The Evolution of the EU’s Political and Legal Autopoiesis: On the Self-Reference of European Polity
Chapter 6 The concept of polity generally signifies a politically organized society, its form and process of government. It assumes a system of legitimately exercised political power. In modern democratic polity, power circulates between the people, party politics, administration and public opinion communicated through mass media.1 While the principle of popular sovereignty – sovereignty ‘by the people’ – provides the system with democratic legitimacy, political parties struggle to win power by winning a majority of the votes ‘of the people’ and thus form a government administering specific policies ‘for the people’ which can be recursively evaluated by the public, affect political preferences and thus contribute to the future processes of political majority-building. This power circulation does not exist in the European Union. The EU political system circulates power by the self-referential operations of its administrative organization. State organization is missing but alternative forms of governing and processes of decision-making are no less powerful. The absence of two out of Lincoln’s three characteristics of democratic government,2 namely, government ‘of the people’ and ‘by the people’, makes the EU’s political system one which primarily operates ‘for the people’ or, better, ‘for the peoples of the EU’. It is impossible to characterize the Union in common terms of territoriality, government, population and (in case of democratic statehood) popular legitimacy. In the absence of EU democratic government, the complex forms and processes of the Union’s political decision-making are commonly labelled as a system of European governance. Good and efficient governance is considered a major force integrating the emerging European polity despite the absence of EU statehood and democratic government.3 Furthermore, the growing systemic complexity of European political institutions, laws and administrative regulations has led to the creation of new political concepts, metaphors and legal fictions. Their purpose is to grasp internal tensions, structural irritations and systemic paradoxes within the European Union and thus to respond to its recent developments. The Union currently represents the unity of conceptual contradictions. Apart from the concept of divided sovereignty, the slogan ‘widening is deepening’ introduced in the 1990s and the appropriated self-description of the EU as ‘unity in diversity’, political concepts, such as ‘polity without statehood’ and ‘differentiated integration’, have been adopted to describe current operative paradoxes of European politics and law. In the next two chapters, the semantics and structures of the European Union are thus analysed to show both the potential and limits of the concept of sovereignty in post-sovereign society. This chapter describes the emergence of self-referential European politics and law in three separate steps. In the first step, political and legal theory of the EU integration and its paradigmatic changes are analysed vis-à-vis the EU’s legal and political integration and functional differentiation. It especially is highlighted by the Union’s legitimation dilemma and its recent legal reflection in the Lisbon ‘Reform’ Treaty. Summarizing major theoretical debates regarding the European polity, its legal form and governance, the chapter subsequently argues that the general theory of autopoietic social systems synthesizes the temporal, functional and self-referential aspects of European integration and avoids the epistemological trap to identify the particular concept of polity, its organizational restraints and institutional hierarchies with the general concept of society. Although the Union transgresses its nation state segmentation, the notions of statehood and popular sovereignty continue to inform legal and political semantics of the EU and specific responses to the Union’s systemic tensions, such as the policy of differentiated integration legislated by the EU flexibility clauses. Nevertheless, this policy also shows a much more profound social dynamics of differentiation which does not internalize the concept of the European polity as an encompassing metaphor of society but makes it part of self-referential and self-limiting semantics of the functionally differentiated European political system. In the final part of this chapter, the EU political system, therefore, is described as self-referential, internally differentiated between European institutions and Member State governments and functionally differentiated from the system of European law. Since the early stages of European integration in the 1950s,4 normative theoretical debates regarding European integration and the emergence of the European polity have been informed by the theoretical conflict between neofunctionalist5 and intergovernmentalist approaches.6 In general, neofunctionalist political theories assume that European governance will eventually constitute a supranational federalized EU statehood or some alternative supreme form of European political and constitutional integration. In contrast, intergovernmentalist perspectives see European integration continuing to be bound by Member State interests and priorities. Despite many differences, both theoretical approaches consider statehood and state sovereignty7 a driving force of European integration – neofunctionalists as a desired goal of the European federalist imagination and constitution-making and intergovernmentalists as an institutional framework embedded in the nation state, accounting for the scale and style of European political and legal integration. The neofunctionalist paradigm in EU political studies takes European governance as a force of instrumental rationality which can recursively constitute the democratized European polity. The centrality of technocratic bureaucracy and expert knowledge strongly influenced the early stages of European integration and federalist visions of the 1950s.8 Drawing on the power of instrumental reason and pluralist theories of international politics, neofunctionalists believe that different EU agencies, interest groups and corporations can forge links across national boundaries and create political pressure in favour of progressive integration within the Member States.9 The EU institutions and their integration policies are expected to inspire the ‘functionalist spillover’ and further integration demands among relevant interest groups and agencies.10 The neofunctionalist legitimacy of European integration is the one driven by the outcomes of élite-led policies rather than democratic procedures.11 On the other hand, intergovernmentalists insist that one can understand EU integrative dynamics by explaining Member State negotiations rather than referring to the imaginary political projects.12 The intergovernmentalist approach links integration policies to the logic of demand and supply and perceives democratic legitimacy as a problem and political value typical of the nation state. The demand for integration is ‘a function of domestic preference formation’ while the supply is ‘a function of interstate bargaining and interstate strategic interaction’.13 Intergovernmentalism is based on the public choice theory according to which democratically constituted Member States can carry out a cost-benefit calculation whether to accept or reject integration policies. The importance of democratic legitimacy is upheld by preserving the central role of Member States in European integration.14 Disputes between neofunctionalists defending the multilevel governance model and intergovernmentalists arguing in favour of the Member State-centric model of European governance often have a strong political and ideological context and significantly influence EU legislation and policy-making. They commonly perceive the problem of the EU’s legitimation as a central theoretical issue and cling on to normative expectations of the European public and political élites. Different theories of EU integration thus aim at utilizing legitimacy by conforming EU politics and administration to external criteria of public efficiency and/or generally shared values and obligations. For this purpose, normative theories of EU integration reinvent and recycle political semantics of statehood, sovereignty, civil society, public accountability, democratic participation of citizens and/or their absence at EU level. Before analysing EU legal documents and multilevel governance policies, it is necessary to re-emphasize a profound difference between semantics and structures of specific social systems.15 The difference also informs structures and semantics of the EU as a specific kind of autopoietic organization.16 Semantics usually change with a change in social structures but this coeval process is accompanied by many discrepancies and communication noises. In the current EU state of semantic confusion and structural transformation, it is thus of primary importance ‘to account for the semantic contents of the categories that we apply to new and disturbing phenomena in our social reality’.17 In this section, I therefore highlight this close relationship between EU legitimation semantics so strongly disputed by different social and political theories and their structural reflections in the EU legal and political systems. After the ‘system consolidating’ period of the Treaty of Amsterdam (1999), which was preceded by the ‘policy-generating’ Single European Act (1987) and the ‘polity-creating’ Maastricht Treaty of European Union (1993),18 the Union’s constitution-making (2000–05) failed in its reflexive polity-transformation attempts at democratizing the constituent power beyond the Member States.19 Nevertheless, the detailed legalistic frameworks drafted by successive treaties in the 1990s could not avoid addressing the question of whether EU nations have been building a new kind of profoundly democratized European polity.20 The European Commission linked the concept of governance to the new polity emerging within the EU in 1990s European public debates.21 It thus introduced the political themes of who is actually governed by EU governance, how, in whose name and to what end.22 Indeed, it is true that democratic procedures and institutions have been a precondition of EU membership and thus are embedded in nation states. Responding to the Constitutional Treaty’s ratification failure and building on the democratic legitimacy commitment already incorporated in the Treaty of Amsterdam and the Treaty of Nice,23 the current Lisbon Treaty, nevertheless, opens by an explicit proclamation turning the EU’s biggest fear, the democratic legitimacy and its deficit, into a political desire. It directly links the Union’s governance and its efficiency driven ‘legitimacy by outcomes’ to the legitimacy by democratic values and procedures in its preamble in the following words: DESIRING to enhance further the democratic and efficient functioning of the institutions so as to enable them better to carry out, within a single institutional framework, the tasks entrusted to them.24 At the level of general proclamations and principles, the Treaty thus makes the Union considerably more committed to the discourse of democratic legitimation and/or its absence. The legalist language of the EU accommodates the need to democratize representation, political participation, openness and accountability of EU institutions. The legal provisions of the Treaty, therefore, expose the Union much more to the political discourse of democratic legitimation and/or its absence which will be examined in detail in the next chapter. Nevertheless, it already may be stated that the EU operating according to the legal provisions of the Lisbon Treaty is very different from a democratic polity drawing on the principles of democratic will-formation and the majority rule. Its maximum ‘reform effect’ can be the construction of a polity operating on the enhanced principles of democratic representation of views, interests and preferences of citizens of the Union. Instead of its radical democratization, the system of European governance thus continues to be an example of negotiated governance which has been agreed by the national governments of Member States. Negotiated governance and the continuing central role of Member States effectively rules out any chance of building supranational European statehood governed under a constitution. More than three decades ago, even such a strong advocate of European federalism as Leo Tindemans already warned against the utopian nature of European statehood as potentially damaging faith in Europe.25 Instead of drafting a constitutional formula for Europe, which would imitate institutional settings of the modern nation state, the 1975 Tindemans Report on European Union focused on a series of unification efforts in the areas of foreign policy, economic and social policy, fundamental civil rights and institutional governance-driven alternatives of political, momentum-based, ready-made concepts of federal unification. In this context, Tindemans commented two decades later: Much as I would like to see a definitive federal union materialize overnight, I do not believe that it can happen or, at least, not in one sudden, gigantic step. If we were closer to some sort of popular high tide in support for the federalist model in the 1940s and 1950s, we were undoubtedly further away in 1974–5, and we are indisputably yet further away now.26 After the failure of EU constitution-making and the Lisbon Treaty’s polity-building self-constraints, the emphasis on spontaneity in the unification of Europe and the impossibility of ignoring that democratic legitimacy is embedded in the Member States became a lot more significant. European integration has become ever more dependent on democratization of its institutions and EU democratization has become subject of evolution rather than a constitutional leap of faith in the European demos in waiting. These trends imply two crucial questions, namely, how far the Union’s powers and jurisdiction can be extended without questioning the democratic sovereignty of Member States and to what extent effective European governance can expand without the institutional support of democratically legitimate political government. The semantic persistence of statehood, democratic legitimacy and political sovereignty in both official documents and critical theories of EU integration shows persuasive force of the modern state as a concept used by the political system to describe its unity and to make its operations understandable as autonomous and independent of operations of other social systems, such as economy, law and religion.27 Nevertheless, structural complexities of EU supranational and transnational governance should rather warn us against simplistic criticisms of the EU’s non-existent statehood drawing on the notion of political sovereignty. These complexities, however, should equally warn us against naïve parallels between European multilevel governance and the goal of democratic polity-building legitimizing further EU integration. Within the context of private law, Hugh Collins, for instance, persuasively illustrated how the emerging European law structures have been disintegrating national institutions and autonomous structures of political authority and cultural identity. Sceptical about an ‘ever closer Union’ unified by one system of EU law, Collins concludes that the existing theoretical separation between public and private law has lost its explanatory value and is to be replaced by functionalist and contextualist theories of law better responding to the contingent and fragmented European social reality.28 Transgressing normative and semantic limitations of the notions of statehood and constitutional sovereignty, theoretical views of the Union, its governance and polity-building accommodate different perspectives capable of explaining the historical process of the Europeanization of national societies, the growing fragmentation of the EU and the functional differentiation of European politics and law. Evolutionary, constructivist and functional differentiation theories of EU law and politics have recently been emerging to semantically respond to structural changes of the EU and to make the Union understandable in both legal and political terms. Evolutionary metaphors have been playing a significant role in social and political science reflections on European integration for some time. For instance, Martin Westlake introduces the paradigm of evolution theory to describe the spontaneity and the lack of intentionality in the process of European polity-building, constitution-making and legal integration.29 According to his argument, the Union’s constitutionalism is organic and evolutionary and as such may run in both progressive and regressive directions. While nation state constitution-making is typical of particular designs, deliberations and final settlements enacted after public reasoning and democratic decision-making, the European constitutional settlement has never been considered final. Instead, it favours a never-ending process of organically reworking and reinterpreting the Union’s legal framework and existing treaties. According to the evolutionary perspectives,30 European integration is a long-term evolutionary process, drawing on integrative drives but equally respecting existing political limitations and cultural boundaries.31 European political leaders, their actions, discourses, disputes, constitutional proposals and blueprints are not part of a trivial system of rational choices, causes and consequences. The Union is governed by a constant flow of compromises and negotiated decisions. These are often the contingent result of the last-minute ‘pressure-cooker atmosphere’32 of intergovernmental conferences, meetings of the European Council, administrative decisions of the Commission and landmark judgments of the Court. However, mechanisms of the organic evolution of European constitutionalism and polity eventually determine EU deliberations, settlements, decisions, judgments and inter-institutional agreements. These mechanisms are described as ‘blind watchmakers’, momentarily selecting the best-fitting operations and decisions without any future ‘intelligent’ plan, purpose or knowledge of possible consequences.33 Unlike the nation state’s constitutional and political changes, the Union’s changes are more frequent, unintentional and cumbersome. European progressive integration and post-national, constitutionalism-based polity34 are being built by temporary settlements determined by legal restraints and political circumstances at the time, such as the accession of different governments in individual Member States. Thus, the Union evolves organically, but also contingently. Selection processes are cumulative and their contingency translates into the systemic complexity of the evolving European legal and political systems. The fact that the Union falls short of having a state-like engineered political system and designed constitutional settlement raises the question of its political and legal ‘deficits’ in legitimacy, accountability, constitutionality, democracy and so on.35 Among many theoretical elaborations and responses, social constructivist approaches to EU governance and polity claim that the deficit discourse is theoretically flawed because of its continuing reliance on the idea of statehood and the concept of polity as a nation state-based society. Social constructivism is close to the neofunctionalist paradigm despite constructivists’ criticism of the utilitarianism and positivist methodology embraced by neofunctionalists. Some theorists even claim that neofunctionalism is a precursor of constructivist approaches in political theory.36 According to the constructivist view, the EU is more than an intergovernmental regime and constitutes its distinct forms of multilevel governance by transnational policy agents, shared interests and more or less informal administrative procedures and practices.37 This functional framework of the EU creates long-term political and social change in Europe – it leads to the formation of new polity. This polity-building is perceived by constructivists as a process of structuration38 and construction39 of an area of increasing social interaction in which shared legal rules and formal decision-making procedures are inseparable from a multitude of informal common practices, mutual learning processes and the behaviour patterns of social actors.40 For instance, Shaw and Wiener suggest studying the evolution and emergence of EU policy-making practices and their subsequent transformation into legally stipulated rules.41 Methodologically oscillating between theoretical constructivism and socio-legal realism, they analyse the process of transforming the norms of European governance into the EU official legal domain. One example of this is the legal concept of European citizenship which allegedly evolved from an embedded set of EU ideas and policy objectives.42 Other examples can be found in the areas of a common market, fundamental rights, security and justice. The embedded structure of the acquis consists of the social processes (and cultural ideas) that precede legal enactment and stipulation.43 The EU deficit discourse and all its prescriptive connotations can apparently be eliminated if legal concepts are linked to their social environment. Shaw and Wiener define the concept of EU law’s social environment as an area covering rational policy-making as well as social and historical contingencies.44 Their approach belongs to the rich sociological and socio-legal tradition according to which understanding legal concepts means understanding their practical meaning and social or political uses. In the constructivist approach, the governance-driven construction of the European polity is conceptualized as the evolution of social and cultural practices, discourses, identities and patterns and their subsequent internalization by the legal system. The social is gradually reflected and adopted by the legal. Apart from the constructivist perspective, which considers EU law part of the more general system of EU governance, there are other conceptualizations of European law, governance and polity inspired by theories of social differentiation. Drawing on the constructivist distinction of formal rules and informal practices, these approaches define European governance as a system of ‘soft laws’ which is profoundly different from the official acquis as a system of ‘hard laws’.45 According to this view briefly discussed in the first chapter in the context of EU constitutionalization by Juristenrecht of epistemic communities, law is a differentiated social system of official rules, institutional settings and specific forms of communication establishing the difference between legality and illegality. Governance is its social environment which, however, does not generate and inform the content of legal rules. It is based on soft laws which are, in fact, contrasted to the EU official legal system. Governance uses the operations of the legal system but also seeks ‘to overcome the impasses the legal code has on offer’.46 The rule of law is challenged by governance because one of governance’s aims is the de-juridification of political society.47 New modes of governance48 evolve outside the legal system and gradually substitute for the traditional law-mediated and state-controlled modes of modern politics. Constitutionalism becomes reflective of this self-regulatory capacity of new European governance.49 These and many other views are common to both constructivist and differentiation theories of European governance and law. However, unlike the constructivist approaches which treat the difference between European official ‘hard’ legality and informal ‘soft law’-based governance in terms of precedence and embeddedness, soft/hard law differentiation approaches oppose governance to law. Governance and law are considered to be systems coevally emerging at the level of European society – the latter using legality as its medium and the former using the specific medium of administrative efficiency. Soft laws involve administrative decrees and practices that are examples of the increasing bureaucratization of European society and its stabilization by procedural legitimation.50 These decrees emanate from the comitology-based51 European offices and the decisions of their officials whose legitimacy cannot be formulated in terms of democratic power but only redefined within the context of the EU’s operative, purpose-oriented administration.52 EU governance by comitology and soft laws draws on legitimation by objectives – it is expected to be ‘good governance’ in terms of its efficiency and accountability.53 Soft laws are instruments that ‘may provide for the necessary flexibility and may help to cope with political realities’54 of the Union. They are used instead of EU legislation as a means of differentiating the legal instruments of the EU and thus of contributing to the effectiveness of EU institutions. In other words, EU soft laws have a ‘para-law’ function55 of interpretative and application techniques of officially legislated laws. They are not part of the internal operations of the EU legal system despite their support of particular instructions and recommendations.56 Soft laws do not have any legal justification and belong to the administrative mode of political communication. They are steering instruments of both ‘pre-law’ and ‘post-law’ functions57 highlighting structural irritations between European law and politics. EU soft laws consequently turn out to be stabilizing mechanisms of the increasingly differentiated EU legal and political systems because they provide a minimum unity in the application of EU rule of law.58 Brief comments on recent theoretical approaches to European integration and polity-building show the need to elaborate and interconnect systematically the evolution, construction and differentiation of the European Union. In other words, time, environment and the self–reference of European integration have become defining topics in European legal and political studies. Furthermore, the notion of state law has been gradually replaced by various concepts of societal law which accommodate legal pluralistic views discussed in the fourth chapter and appreciate differences and the presence of more than one legal order in a social field.59 As Roger Cotterrell remarked: ‘[I]n more recent times, legal pluralism has often been invoked in socio-legal studies of Europe. … It may be that Europe is now a particularly important laboratory in which the reshaping of the very idea of law is taking place’.60
The Evolution of the EU’s Political and Legal Autopoiesis: On the Self-Reference of European Polity
Between Neofunctionalist and Intergovernmentalist Debates: the European Polity, its Theoretical Conceptualizations and Legitimacy
EU Legal and Political Structures: Preliminary Remarks on the Lisbon Treaty and the EU’s Legitimacy
Beyond Statehood: Social Constructivism and Functional Differentiation of the EU
A: Evolutionary Perspectives
B: Constructivist Perspectives
C: Differentiation Perspectives
From Evolutionary and Constructivist Approaches to the Autopoietic Social Systems Theory of the EU