the Community. As Alan Dashwood puts it 42:
The individual citizen... continues to experience government as, essentially, a Member State phenomenon... Rules touching the lives of individuals in all kinds of ways may no longer be home-produced; but the sometimes unwelcome consequences of the rules are exacted by officials with familiar accents and uniforms and owing their allegiance to political masters who are answerable through the national democratic process.
Nor are we yet ready to conform to some 43
European model or ideal type of public administration which the countries of the European Union are reaching towards, leave alone a model of modernisation.
At one end of a theoretical spectrum we find the strong public service ethos central both to French public administration and administrative law 44; at the other, the public management theories of Thatcherite Britain 45. There is admittedly much exchange of ideas; privatisation and agencies have proliferated, regulation is recognised across Europe as a useful technique for control of the private sector 46 and managerialism exerts a growing influence in national civil services 47. But recruitment, personnel, techniques of administration continue to vary 48 and the reality is still a plural Europe of many administrative cultures, valid in their own cultural context. The situation is further complicated where states possess strong local or regional traditions (as in Belgium) or in federal states (notably Germany), where implementation by regions cannot be dictated by a strong central government. At the level of service delivery variance remains very great; the reality here is a "Europe of many speeds" in which "levelling up" can be undertaken only slowly 49. Systems and processes which work in one Member State may be largely ineffectual in others and effectiveness in the real, grass roots, sense provides the strongest of arguments for pluralism.
Empirical research shows that national administrative attitudes and
culture profoundly affect implementation of Community directives and policies;
where these do not harmonise well with national administrative structures, they
may be transposed and lip-service may be paid to them, but they will remain
largely a dead letter. An empirical study made of the implementation of visa
and asylum procedures, for example, revealed enormous divergence in
implementation at national borders, where the inbred culture of immigration
officers allowed traditional practices to continue unchecked 50. Enlargement is particularly
relevant to this picture. In states emerging from the shadow of
totalitarianism, the struggle against Stalinist bureaucracy has been acute and
recruitment of sufficient capable personnel dedicated to the methods of western
democratic capitalism is a special problem. Especially in environmental
matters, there is talk of a prolonged period for conformity. The argument is
not one for stasis. Convergence and harmonisation may still remain ultimate
goals; implementation will not be achieved through working against the grain of
national cultural traditions; backlash and anti-European sentiment are the more
likely outcome.
Legal as well as political and administrative systems
have internal dynamics which give them their special character. John Bell
identifies 51 four very
different European administrative law traditions. The French-influenced systems
of France, Belgium, Luxembourg, Italy, Portugal and Spain all acknowledge a
classical demarcation line between civil and administrative jurisdictions. In
the Germanic tradition the distinction is blurred with greater overlap and
(though Bell does not say this) there is a marked emphasis on justiciable
constitutional rights 52. Bell remarks of the common law countries of
Britain and Ireland that they, in common with the Netherlands could be seen as
possessing "a strong tradition of administrative non-law". The same is
true of the Scandinavian family where, at least in Sweden and Denmark, judicial
review takes second place to the ombudsman. Bell's criteria, as he would be the
first to admit, merely scrape the surface; deeper examination would reveal
further fissures between members of the same family. Moreover, the families
under consideration are fairly closely related; this will not necessarily
continue to be the case when the Community begins to accept further members
from the ex-Eastern bloc or, in the South, Turkey.
Six of the present Member States place great emphasis on Parliaments in securing accountability; in the case of the United Kingdom, the telling phrase "political constitution" 53 is apposite. In English constitutional law, the central doctrine of parliamentary sovereignty can be seen to serve a dual purpose: on the one hand, it simply establishes the hierarchy of legal norms; on the other, it constitutes the fundamental principle of democratic legitimacy. Statute law is paramount because it is established, legitimated and underpinned by the system of parliamentary democracy by which we have come to be governed. The cultural resonance of the second idea in English law canot be underrated, any more than we can ignore the very different constitutional settlements of other European nations in which a separate administrative jurisdictional distinction has become entrenched and where in consequence the public/private divide has developed deep conceptual accretions which constitute the prevailing mindset 54. Again, take the rule of law principle, entrenched in the Treaty as a key principle of European constitutional settlements. The divergent terminology - rule of law, règne de la loi, rechtstaat, état de droit - all captures something of the spirit of the doctrine but is by no means synonomous. It is important too to note that formal or thin, and substantive or thick, interpretations of the concept exist side by side, often within the same legal culture 55. There is not one rule of law but many.
Bell's reference to a tradition of administrative non-law is also highly significant. Law - as Friedman signals 56 - is one of a number of pathways which link, and provide access to, a society's social and political systems. One of the key functions of administrative law is to provide the citizen with these pathways. In no society does law have a monopoly, but in some societies it is less highly prized than others. It has, for example, been said that "the idea that there could be any state activity which may not be challenged in court is alien to German law 57". Other European societies, as Bell indicates, evince a distinct preference for alternative dispute-resolution, as in the robust Scandinavian ombudsman tradition. One cannot be sure what will result from blocking one of the pathways or widening another. Complaints may be diverted into a system where they cannot be appropriately handled or they may dry up altogether. Damage may then be caused to the political culture, ultimately impinging on a society's concept of citizenship.
It is important to stress once more that this paper is not arguing either for stasis, cultural purity or isolationism. European societies have been influenced over the course of centuries by each others' cultures and, to quote Marc Galanter 58, "legal cultures, like languages, can absorb huge amounts of foreign material while preserving a distinctive structure and flavour". But when we talk of legal transplants as an irritant, we must realise that they may operate to destabilise legal and political institutions or change the balance of institutional power in a way which a given society finds unacceptable. When legal transplant impinges in this way on the wider political practices of a society, the democratic system is indeed perverted. The "open flank" argument is here applied through law.
18 M. Horeth, "No way out for the beast? The unsolved legitimacy problem of European governance" (1999) 6 Journal of European Public Policy 249.
19 D. Obradovic, "Policy Legitimacy and the European Union" (1996) 34 Journal of Common Market Studies 191.
20 S. Andersen and T. Burns, "The European Union and the Erosion of Parliamentary Democracy: A Study of Post-parliamentary Governance", in S. Andersen and K. Eliassen, The European Union: How Democratic Is It?, Sage, 1996.
21 P. Craig,"Democracy and Rule-making Within the EC: An Empirical and Normative Assessment" (1997) 3 European Law Journal 105; D. Curtin, Postnational Democracy. The European Union in Search of a Political Philosophy, Kluwer, 1997 and "'Civil Society' and the European Union: Opening Spaces for Deliberative Democracy?" in Collected Courses of the Academy of European Law, vol VII, Book 1, p. 185.
22 J. Scott, "Law, Legitimacy and EC Governance: Prospects for 'Partnership'" (1998) 36 Journal of Common Market Studies 175, 177.
23 K-H Ladeur, "Towards a Legal Theory of Supranationality - The Validity of the Network Concept" (1997) 3 European Law Journal 33.
24 See M. Delmas-Marty (ed), Corpus Juris introducing penal provisions for the purpose of the European Union, Paris, Economica, 1997; W. van Gerven, "Constitutional Conditions for a Public Prosecutor's Office at the European Level", in G. De Kerchove and A Wyenbergh (eds), Vers un espace judiciaire europeen, Editions ULB, 2000.
25 D. Wincott, "Does the European Union Pervert Democracy? Questions of Democracy in New Constitutionalist Thought on the Future of Europe" (1999) 4 European Law Journal 411. See also D. Chryssochoou, "Democracy and Symbiosis in the European Union: Towards a Confederal Consociation?" (1994) 17 W. European Politics 1.
26 "Comparative Law as an Instrument of Legal Culture", in F.H. Lawson, Selected Essays, Oxford, 1977, Vol II, p. 73.
27 J.H. Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, Stanford University Press, 1969.
28 F. Snyder, "General Course on Constitutional Law of the European Union", in Collected Courses of the Academy of European Law, 1997, p.50, cites to this effect classic texts by J-V Louis, The Community Legal Order, 2nd edn 1990, p.13 and G. Isaac, Droit communautaire general, 1983, p. 111.
29 For the concept of legal families (discussed further below), see R. David and J. Brierly, The Major Legal Systems in the World Today, Butterworths, 3rd edn 1985, pp. 17-20.
30 J. Bell, "English and French Law - Not so Different?" (1995) 48 Current Legal Problems 63. The argument is justifiably critiqued by B. Markesinis, "The Comparatist (or a Plea for a Broader Legal Education)" (1995) 15 Yearbook of European Law 262, 269.
31 P. Legrand, "European Legal Systems Are Not Converging" (1996) 45 Internatonal and Comparative Law Quarterly 52, 56.
32 R. van Caenegem, An Historical Introduction to Private Law, Cambridge University Press, 1992.
33 G. Teubner, "Legal Irritants: Good Faith in British Law Or How Unifying Law Ends Up in New Divergencies" (1998) 61 Modern Law Review 11, 12.
34 At p. 13.
35 B. Markesinis, "Why a code is not the best way to advance the cause of European legal unity" (1998) 5 European Review of Private Law 519, 521.
36 C. Joerges, "The Europeanization of Private Law as a Rationalization Process and as a Contest of Disciplines - an Analysis of the Directive on Unfair Terms in Consumer Contracts" (1995) 3 European Review of Private Law 175, 183. On the difficulties, see N. Questiaux, "Implementing EC Law in France: The Role of the French Conseil d'Etat", in P. Craig and C. Harlow (eds), Lawmaking in the European Union, Kluwer International, 1998.
37 Citations from H. Collins, "European Private Law and the Cultural Identity of States" (1995) 3 European Review of Private Law 353, 356 and 360.
38 D. Nelken, "Disclosing/Invoking Legal Culture: An Introduction" (1995) 4 Social and Legal Studies 435, 438.
39 L. Friedman, "Legal Culture and Social Development" (1969) 4 Law and Society Review 29, 34.
40 M. Loughlin, Public Law and Political Theory, Clarendon, 1992, p. 4.
41 C. Harlow, "Changing the Mindset: The Place of Theory in English Administrative Law" (1994) 14 Oxford Journal of Legal Studies 419; P. Craig, Public Law and Democracy in the United Kingdom and the United States of America, Clarendon Press, 1990, p.3.
42 A. Dashwood, "States in the European Union" (1998) 23 European Law Review 201, 213.
43 A. Claisse and M-C. Meininger, "Les fonctions publiques a l'epreuve de la modernisation", in L. Rouban and J. Ziller (eds), Special Issue: "Les Adminstrations en Europe: d'une Modernisation a l'Autre" (1995) 75 Revue francaise de droit administratif 345 (author's translation).
44 E. Malaret Garcia, "Public Service, Public Services, Public Functions, and Guarantees of the Rights of Citizens: Unchanging Needs in a Changed Context", in M. Freedland and S. Sciarra (eds), Public Services and Citizenship in European Law, Public and Labour Law Perspectives, Oxford University Press, 1998.
45 C. Hood, "A Public Management for All Seasons" (1991) 69 Public Administration 3.
46 G. Majone, "The rise of the regulatory state in Europe" (1994) 17 W. European Politics 77.
47 D. Farnham et al, New Public Managers in Europe, Basingstoke, Macmillan, 1996.
48 J. Burnham and M. Maor, "Converging Administrative Systems: Recruitment and Training in European Union Member States" (1995) 2 Journal of European Public Policy 185.
49 W. Kickert, Public Management and Administrative Reform in Western Europe, Edward Elgar, 1997.
50 S. Peers, Mind the Gap! Ineffective Member State Implementation of European Union Asylum Measures, London, Immigration Law Practitioners' Association and Refugee Council, 1998.
51 J. Bell, "Mechanisms for Cross-fertilisation of Administrative Law in Europe", in J. Beatson and T. Tridimas (eds), New Directions in European Public Law, Hart Publishing, 1998, pp. 149-151.
52 J. Schwarze, "The Convergence of the Administrative Laws of the European Union Member States" (1998) 4 European Public Law 191, 192.
53 J.A.G. Griffith, "The Political Constitution" (1979) 42 Modern Law Review 1.
54 J. Allison, "Cultural Divergence, the Separation of Powers and the Public/Private Divide" (1997) 9 European Review of Public Law 305 and A Continental Distinction in the Common Law, A Historical and Comparative Perspective on English Public Law, Clarendon Press, 2nd edn, 2000, advances a very similar argument to that of Legrand.
55 P. Craig, "Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework" [1997] Public Law 467.
56 Above note 38.
57 W. Rufner, "Basic Elements of German Law on State Liability", in J. Bell and A.W. Bradley (eds), Governmental Liability, A Comparative Study, London, British Institute for Comparative Law, 1991, p. 252.
58 M. Galanter, "Predators and Parasites: Lawyer-Bashing and Civil Justice" (1994) 28 Georgia Law Review 633, 674.