Jean Monnet Center at NYU School of Law


2. The Promises and Problems of 'European Civil Society'

The promise of a concept of 'European civil society' is that it may help to bridge the gap between society and the structures of transnational governance in a way that is superior to two alternatives. The first alternative is a liberal constitutionalism which seeks to connect individual citizens to European governance through the granting of rights. This has tended to be the legal contribution to theorising European integration3 and it suffers from a number of defects: (1) the connection between transnational governance and society is constructed in terms of the self-interested and atomistic consumption of legal rights rather than offering a more social account of legitimation through active identification with, and support for, the structures which produce legal norms; (2) citizens are more often constructed as market citizens rather than as social or political actors; (3) market citizens may play an active part in the realisation of economic objectives, but otherwise they are passive as regards the setting of the objectives of transnational governance; (4) courts may not be the ideal institutional location for reconciling individual and collective interests; (5) the constitutionalisation of a 'higher' economic law may undermine national democratic processes of collective will-formation. The second alternative bridge might lie in strengthening the national constitutional legitimation of transnational governance. While this has obvious attractions, it is also obvious that asymmetries may appear between Member States in their manner and mode of constitutionalizing EU governance with consequences for the operational activities of the EU. To this extent, the EU must be able to claim a certain constitutional autonomy. Therefore, the issue cannot solely be resolved by retreating into domestic constitutionalism, but instead always remains one of the relationship between levels in a multi-level constitutionalism.4 However, if the appeal to domestic constitutionalism is premised not simply upon a justifiable desire to protect important national social values, but, instead, upon the idea that the demos can only exist within the confines of the nation state, then this renders constitutionalism 'beyond the nation state' a virtual impossibility.

If the EU is caught between an atomised liberal constitutionalism on the one hand, and the enduring presence of the national demos on the other, the appeal of a concept of European civil society lies in the hope that, as a differentiated sphere of the demos, it can provide an intermediating civic sphere to connect society to transnational governance. As Weiler et al have suggested, it may be possible to disentangle the civic from the ethnic, resulting in `contemporaneous membership in a national ethno-cultural demos, and in a supranational civic, value-driven demos,' which are mutually supporting.5 In other words, civil society might be understood as a sphere of more active civic engagement differentiated from the ethnically national demos. While the sphere of European civil society has been traditionally conceptualised within the boundaries of the nation state, with the emergence of transnational governance and transnational organisations operating within the EU, one might also think of a sphere of European civil society in terms of transnational organisations participating in the development of EU governance.

The appeal of a concept of organised European civil society lies in its avoidance of the need for shared values and shared histories to underpin EU governance. Instead, the self-organisation of civil society into associations contributing towards the creation of a European public space of discourse and communication operating within and across different levels of government takes the pluralism of society as its starting point. Thus, instead of looking to liberal projects to connect governance and its legitimation, the alternative may be something more like Paul Craig's civic republican reading of democracy in the EU. For Craig,6

`Civil society, connoting in this context networks, movements etc., which organize to assert interests outside state-based and controlled political institutions, is accorded an important role in the deliberative process. Participatory democracy is thus seen as starting from the bottom up, from "groups of people dedicated to the disinterested search for the public interest in society"'.7

Moreover, free from connotations of ethnic nationalism, European civil society is open to a more plural form of membership than is currently offered by EU citizenship (e.g., the inclusion of non-EU nationals as members of a transnational civil society).

However, the concept of 'European civil society' is open to different interpretations. At its broadest, European civil society would be multi-form, multi-dimensional and multi-level, while narrower versions of the concept would only include some of these elements. By multi-form, I refer to a pluralistic understanding of the forms of civil society moving from the civic participation of the individual (with attention paid to barriers to inclusion within the polity) through loose networks of actors to formalised organisational structures. By multi-dimensional, I mean a European civil society that occupies a number of different roles as regards the production of governance moving from relatively unstructured and ad hoc consultation of civil society actors through more structured participation in the policy-process through to direct roles in the delivery of governance. By multi-level, I mean a concept of European civil society which includes the diverse structures and traditions of national-level civil society organisations together with any transnational structures.

Not only can European civil society be interpreted in different ways, it can be harnessed towards different theoretical projects from liberalism, through civic republicanism, through to more recent 'Third Way' constructions. Each approach has its own implications not only for the role of civil society itself, but also for the role of government. Thus, it becomes clear that the rediscovery of civil society as means of connecting society to structures of governance is open to quite contrasting interpretations, which, in some variants, may have far reaching consequences for the transformation of governance structures themselves.

That reasonable people might differ about the meaning of 'European civil society' is hardly controversial. But the difficulty is deeper than this and goes to the heart of the issue of how to connect societies still rooted in the forms and structures of nation states with a system of transnational governance. Because, it is one thing to seek to bridge the gap between society and transnational governance through a differentiated civic demos rooted in the structures and traditions of national civil society actors (even if they choose to co-operate and organise transnationally). It is another to seek to bridge the gap through transnational structures autonomised from domestic structures which, instead, claim their legitimacy in terms of their transnational functionality and authority. The normative case for a more autonomised transnational civil society is, therefore, more like the case which Craig makes for the Community's inter-institutional balance,8 or which Joerges makes for comitology,9 and lies in the inclusion of a new constituency of voices, interests and expertise within élite transnational governance.

Thus, the reality may be less about European civil society's bridging of the gap between society and governance, and more about its jumping the gap in support of the legitimation of transnational governance through transnational structures. While this is a potentially defensible position, one needs to be clear on two things. First, national civil society actors may be excluded from access to policy-influencing or decision-making networks (a static problem). Secondly, there is a danger that legitimation through transnational civil society cannot make up for what is lost through the effects of transnational governance upon domestic structures of representative and participatory democracy (the dynamic erosion of legitimation). What is lost on the swings is not necessarily made up on the roundabouts.

3 See K. Armstrong, `Legal Integration: Theorizing the Legal Dimension of European Integration' (1998) 36(2) Journal of Common Market Studies, 155, esp. 167-8.

4 For an approach which seeks to construct EU governance within domestic constitutionalism see P. Lindseth, 'Democratic legitimacy and the administrative character of supranationalism' (1999) 99(3) Columbia Law Review 628. For somewhat different discussions of 'multi-level constitutionalism' see I. Pernice, 'Multi-Level Constitutionalism and the Treaty of Amsterdam: Constitution-making revisited?' (1999) 36 Common Market Law Review 703, and K. Armstrong, Regulation, Re-regulation, Deregulation: Problems and Paradoxes of EU Governance (Kogan Page, 2000).

5 See Weiler, Haltern and Mayer, `European Democracy and its Critique' in J. Hayward (ed.) The Crisis of Representation in Europe (Frank Cass, 1995), p 23.

6 P.P. Craig, `The Nature of the Community: Integration, Democracy and Legitimacy' in P.P. Craig and G. de Búrca (eds.), The Evolution of EU Law (Oxford, 1999), p. 41.

7 Ibid, quoting from D. Curtin, Post-national Democracy: The European Union in Search of a Political Philosophy (Kluwer, 1997).

8 Above n 6.

9 Ch. Joerges, `"Good Governance" through Comitology?' in Joerges and Vos (eds.), EU Committees: Social Regulation, Law and Politics (Hart Publishing, 1999).




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