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Jo Shaw, University of Leeds and Antje Wiener, Queen's University of Belfast
Paper for Maria Green Cowles and Mike Smith (eds.), State of the European Union 5: Risks, Reform, Resistance, and Revival, Oxford University Press, 2000 forthcoming.
This chapter focuses on features of the process of European integration which suggest that the European Union (EU) is simultaneously both `near-state' and antithetical to stateness. The centerpiece of the chapter is the paradox of the `European' polity with particular regard to its `stateness'. This paradox consists of a parallel development of two dimensions. One dimension is institutional, the other is theoretical. The institutional dimension can be assessed through studying the process of supra-, trans- and infranational institutionalization, with contrasting conditions of decision-making and legitimacy attaching to the different levels observed (Weiler 1999: Ch. 8). This process generates shared norms, routinized practices, and formalized rules and procedures which are part of the acquis communautaire, i.e. the shared political and legal properties of the EU (Gialdino 1995). As the institution that now carries a strong structuring weight within European integration over the past fifty years, the acquis communautaire (hereafter: acquis) has come to include a number of key elements of state-building processes. It entails, for example, a common market, citizenship, a common monetary policy and currency, and, with the communitariszation of the Schengen acquis, now an increased pooling of sovereignty in relation to the emerging Area of Freedom, Security and Justice. In sum, there is indeed little dispute among students of European integration (EI) that governance beyond the national state is a fact in Europe (Jachtenfuchs 1995). The question is how to characterize and understand this polity.
In turn, the theoretical dimension encompasses a peculiar mismatch between theories and politics of European integration that cannot escape the reference to stateness. A good example is the concept of `integration through law' which has long dominated both legal practices and legal studies in European integration, respectively. That is, while EC law, understood as a body of texts (`the letter of the law') has never made explicit reference to the concept of stateness, what we might term the `spirit of the law' which has guided the generation of the leading constitutional principles of `direct effect' and `supremacy of EU law' is shaped by the touch of stateness even so (Armstrong 1998, Shaw 1996, Capelletti et al 1986). It follows that both dimensions, the institutional and the theoretical, underscore a recurrent, albeit often unintended and rarely rationally debated, reference to the image of the final shape of the EU as something to be kept in mind (Diez 1996). The risk of studying European governance then lies in the continuous revival of the idea of stateness, whether that takes the form of resistance against or reform towards the establishment of statelike patterns. It lies in studying a non-state polity within the frame of stateness, with all its theoretical and methodological implications.
Indeed, the perseverance of the `touch of stateness' is quite impressive in the context of European integration studies. Two examples may suffice to demonstrate the problem. First, stateness is the implicit reference of most work on the condition of `deficits', including deficits of democracy, legitimacy, accountability, equality, and security (Grimm 1995, Dehousse 1995, Grande 1996, Weiler 1999). This discussion of `deficits' implies that, in the EU, many core principles of sovereign modern nation-states (Zürn 1998) are lacking. The language of `deficit' clearly suggests a comparative dimension referring to the political form of the state, and not, for example, to international organizations. It begs the normative response to overcome the deficit (see, critically: Wiener and Della Sala 1997). Not surprisingly, normative theories provide the leading touch of stateness in this respect (Habermas 1992, Bellamy and Castiglione 1999). A second example is provided by the debate about different approaches to European integration. While this debate advanced substantially from juxtaposing neofunctionalism with intergovernmentalism in the 1980s to discussing more differentiated nuances of new institutionalisms in the 1990s (Pollack 1996), the touch of stateness has remained a constant factor, none the less. While the underlying neofunctionalist assumption was that governance would eventually lead to a `Europeanized' superstate (Haas 1964, Lindberg and Scheingold 1970), intergovernmentalists contend that the degree of institutionalization created in the process of European integration, can be explained by studying member state interests and preferences (Moravcsik 1993, 1998). While neofunctionalism thus evokes the image of the (federal) superstate, (liberal) intergovermentalism cannot account for the forming and changing institutional interests beyond states.
This chapter addresses the pitfalls of the often invisible touch of stateness and proposes a methodological perspective with a view to overcoming them. We point out that recent social and legal constructivist approaches to European integration have begun to discuss new ways of assessing the `European' polity. Their specific validity with a view to avoiding stateness, we argue, lies in an ontological shift from a focus on the state towards analysing the impact of norms, identities, language and discourse on politics and practices in the `European' polity. We specifically highlight the important insights gained through analyses of constitutionalism that have begun to set new parameters for the study and characterization of the `European' polity. The argument develops from noting a tension between those formal elements of a `European' constitution or the constitutional framework which have so far evolved, on the one hand, and the abstract ideas about civilised co-existence within polities which are necessarily implicated by the invocation of the term `constitutionalism', on the other. While this tension is particularly interesting, thus far it has remained largely under-researched.
With a view to generating further empirical research, we discuss the emerging link between social and legal norms through the empirical lens of policy practices.2 More specifically, on the basis of studying constitutional discourse and policy-making practices, we propose to trace the emergence of social norms and discuss their potential to materialize. For example, the shared reference to `subsidiarity', or `flexibility' as a guiding rule of constitutional bargaining at intergovernmental conferences (Shaw 1998, Wallace 2000) may, potentially, turn into a legally stipulated rule. In other words, we argue that through the routinization of practices, and/or the institutionalisation of principles, social norms can, potentially, acquire the status of legal norms. We exemplify this argument by reference to the Treaty of Amsterdam. We seek to demonstrate that an example for a case that contributes to challenging the paradox of stateness is provided by the changing meaning of the principle of flexibility from operating as an organizational idea to achieving constitutional status in the Treaty of Amsterdam (Curtin and Dekker 1999, von Bogdandy 1999a, 1999b, Wallace 2000, Leslie 2000). We suggest that asymmetrical solutions such as opting-in/out possibilities emerge as the guiding norm for politics and policy-making in the EU, as well as giving rise to unusual types of legal problematics.
The chapter is organized in four further sections. Section II discusses constructivist approaches in political science and law that offer an ontological focus on ideas, norms and identities. Section III turns to the debate over constitutionalism and constitutional change in the EU as an approach to the paradox of stateness. Section IV refers to an empirical example of a process in which social norms become gradually materialized into legal norms, focusing on the emergent principle of flexibility. In Section V we summarize our findings and reflect these back upon the promise to circumvent the cul-de-sac effect which state-centric approaches have upon the challenge theorizing the `European' polity.
1 Many thanks to Armin von Bogdandy and Damian Chalmers, as well as the editors, for comments on an earlier version.
2 See, for further detailed exposition, A. Wiener, Governance under changing conditions of democracy (provisional title), (Manchester University Press) in preparation.