Jean Monnet Center at NYU School of Law


Part I: Laying the Conceptual Foundations

One Definition and Five Implications

First, let us try to define legitimacy in a way that is generic enough to allow us to apply it to the widest possible range of polities.

Legitimacy is a shared expectation among actors in an arrangement of asymmetric power, such that the actions of those who rule are accepted voluntarily by those who are ruled because the latter are convinced that the actions of the former conform to pre-established norms. Put simply, legitimacy converts power into authority - Macht into Herrschaft - and, thereby, simultaneously establishes an obligation to obey and a right to rule.

From this, I draw the following implications:

(1) The basis upon which these norms are pre-established can vary from one arrangement to another - not only from one country or culture to another, but also within a single country/culture according to function or place. While it is often claimed that, in the contemporary context, "democracy" provides the exclusive basis for exercising authority, this denies the possibility (and obvious fact) that particular arrangements within an otherwise democratic polity can be (and often are) successfully legitimated according to other norms.1 It also obscures the fact that "democracy" can be defined normatively and institutionalised historically in such a different fashion that the power relations that are legitimate in one democracy would be regarded as quite illegitimate in another. The "coincidence" that all of the EU members are self-proclaimed democracies, recognize each other as such and require that new members conform to the same institutional pattern, does not eo ipso provide the norms for its legitimation - indeed, well-entrenched differences among its members may actually make it more difficult.

(2) The unit within which relations of sub- and super-ordination are being voluntarily practiced can vary in both time and space. While there is a tendency in the political science literature on legitimacy to accept passively the sovereign national state as the "natural" and "exclusive" site, there is no reason why other (sub- or supra-national) "polities" - provided that they have sufficient autonomy in making and implementing collective decisions - cannot have their own normative basis of authority. In the case of the EU, the problem is compounded by the simultaneous need to legitimate not only what the unit should be, i.e., to define what "Europe" is, but also the regime that should govern it, i.e., what its institutions should be.

(3) The norms must be "shared" by the actors, both those who rule and those who are ruled. This implies, first of all, that they must know who they are and what their respective roles are. It also implies that the exercise of authority is "systemic," i.e., that it is embedded in a collectivity that is sufficiently interdependent and mutually trustful so that disputes over the validity of rules can be (and usually are) resolved by the intervention of third parties within them. Institutions, such as courts, specialize in this "referential" behaviour, but most of the contestation over rules involves less formal interactions within civil society and between firms in which the intervention of outsiders (actual or potential) is sufficient to produce a mutually accepted outcome. The citizens/subjects/victims/ beneficiaries of the EU do not yet know who they are - and not all of them are members of it and, therefore, entitled to participate in its government. Moreover, they remain anchored in relatively independent polities of varying size and power whose roles within EU institutions have yet to be established definitively. Nor have they achieved the level of social interdependence that allows them to rely on informal - "pre-political" and "extra-juridical" - means for resolving disputes legitimately.

(4) The actors involved may be individuals or collectivities of various sorts. The literature conveniently makes the liberal assumption that the unique judges of legitimacy are individual human beings. This allows it to rely heavily on notions of family socialization, "moral sentiment" and personal responsibility as the source of the norms and the mechanism for their enforcement. And this, in turn, tends to lead one to the conclusion that it is only in polities that have previously established a high degree of cultural homogeneity - i.e., nation-states - that legitimate political authority is possible. When, however, one introduces the heterodoxical idea that most of the exchanges in modern political life are between organizations, and, moreover, that these organizations share norms of prudence, legal propriety and "best practice" that transcend individual preferences and even national borders, it then becomes more possible to imagine how a "non-national" and "non-state" polity such as the EU might be able to generate valid and binding decisions. This is not the same thing as to say that it will be easy for it to come up with such norms - given all the caveats introduced above, plus the fact that, in such a "multi-layered" and "poly-centric" arrangement, it may be very difficult to trace the origin and responsibility for them.

(5) The basis for voluntary conformity is presumably normative, not instrumental or strategic. In a legitimate polity, actors agree to obey decisions that they have not supported, which are made by rulers for whom they have not voted. They also agree to do so even if it is not in their (self-assessed) interest to do so - and they are expected to continue to do so even when the effectiveness of the polity is in manifest decline. Needless to say, it will not always be easy to assess this. Rulers can often control the means of communication and distort the flow of information to make it appear as if they were following prescribed norms; the ruled may only be pretending to comply in order to build up a reputation that they can subsequently "cash in" for material or other self-regarding purposes. Conversely, resistance to specific commands - whatever the accompanying rhetoric - may have nothing to do with challenging the legitimacy of the authority that issued them, being just disputes over the performance of individual rulers or agencies. Needless to say, in the case of the EU the compellingness of norms is even more difficult to observe. The intergovernmental nature of its key institutions virtually licenses actors to pursue national interests exclusively - or, at least, to proclaim to their citizens that they are doing so. The confidentiality of its many committees makes it almost impossible to detect when interaction produces a shared norm rather than a strategic compromise or a hegemonic victory. Add to all this, the propensity for national rulers who can no longer "deliver the goods" by themselves to blame the obscure and distant processes of European integration when they have to take unpopular decisions and you have a polity that is bound to appear less legitimate than it is.

One (Interim) Conclusion and Two (Very Important) Implications

From this conceptual analysis, I draw the following conclusion:

If we are to make any sense of the present and future legitimacy of the European Union, we have to reach a consensus concerning the apposite criteria - the operative norms - that actors should apply when establishing their presumably shared expectations about how its authority should be exercised.

[I say "should" because it is abundantly clear that, in the present circumstance, both scholars and actors within the integration process tend to presume an isomorphism between the EU and their respective national polities. This unavoidably leads to the conclusion that the EU suffers from a "democratic deficit."2 And this, in turn, implies that the only way of filling this deficit is to insert "conventional democratic institutions" into the way the EU makes binding decisions, e.g., assert parliamentary sovereignty, institute direct elections for the President of the Commission and, above all, draft and ratify a "federal" constitution.3 It is this interpretation that I wish to contest, although I am aware that the more the EU uses distinctive criteria in the design and evaluation of its institutions, the more difficult it will initially be to convince its citizens that what it is doing is "really" democratic. Nevertheless, this is a political paradox that will have to be tackled - and, like many such paradoxes, it is only by learning from experience that the apparent contradiction is resolved.]

I am taking two things for granted at this point: (1) that the apposite criteria for the legitimation of the EU (whatever they may be) should be "democratic" in some fundamental/foundational sense; and (2) that the individual citizens and collectivities that are members of the EU, now and for the foreseeable future, share a "reasonable pluralism" in the interests and passions that they wish to satisfy through the integration of Europe.

Just a bit of explication of both points:

(1) The meaning and, hence, the institutions and values, of democracy have changed radically over time. Robert Dahl has spoken of several "revolutions" in its past practice (often without its proponents being aware of them) and argued that "democracy can be independently invented and re-invented whenever appropriate conditions exist."4 The European Union is unavoidably part and parcel of these changes. Not only must it reflect transformations in the nature of actors (from individual to collective citizens) and the role of the state (from redistribution to regulation) that are well underway in the `domestic democracies' of its Member States, but it must also recognize and adapt to its uniqueness as a non-national, non-state, multi-level and poly-centric polity that encompasses an unprecedented (for Europe) variety of cultures, languages, memories and habits, and is expected to govern effectively on an unprecedented scale - all this, with very limited human and material resources.

(2) Despite the heterogeneity of its national and sub-national components and, hence, the strong likelihood that major actors will not be "naturally" in agreement on either the identical rules of the game or substantive goals, its members are "reasonably pluralistic," i.e., the range of their differences is limited and they are pre-disposed to bargain, negotiate and deliberate until an agreement is found. To use another expression of Rawls, those who participate in the EU enjoy an "overlapping consensus." 5 Moreover, they understand and accept that the outcome of the process of integration will itself be pluralistic, i.e., it will protect the diversity of experiences rather than attempt to assimilate them into a single "European" culture or identity.

Based on this (interim) conclusion, I am first convinced that it is neither feasible nor desirable to try to democratise the European Union tutto e subito -- completely and immediately.6 Not only would the politicians not know how to do it, but there is also no compelling evidence that Europeans want it. Nothing could be more dangerous for the future of an eventual Euro-democracy than to have it thrust upon a citizenry that is not prepared to exercise it, and that continues to believe its interests and passions are best defended by national, not supranational, democracy.

Moreover, the EU, at this stage in its political development, neither needs, nor is prepared for, a full-scale constitutionalisation of its polity. The timing is simply wrong. In the absence of revolution, coup d'etat, liberation from foreign occupation, defeat or victory in international war, armed conflict between domestic opponents, sustained mobilization of urban populations against the ancien regime and/or major economic collapse, virtually none of its Member States have been able to find the "political opportunity space" for a major overhaul of their ruling institutions.7 The fact that they all (with one exception) have written constitutions and that this is a presumptive sina qua non for enduring democracy indicates that, at some time, this issue will have to be tackled -- if the EU is ever to be democratised definitively -- but not now!

However, as I have explored in a recent book, it may be timely to begin sooner rather than later to experiment with improvements in the quality of embryonic Euro-democracy through what I call "modest reforms" in the way citizenship, representation and decision-making are practiced within the institutions of the European Union.8 Even in the absence of a comprehensive, i.e., constitutional, vision of what the supra-national end-product will look like, specific and incremental steps could be taken to supplement (and not supplant) the mechanisms of accountability that presently exist within its Member States. Since, as seems obvious to me, the rules and practices of an eventual Euro-democracy will have to be quite different from those existing at national level, it is all the more imperative that Europeans act cautiously when experimenting with political arrangements whose configuration will have to be unprecedented, and whose consequences could prove to be unexpected - perhaps, even unfortunate.9/10

I will not enter into the details of the twenty or so "modest (and some not so modest) reforms" that I proposed in this book for the simple reason that I am not convinced that, even in the unlikely event that all of them were to be implemented, their joint impact would succeed in legitimising the EU. Introducing one or another of them au fur et à mesure might improve selected aspects of the regime's capacity to invoke voluntary compliance, but, given the "systemic" aspect that was mentioned above, one should not expect miracles - least of all hic et nunc. For one thing, it would take some time for any of them to produce their intended effects - especially, since several of them are calibrated to take into consideration the pace and extent of Eastern Enlargement. All of them, despite their modesty, entail unforeseeable risks and are likely to generate unintended consequences - indeed, the entire exercise was predicted upon exploiting these political externalities to press gradually and stealthfully toward further democratisation.

The second ("very important') implication is that marginal and attainable improvements in the legitimacy of the European Union are much more likely to come from changes in the admittedly "fuzzy" but innovative practices of governance than from reforms in the much more clearly delineated and conventional institutions of government.

While it may have been revived by the opportunistic manipulations of the World Bank, and may have initially been focused in an over-optimistic fashion on improving the performance of politics in sub-Saharan Africa, use of the concept of governance has spread with astonishing rapidity and is being applied by both academics and practitioners in a very wide range of settings - up to, and including, the European Union, where it is about to become the subject of an official pronouncement, i.e., a "White Paper." Despite the inevitable oversell and vagueness in such a fashionable concept, there must be something to it - or it would not have met with such success. I am convinced that behind all this capaciousness is a distinctive method/mechanism for resolving conflicts and solving problems that reflects some profound characteristics of the exercise of authority that are emerging in almost all contemporary societies and economies -- and, not just in those that are trying to catch up with the more developed ones.

Governance is not a goal in itself, but a means for achieving a variety of goals that are chosen independently by the actors involved and affected. Pace the frequent expression, "good governance," resort to it is no guarantee that these goals will be successfully achieved. It can produce "bad results?" as well as "good results?." Nevertheless, it may be a more appropriate method than the more traditional ones of resorting to public coercion or relying upon private competition. Moreover, it is never applied alone, but always in conjunction with state and market mechanisms. For "governance" is not the same thing as "government," i.e., the utilization of public authority by some subset of elected or (self-)appointed actors, backed by the coercive power of the state and (sometimes) the legitimate support of the citizenry to accomplish collective goals. Nor is it just another euphemism for the "market," i.e., for turning over the distribution of scarce public goods to competition between independent capitalist producers or suppliers. It goes without saying that, if this is the case, the legitimacy of applying governance to resolving conflicts and solving problems will depend upon different principles and operative norms than are used to justify the actions of either governments or markets. It will be my purpose in the remaining portion of this essay to elaborate upon this implication by specifying what these principles and norms might be.

But first a brief excursus into defining "it":

Governance is a method/mechanism for dealing with a broad range of problems/conflicts in which actors regularly arrive at mutually satisfactory and binding decisions by negotiating and deliberating with each other and co-operating in the implementation of these decisions.

Its core rests on horizontal forms of interaction between actors who have conflicting objectives, but who are sufficiently independent of each other so that neither can impose a solution on the other, and yet sufficiently interdependent so that both would lose if no solution were found.11 As we shall see, in modern and modernizing societies the actors involved in governance are usually non-profit, semi-public and, at least, semi-voluntary organizations with leaders and members; and it is the embeddedness of these organizations into something approximating a civil society that is crucial for the success of governance. These organizations do not have to be equal in their size, wealth or capability, but they have to be able to hurt or help each other mutually. Also essential is the notion of regularity. The participating organizations interact not just once to solve a single common problem, but repeatedly and predictably over a period of time so that they learn more about each other's preferences, exchange favours, experience successive compromises, widen the range of their mutual concerns and develop a commitment to the process of governance itself. Here, the code-words tend to be trust and mutual accommodation -- specifically, trust and mutual accommodation between organizations that effectively represent more or less permanent social, cultural, economic or ideological divisions within the society.

Note also that governance is not just about making decisions via deliberation, bargaining and negotiation, but also about implementing policies. Indeed, the longer and more extensively it is practiced, the more the participating organizations develop an on-going interest in this implementation process since they come to derive a good deal of their legitimacy (and material rewards) from the administration of mutually rewarding programmes.

The fact that governance arrangements are typically thought to be "second-best solutions" is a serious impediment to their legitimation. If states and markets worked well -- and worked well together -- there would be no need for governance. It only emerges as an attractive option when there are manifest state failures and/or market failures. It is almost never the initially preferred way of dealing with problems or resolving conflicts. States and markets are much more visible and better justified ways of dealing with social conflicts and economic allocations. Preference for one or the other has changed over time and across issues following what Albert Hirschman has identified as a cycle of "shifting involvements" between public and private goods. Actors, however, are familiar with both and will "naturally" gravitate toward one of them when they are in trouble. Governance arrangements tend to be much less obvious and much more specific in nature. To form one successfully requires both a good deal of "local knowledge" about those affected and, not infrequently, the presence of an outside agent to pay for the initial costs and to provide reassurance -- even coercive backing -- in order to overcome the rational tendency not to contribute. As we shall see, this almost always involves some favourable treatment from public authorities as well as (semi-) voluntary contributions from private individuals or firms. What is novel about the present epoch is that, increasingly, support for governance arrangements has been coming from private, and not just public, actors and from trans- and supra-national sources - and not just from national and sub-national ones. And the European Union has been among the most active and innovative producers of such arrangements.

Whether the EU has been as successful in convincing its citizens that these arrangements are legitimate exercises of its authority is not clear, although one should note the impressive extent to which Member States and mass publics have consented to the "authoritative allocations" of its myriad committees and the decisions of its Court of Justice. It is certainly premature to claim that the EU is a "producer" rather than a "consumer" of legitimacy - depending, as it does so heavily, on the borrowed authority of its Member governments. As David Beetham and Christopher Lord have argued so persuasively, it is the interaction between the different levels of aggregation and identity that reciprocally justifies the process of European integration.12 In such a complex and still contingent polity, it becomes rather difficult to discern who is loaning and who is borrowing legitimacy - and for what purpose.

Moreover, much of what is happening within the EU is more the result of expediency, pragmatic tinkering, the press of time, the diffusion of "best practices," ad hoc and even ad hominem solutions than of shared principles and explicit design. My (untested) presumption is that, if the EU were to elaborate and defend such principles and, then, design its arrangements of governance accordingly, it would improve its legitimacy.

1 Although it would be more accurate to stress that these "other" arrangements based on expertise, legality, personal reputation or just plain effectiveness are themselves embedded in a more encompassing framework of national democratic institutions which, at least potentially, have the power to amend or overrule whatever decisions are made by non-democratic means. This contextual property is sometimes overlooked by enthusiasts for central bank autonomy, independent regulatory agencies, oversight boards, judicial review, and so forth.

2 The evidence usually adduced to "prove" the existence of this deficit is far from convincing (to me). Most of the items cited (e.g., decline in voter turnout in Euro-elections, decline in favourable attitudes toward EU institutions, rising difficulty in ratifying treaties by national referendum, increase in electoral support for extreme nationalist parties) are either also true with regard to "domestic" democratic practices or only tendentially related to European integration. In short, it is quite possible that the alleged "democracy deficit" is as much, or more, national than supra-national!

3 In other words, I agree with William Nelson's observation the that institutions that "look" most democratic in one context, i.e., the national, may not be appropriate at all in a different setting, i.e., the supra-national. Nelson, p. 198. Introducing direct elections for the Euro-Parliament is one good illustration of this. Those whose principal formula for democratising the EU is to increase the powers of this body should reflect on the consequences of this proposal when there are no corresponding parties, constituencies or even consistent platforms at European level.

4 On Democracy (New Haven: Yale University Press, 1998), p. 9.

5 The Treaty of Amsterdam has formalized these common principles (even if they remain rather abstract): liberty, democracy, respect for human rights and rule of law. Member States found (unanimously) in violation of these vague criteria can be suspended from membership. More recently, a detailed "bill of rights" has been drafted and accepted at the Nice Summit, although it was not made legally binding.

6 What I mean by "interim" is that, in the long run, the EU might well acquire the properties of a state and even of a nation - in which case, the deployment of conventional institutions of representation and decision-making and standard notions of citizenship might become much more desirable. However, for the foreseeable future, e.g., 20-25 years, the problem will be to protect and enhance the legitimacy of political institutions that do not have these properties - and this means relying upon novel arrangements and novel norms to justify them.

7 I can only think of one clear case: Switzerland in the early 1870s. It would be interesting to explore this exception, although the fact that this country had a "one-party-dominant-system" (Freisinnige/Radical) at the time must have been an important factor -- and, not one that can be repeated at EU-level.

8 How to Democratise the European Union ... and Why Bother? (Lanham: Rowman & Littlefield, 2000).

9 At this point, I have to enter (briefly) the "essentially contested" field of defining what I believe should be the apposite criteria for democracy in the case of the EU. Elsewhere, with Terry Karl, I have defined democracy in its most generic terms as "a political system in which rulers are held accountable for the their actions in the public domain by citizens, acting indirectly through the competition and co-operation of their representatives." N.B., this definition is not based on any specific institutions or practices in "real-existing" or "self-proclaimed" democracies, and not restricted to any particular level of aggregation. It is not "procedural" but "processual." Nor is it "substantive" in presuming either what the issues are that citizens will hold their rulers accountable for or what results the rulers will have to produce in order to satisfy citizen expectations. It avoids any presumption about the level or type of participation on the part of citizens - just that, whatever it is, it should be equally available to these citizens qua citizens. It does not even stipulate that everyone has the right to participate in all decisions that affect him or her. It focuses on the classical question: quis custodiet ipsos custodes and answers: "the citizens through some form of collective action by their representatives."

10 In their otherwise very instructive book, David Beetham and Christopher Lord do presume that the grounds for legitimising the EU will be "conventional," i.e., similar to, if not identical with, the norms that justify authority in national polities, despite the fact that they are sensitive to the different nature of the emerging Euro-polity. Legitimacy and the European Union (London: Longman, 1998). See, also, the edited volume by Thomas Banchoff and Mitchell P. Smith with the same title, Legitimacy and the European Union (London: Routledge, 1999) where the treatment is even more "conventional".

11 One frequently encounters in the literature that focuses on national or sub-national "governance" the concept of network being used to refer to these stable patterns of horizontal interaction between mutually respecting actors. As long as one keeps in mind that, with modern means of communication, the participants in a network may not even know each other -- and certainly never have met face-to-face - it seems appropriate to extend it to cover transnational and even global arrangements.

12 Op. Cit. fn. x.




This site is part of the Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law, the Academy of European Law and the Robert Schuman Centre for Advanced Studies at the European University Institute.
Questions or comments about this site?