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As the burgeoning literature on the subject reminds us, there are many ways to cut the conceptual cake of legitimacy in the European Union.5 A first distinction is relatively uncontroversial, although the terminology used by various authors differs. This concerns the divide between the internal or social dimension of legitimacy on the one hand, and its external or normative dimension on the other. The former dimension refers to the social acceptance of the EU, to the issue of whether, and to what extent, the EU is rooted in popular consent or is otherwise congruent with the customs, beliefs, preferences and aspirations of its various public constituencies. The latter dimension is concerned with the justifiability of the EU in accordance with `external' standards, including the attractiveness and efficacy of its objectives and whether or not its institutions are just and democratic. Clearly, these two dimensions are closely inter-related. Social legitimacy is unsatisfactory unless it is grounded in a deeper normative legitimacy, and, indeed, given the internalisation of wider justificatory discourses in the moulding of individual preferences and in the formation of the collective will, it is incoherent to imagine social legitimacy without its embracing the deep presupposition or reflexive appropriation of much that is the subject of normative legitimacy. Equally, normative legitimacy is unsatisfactory unless it is vindicated in social forms, and, indeed, in an epoch in which our epistemological approach to the idea of the `good society' is markedly anti-foundationalist, it is difficult to conceive of a broadly persuasive idea of normative legitimacy which is not constructed through, or apt to be tested against, the outcome of actual or hypothetical processes of social deliberation.
It is a more difficult task to disaggregate legitimacy in terms of the characteristics of the political entity - in the present case, the EU - to which it refers. One approach which builds upon existing approaches in the literature,6 and which may be of particular use in teasing out the significance of the EU's constitutional project and of the Commission's White Paper as part of that project, is to adopt a threefold distinction embracing performance legitimacy, regime legitimacy and polity legitimacy. Each of these dimension is closely related to the other two and any rounded assessments of the legitimacy standing and prospects of the European Union requires careful attention to all three.
Performance legitimacy - whether the EU has the right priorities and policies and how well it pursues them - has always occupied an important place in the development of the European Union. As one analysis puts it, "[t]he possibility of utilitarian justification has always been central to the analysis and practice of European integration."7 The reasons for this are not obscure. Clearly, a major founding rationale for the European project was to achieve various economic purposes that required the States to make common regulatory cause in the areas relevant to these purposes. Just as in the aetiology of any international organisation, regime factors were, at the outset, of secondary and derivative consideration, as the means to the achievement of these purposes, while any additional questions of `polity' legitimacy were barely, if at all, registered, as this would require the unlikely assumption that the European Union's Treaty predecessors had initially sought to construct, or succeeded in constructing, anything as grand as a `polity'.8
Yet, while performance legitimacy remains of profound significance, regime and polity considerations have, over the succeeding half century, become of increasingly central concern. By regime legitimacy we mean the legitimacy of the overall institutional framework through which the entity in question is constituted and regulated. Regime legitimacy is concerned with the deep pattern of political organisation and "style"9 of political engagement within the entity in question, with the role, "scope"10 and representative quality of governing institutions and their mutual relationship, both as a matter of formal law and active political culture. The links between performance legitimacy and regime legitimacy are intimate and complex. Performance legitimacy clearly depends in no small measure on the capacity of the relevant institutional matrix to deliver, both in terms of the nurturing of a policy-making environment conducive to the development of `good' policies and in terms of the fashioning of institutions equipped to implement in an effective manner the polices which are developed. Conversely, as the performative scope and ambition of an entity increases, clearly the legitimacy of the institutional regime which sustains the entity becomes a salient consideration in its own terms, and not just as an instrument for performance delivery. The more the European Union's regulatory sphere has expanded to cover decisions bearing upon the allocation of key resources and the balance between fundamental political values, and the more it has come to challenge the dominance of the State in these matters, the greater has become the concern that its institutional regime is fully and fairly representative of the range of constituencies affected by its actions.
What of polity legitimacy? This is a more elusive notion, less fully explored in the literature, but again of increasing significance. A fruitful starting point is to think of polity legitimacy as a composite category, an umbrella term capturing all dimensions of the legitimacy of the entity in question. Patently, then, polity legitimacy includes and is, as explored further below, in significant measure dependent upon performance legitimacy and regime legitimacy, which, as noted, are themselves complexly related. But what else is involved in polity legitimacy? This depends upon what we mean by the term `polity'. This plunges us immediately into deep waters since perhaps the most contentious and inconclusive debate about the European Union in recent years, within both academic and political discourse and in terms both of normative and social legitimacy, has concerned precisely the type of political association that the sui generis European Union represents. Evidently less than a state but more than a traditional Treaty-based international organisation, it remain far easier and far less controversial to conceive of the EU in terms of what it is not rather than what it is. Yet, if we attempt to do more than to eliminate false suspects and seek also to make a positive identification, then, at least for the purposes of an inquiry into legitimacy, it is perhaps best to aim for a modest analytical framework which emphasises continuity with what we are already familiar without compromising our capacity to acknowledge and imagine what is new.
This, I would argue, is how we should exploit the conceptual currency of the term `polity'. In the so-called Westphalian world, states have provided the paradigm form of polity, or political community.11 If we also conceive of the novel political form of the European Union as a polity, albeit a non-state or post-state polity, then, in common with states, it must meet certain minimal conditions of political community. These minimum conditions we can discover by disaggregating our idea of `political community' into its two constituent terms. `Political' refers to the measure of autonomous political authority - or, in some views, at least `sovereignty'12 - vested in the entity in question. `Community' refers to the social dimension, the sense of belonging to, identification with, or, if you like, `citizenship' (in its `thick' sociological sense, rather than its `thin' legal sense) of the entity in question on the part of those who are implicated in, or affected by, the decisions of that entity.
Two further points should be made by way of clarification. First, the idea of a `polity' must be seen in `more-or-less' terms rather than `either-or' terms.13 `Polity-ness' is a question of degree, of gradation along a continuum, rather than an absolute state. There may be sceptical questions, most forcefully put by state constitutionalists in legal discourse14 and by liberal intergovernmentalists in international relations discourse15 about just how much authority the EU wields and how autonomously it does so, yet, provided there is some common recognition that greater autonomous political authority is vested in the EU than in other international organisations, the analytical value of the `polity continuum' is vindicated. Equally, there may be questions, most forcefully put by proponents of the `no-demos' thesis,16 about just how deeply individuals register their identification with the EU as a political authority, but provided that such identification is different in quality from that which applies in the case of traditional international organisations the idea of the `polity continuum' again pays its way. Secondly, even though the status of an entity as a polity may be a matter of degree, both elements mentioned above must be present in some measure for a plausible claim of this sort to be made. That is to say, `community' is not enough if it is merely an "imagined community"17 without the support of political authority, as in many unfulfilled movements for national self-determination. Equally, `political authority' is not enough if there is no or little evidence of those affected by that authority acknowledging the political authority in question as a component part of their political identity, as in the case of powerful regulatory authorities with restricted mandates and/or weakly representative institutions, such as the United Nations, the Council of Europe or the WTO.18
The identification of the above two component elements allows us to locate the additional dimension beyond performance legitimacy and regime legitimacy involved in polity legitimacy. A polity enjoys legitimacy qua polity to the extent that its putative members treat it as a significant point of reference within their political identity. There are complementary vertical and horizontal dimensions to this process of reference, which relate to the `political' and `community' features respectively. Vertically, there needs to be a minimal attachment to, or embeddedness in, the polity as such, an acknowledgement that the entity provides a framework of norms which connects the putative member to the authoritative institutions of the entity in a chain of reciprocal rights and obligations, or, to use a less rigid metaphor, in a web of mutual commitments. Horizontally, what is required is a minimum sense of `political community' or `we-feeling'19 among the putative members, a perception of common belonging to and a recognition of a shared set of rights and obligations vis-à-vis the one entity.
On the basis of these remarks, three tentative propositions may be put forward about the nature of the polity legitimacy of the European Union, and, in particular, of the ways in which it may be distinguished from that of the state. In the first place, the polity legitimacy of the EU is more precarious than that of the state. Again, this has both a `political' (authority) and a `community' (identity) dimension. At the level of political authority, both the general idea of the state and particular state traditions and boundaries are deeply entrenched and have a resilience which can withstand high levels of performance and regime illegitimacy. At the level of political community, deep-rooted national and even pluri-national identities20 supply cultural substrata which, again, may survive the iniquities, failures or abuses of particular performative aims or achievements, and regime forms. So, even the most deep-rooted social, political and legal revolutions are often consistent with the continuity of the particular state, as with pre- and post-apartheid South Africa, or, allowing for a 45-year hiatus, pre-1945 and post-Cold War Germany. And even where particular territorial states terminally fail, as (presumably) in the case of the break-up of the Soviet Union or Yugoslavia, the template of the state continues to be used for the units of political authority which take their place. In contrast, the European Union lacks both a settled template of political authority and the relatively `thick' cultural identity of the national or pluri-national state, even if we also accept that the idea that such a thick identity does, or should, rest on common ethnicity is widely and correctly discredited. As already noted, the European Union is a new and sui generis political formation, and, just because it is so, it cannot avoid or answer questions about the type of polity it is, including, crucially, whether it should be considered a separate polity at all, rather than a sophisticated, but ultimately derivative, institutional outgrowth of state interests, by relying upon some general model, of which it is but one particular instance. It lacks, in other words, a generalizable template and background presumption of settled political form At the level of identity, too, it is well-known and much discussed that the European Union lacks the strong cultural ties of common language, traditions, history, affective symbols, and developed civil society and public sphere, which, in various mixes, are central to many national or pluri-national state identities.21
Secondly, precisely because the European Union lacks these latent attributes of authority and identity, its precarious polity legitimacy is far more reliant on the processes, designs and accomplishments through which performative legitimacy and regime legitimacy are sought than the state is. That is to say, the very nature of the European Union as a new and constructed polity22 means that the intimacy of the links between performance, regime and polity legitimacy is even more palpable than in the case of the state. We have already discussed the historical importance of performance legitimacy, and the fact that there continues to be so much political emphasis upon and controversy over not only the detailed range and profile of EU policies and priorities at any one time, but also the possible articulation of an overall motivating purpose, or ethic, of the Union - whether this be found in ideals such as peace and prosperity,23 in `historical missions' such as enlargement, or in self-consciously proclaimed long-term defining policy orientations such as the Single Market Programme or, more recently, the Tampere initiative on the Area of Freedom, Security and Justice - is testimony to the way in which this performative dimension is closely linked to deep questions of political authority and identity. As regards regime legitimacy, it, too, is important not only as a component of overall legitimacy and as a facilitator of performance legitimacy, but also as a form of political engineering, as a means of fostering, through long-term institutional means, the distinctive features of authority and identity on which the credible claims of the polity qua polity depend. Thus, many shades of opinion, from deliberative democrats24 to consociationalists,25 from `thick' communitarians to `thin' cosmopolitans, approach the design and refinement of the European institutional regime not just as instrument to improve the setting and achievement of performance goals, not just in acknowledgement of the intrinsic worth and legitimating potential of just and democratic institutions, but also as a way of asserting the distinctiveness of the authority profile of the European Union and of coaxing and encouraging the generation of the forms of identity - of common and solidary political awareness and practice - through which a polity becomes self-recognised as a polity.
Thirdly and finally, whereas the state has traditionally figured as an exclusive or - in the increasingly plural configuration of political authority of the contemporary age - at least, dominant polity, the European Union has, from the outset, had to accommodate itself to a plural environment, and, in particular, to the continuing strong claims of the state. That is to say, both at the level of political authority and political identity, the establishment of the European Union as a polity has depended upon a relationship of accommodation with pre-existing state authority and identity claims, and, indeed, with claims to authority and/or identity from other sites, old and new, subnational and supranational. In this sense, the EU is an intrinsically relational polity26 and its claims to legitimacy depend upon this relational dimension being satisfactorily addressed and internalised - upon its authority system being compatible with other authority systems and its identity claims being capable of nesting with other identity claims within the political consciousness of its citizens.27
5 See, for example, D. Beetham and C. Lord, Legitimacy and the European Union, (Harlow: Longman, 1988); R. Bellamy, `The "Right to Have Rights": Citizenship Practice and the Political Constitution of the EU," in R. Bellamy and A. Warleigh (eds) Citizenship and Governance in the European Union, (London: Continuum, 2001); R. Bellamy and D. Castiglione, "Normative Theory and the European Union: Legitimising the Euro-Polity and its Regime," in L. Tragardh (ed) After National Democracy: Rights, Law and Power in the New Europe, (Oxford: Hart, forthcoming); G. de Búrca, "The Quest for Legitimacy in the European Union", (1996) 59 Modern Law Review, 349.
6 See n5 above. In particular, the (crucial, in my view) distinction between regime and polity legitimacy is taken from Bellamy and from Bellamy and Castiglione, although I employ the distinction to rather different effect and cannot do justice to their approach here. As to performance legitimacy, see, especially, Beetham and Lord, ch.4
7 Beetham and Lord, n.5 above, p.94.
8 See, for example, D. N. Chryssochoou, Theorizing European Integration (London: Sage, 2001) ch.4.
9 Bellamy and Castiglione, n.5 above.
10 Ibid.
11 On the pre-Westphalian foundations of the ideas of polity (or polis) and constitutionalism, see, for example, J-E. Lane, Constitutions and Political Theory, (Manchester: Manchester University Press, 1996) chs.1-2.
12 See, for example, N. Walker, "Constitutional Pluralism and Late Sovereignty in the European Union," (EUI, European Forum Working Paper, 2001).
13 N. Walker, "The EU and the WTO: Constitutionalism in a New Key, in G de Búrca and J. Scott, The EU and the WTO: Legal and Constitutional Perspectives, (Oxford: Hart, 2001).
14 See, for example, T. Schilling, "The Autonomy of the Community Legal Order - An Analysis of Possible Foundation," (1996) 37 Harvard International Law Journal, 389.
15 See, for example, A. Moravcsik, The Choice for Europe: Social Purpose and State Power from Messina to Maastricht, (London: UCL Press, 199).
16 For a sophisticated version, see D. Grimm, "Does Europe Need a Constitution?" (1995) 1 European Law Journal.
17 B. Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, (London, Verso, 1991).
18 Walker, n.13 above.
19 K. Deutsch, S. Burrell, R. Kann, M. Lee, M. Lichtermann, F. Loewenheim and R. Van Wagenen, Political Community and the North Atlantic Area, (Princeton: Princeton University Press, 1957) p.36.
20 See M. Keating, Plurinational Democracy: Stateless Nations of the United Kingdom, Spain, Canada and Belgium in a post-Sovereign World (Oxford: OUP, 2001).
21 See, for example, Beetham and Lord, n.5 above, ch.2.
22 See, for example, J. Shaw and A. Wiener, "The Paradox of the European `Polity'", in M. G. Cowles and M. Smith (eds) State of the European union, Volume 5: Risks, Reform, resistance and Revival (Oxford: OUP, 2000).
23 See, for example, J.H.H. Weiler, The Constitution of Europe, (Cambridge, CUP, 1999) chs. 7 and 10.
24 See, for example, J. Habermas, The Post-national Constellation: philosophical essays (Cambridge: Polity, 2001) ch.4; O. Gerstenberg and C.F. Sabel, "Directly-Deliberative Polyarchy: An Institutional Ideal for Europe," in C. Joerges (ed) Good Governance in the European Union (Oxford: OUP, forthcoming).
25 See, for example, Chryssochoou n.8 above, esp. ch.5.
26 Walker n.13 above.
27 Weiler n.23 above, ch.10.