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Normative Political Theory and the European Union1

The French and Dutch referendum rejections of the Constitutional Treaty on Europe again

brought issues of the EUs legitimacy and identity to the forefront of political debate.

1

Does

the EU suffer from legitimacy deficits? If so, what are their alleged symptoms, diagnosis and

prescriptions? Is there, and should there be, a European Identity? Must Europeans share acore of values, traditions and rights and should that requirement deny Turkey membership?

The express public concern in Europe for these issues of normative political theory

underscore the value of such research both for doing and for understanding politics. This

academic subdiscipline centrally seeks to evaluate the legitimacy of institutions and policies,

and scrutinizes both the relevant standards, and the soundness of their normative grounds. The

salience of such issues of normative political theory in the current political debate confirms a

recognizable pattern: Perceived political crises increase the demand, supply and impact of

normative political theory. The insights of John Locke, Jean-Jacques Rousseau, Immanuel

Kant, Mary Wollstonecraft, John Stuart Mill, Karl Marx, John Rawls, Jrgen Habermas and

Susan Okin and others arose from, and informed, the political crises of the day.

Consider the alleged legitimacy deficit of the European Union. Worries about a democratic

deficit did not emerge in response to the Constitutional Treaty. Indeed, the reverse may be

argued: that concerns about such deficits added fuel to the calls for a constitution for the EU.

Popular disquiet had already gained political salience in response to the contentious

Maastricht Treaty ratification process. And such reactions were in line with the predictions of

some scholars, who had warned of domestic backlashes in response to European integration

(e.g. Keohane and Hoffmann 1991, 29).

What is at stake for the EU, and for other subdisciplines?

For some political theorists, legitimacy is centrally a matter of whether citizens have trust inthe future compliance of other citizens and authorities, with institutions they believe to be

normatively legitimate. Such trustworthiness in institutions and fellow citizens seems

necessary for the long term support for the multi-level political order, and for authorities

ability to govern. Disillusioned citizenry may fall prey to populist demagogues, with

consequences all too familiar on this continent. Perhaps more likely, a general loss of political

trust may also threaten a wide variety of institutions and practices both at the domestic and

European level. Normative political theory may contribute decisively in promoting such long

term stability:

in so far as political philosophy does seek to persuade members

of a system of the existence of a verifiable objective common

good, it does serve, with respect to its possible politicalconsequences, as a response that may aid in the growth of

diffuse support. (Easton 1965, 319 fn 3)

The normative legitimacy of the EU, and the public perception of such legitimacy, is also

relevant for other research on European integration. For instance, some of these issues inform

and are expressed by public opinion and political culture, which are crucial variables in

several theories of European integration (Sinnott 1995, 24).

This review presents some of the central approaches and research issues of the political theory

of the European Union. The normative turn in EU studies (Bellamy and Castiglione 2003)

is evident in several research topics addressed by normative political theorists. Section 1 gives

1Approximately as printed inHandbook of European Union Politics. K. E. Jorgensen, M. A. Pollack &B.

Rosamund (eds). London, Sage: 317-335.


2/22Electronic copy available at: http://ssrn.com/abstract=1704462

060224 [email protected] - 2

a brief overview. Some of the highlights of the long, though meagre, pedigree of this field are

sketched in section 2, and the more recent history is sketched in section 3. Popular and legal

conflicts strengthened the claim of many politicians and scholars that the European Union

suffered from a legitimacy deficit in need of resolution. Section 4 dissolves this apparent

consensus by exposing experts different accounts of symptoms, diagnoses and prescriptions

with regard to this deficit. This section also illustrates how normative political theory engageswith other subdisciplines of political science. Section 5 seeks to provide a taxonomy of

concepts of legitimacy, institutional mechanisms of legitimation, and objects of legitimacy.

Section 6 combines several of these disjointed insights into a somewhat unified perspective. It

incorporates empirical concepts of legitimacy as compliance in an account of citizens

political obligation to obey normatively legitimate political orders. Several concepts and

mechanisms of legitimacy address the assurance problems that conditional compliers face

under complex structures of interdependence. These challenges are likely to increase with

European integration, and merit careful study. Section 7 concludes with a sketch of some

current normative research topics about the European Union. I shall suggest that several

issues require scholars to rethink fundamental concepts and normative standards of the

subdiscipline of normative political theory.

1 Some topics in the Political Theory of the EUAt first glance it may seem that political theory and European integration are hardly on

speaking terms. For instance, the SageHandbook of Political Theory(Gaus and Kukathas

2004) makes no mention of the EU. Yet European integration raises profound issues of

political theory, and has occasioned much political theory research.

One central topic is the implications of European integration for concepts such as the stateandsovereignty. Europe is a prime site for changes to the institution of sovereign statehood.

Final domestic legal authority and immunity from outside authorities have become less

effective tools for effective control within the territory of each state, so governments have

pooled some legal and political controls in order to achieve certain common objectives

(Keohane 1995; Krasner 1999). How are we to assess such profound transformations of

sovereignty, from a defining characteristic of a state to a bargaining chip? What are the

normative implications if member states of the EU are no longer states in the received sense,

or if the EU has itself taken on state-like features? Must, for instance, the EU be defended and

assessed by similar standards of legitimacy as sovereign states? (MacCormick 1999).

Another topic of concern has been the basic formof the European political order: Should this

polity be regarded mainly as a confederal arrangement, or federal, or with a network

structure? Or is the only empirically and normatively defensible solution to regard it as apolitical order sui generis for now or for ever? The Constitutional Treaty would remove

some obscurities by placing some legal competences more clearly with Member States or

with the Union a move toward a federal order by some accounts (Elazar 1987, Norman

1994, Kymlicka 1995, Choudhry 2001, Follesdal 2001). What are we to make of allocating

the competences according to a principle of Subsidiarity (Follesdal 1998b)?

The proper values and objectivesthat should or may be pursued by Europeans remain

important research task for normative political theory. The Constitutional Treaty identifies the

central values of the Union, including

respect for human dignity, freedom, democracy, equality, therule of law and respect for human rights, including the rights of
mailto:[email protected]:[email protected]:[email protected]


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persons belonging to minorities. These values are common to

the Member States in a society in which pluralism, non-

discrimination, tolerance, justice, solidarity and equality

between women and men prevail. (Art I-2).

Article 3 of the Constitutional Treaty goes on to identify the objectives of the Union,

including the promotion of peace, its values and the well-being of its peoples. It shall alsopromote social justice and protection, economic, social and territorial cohesion, and

solidarity among Member States. whilst respecting Europes rich cultural and linguistic

diversity. Much recent work by normative theorists addresses these various values and their

relative weight: Is (further) integration necessary for peace? Should the EU be a counterforce

to US military hegemony (Habermas and Derrida 2003)? What sort of freedom does and

should the EU aim to promote (Dobson 2004)?

Another important normative issue is distributive justice. Given the objective of social justice

and the frequent references to theEuropean Social Model, how should European

institutions distribute benefits and burdens among Europeans, and how should such decisions

be made? To equalize living standards would entail politically unacceptable costs, since the

newest member states GNP per capita was only 35 to 74 per cent of the EU average in 2002

(Eurostat). May more economic inequality be defended within a multi-level European

political order than within a unified state, consistent with respecting the equal dignity of all

European citizens?

Calls for aEuropean identitymay be more urgent insofar as a legitimate European order

requires distribution and redistribution across Member State borders. Must Europeans share a

nationality and would this include a common culture (Follesdal 2000)? Would a shared

thin political culture suffice for general support and compliance, even if it only includes the

constitution, or its values (Habermas 1992)? Many hold that citizens of multi-national federalorders need a shared overarching loyalty for reasons of stability (Stepan 1999, 33). Can this

common ground be maintained by carefully crafted institutions (Scharpf 1997a, 20), or must

Europeans also share further, exclusive, values and objectives? The content of such a shared

loyalty remains contested, as witnessed in the discussions concerning theBorders of Europe

especially with regard to Turkeys long-standing application: who are Europeans, and what

normative commitments must unite them?

2 Some HistorySeveral recent contributions to the political theory of the European Union refer back to early

philosophers who urged European integration. Their central concern was to find arrangements

to end wars on that troubled continent.

Many18thand 19th century theorists recommended confederal or federal arrangements. The

1713 Peace Plan of Abb Charles de Saint-Pierre (1658-1743) would allow intervention to

force states to join an established confederation and to quell rebellions. Jean-Jacques

Rousseau (1712-1778) presented and critiqued Saint-Pierres proposal. His altertnative

included several conditions: all major power must be member, the joint legislation must be

binding, the joint forces must be stronger than any single state, and secession must be illegal.

He agreed with Saint-Pierre that unanimity would have to be required for changes to the

agreement. David Humes (1711-1776) notion of Commonwealth has recently been revived

for the EU (MacCormick 1999, 143). In "Idea of a Perfect Commonwealth" (1752) Hume

recommended a federal arrangement for deliberation of laws that would involve both sub-unit

and central legislatures. Sub-units should enjoy several powers and partake in central


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decisions, but their laws and court judgments can always be overruled by the central bodies.

Such a geographically large system would do better than small cities to prevent decisions

based on intrigue, prejudice or passion against the public interest.

Immanuel Kant (1724-1804) defended a confederation for peace among free states in On

Perpetual Peace(1796). These thoughts have been revived and further developed by JrgenHabermas (Habermas 1998) and others. Kant argued for a confederation rather than a treaty or

an international state: "merely to preserve and secure the freedom of each state in itself, along

with that of the other confederated states, although this does not mean that they need to

submit to public laws and to a coercive power which enforces them, as do men in a state of

nature." John Stuart Mill (1806-1873) may also have had Europe in mind when he

recommended federations among "portions of mankind" not disposed to live under a common

government, to prevent wars among themselves and protect against aggression. He would also

allow the center sufficient powers so as to ensure all benefits of union -- including powers to

prevent frontier duties to facilitate commerce (Mill [1861] 1958, ch. 17).

Several scholars of the mid 20th century were remarkably clear sighted with regard toEuropean integration. Their explanations of integration may also help us understand the

relative absence of normative theorists interest until popular protests emerged. Ernst Haas, in

1958, defined political integration as a process that leads to political community among

political groups, who show more loyalty to their central political institutions than to any

other political authority, in a specific period of time and in a definable geographic space.

(Haas 1958, 5). Scholars such as Stanley Hoffmann and Robert Keohane came to endorse

Haas claim that a central decision making process of the European Community is

supranationality, a style of accommodation in which the participants refrain from

unconditionally vetoing proposals and instead seek to attain agreement by means of

compromises upgrading common interests." (Keohane and Hoffmann 1991, 15).

Haas also argued that the study of elites should take pride of place since the general

population was either indifferent or ineffectual, and European integration only needed support

from political elites. David Easton and others followed suit (Easton 1965). Leon Lindberg and

S. A. Scheingold even claimed this as an example of what V. O. Key had coined a

permissive consensus in foreign policy, where the public defers to elites and experts

decisions (Lindberg and Scheingold 1970, Key Jr. 1961, 32). The reactions to the Maastricht

Treaty challenged this assumption of popular albeit tacit consent, and may help explain why

more normative political theorists turned to the issues of European integration.

3 The Maastricht Treaty: The end of Popular and LegalConsensusThe plight of the Constitutional Treaty is not the first time that popular dissatisfaction

replaces permissive consensus about the speed or direction of European integration. Walter

Hallstein, the first President of the Commission of the European Economic Community,

warned as early as 1969 that public support would be necessary in the long run otherwise

"even those parts, which are already set up, could be jeopardized" (Papcke 1992 in Green

1999).

In 1991-92, negative responses to the Treaty on European Union agreed in Maastricht

questioned the presumption of broad tacit consent. Referendums on the Maastricht Treaty in

Denmark and France caused wide ranging public debates and elite dissent concerning the

proper ends and institutions of the European Communities. The treaty was rejected at a

Danish referendum by a margin of 51-49 per cent in 1992, only to be accepted a year later


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4 Legitimacy Deficit? - Symptoms, Diagnoses and CuresAlleged symptoms of a legitimacy deficit include on the one hand empirical findings

regarding popular attitudes toward the EU to determine the extent of political community in

Haass sense, and on the other hand normative assessments of its institutions. The symptoms

range from Eurobarometer data on support for the existence of the European Community and

of ones own country membership in it; mistrust of other Europeans and EU institutions(Norris 1999a); variable implementation or non-compliance with Union directives;

disparities between elite and public support for membership; declining voter turnout for

European Parliament elections (Sbragia 1999); to lack of parliamentary control of executive

bodies at the EU level.

Some research on legitimacy in general tries to combine empirical and normative approaches

(Barker 2001, 8). This is also true of research specifically on the legitimacy of the EU.

Christopher Lord and David Beetham argue that the same normative standards of legitimacy

we know from liberal democratic states should also apply to the EU, its complexity and novel

institutions notwithstanding (Lord and Beetham 2001). The EU has clearly fallen short of

standards such as voter accountability and prominent human rights safeguards. Value

dilemmas such as those between efficiency and accountability will not be removed but can at

most be displaced.

These diagnoses of a legitimacy deficit have been contested. Some question the symptoms.

Public opinion polls showed falling support for European integration in the 1990s, but it is

still highly in favour of European integration. Low and falling turnout at European Parliament

elections might not stem from wariness toward integration, but rather be due to lack of

attention to European issues by political parties that instead tend to focus on domestic issues

and national elections. The public is led to regard European issues and European elections as

second-order with less salience than national elections. National party elites even seem tocollude to suppress debates about European level choices of policy and institutions, to avoid

internal splits on the divisive issues of European integration (Van der Eijk and Franklin

1996).

Some scholars argue that the EU does not suffer from a legitimacy deficit, democratic or

otherwise (Moravcsik 2002; Majone 1998a; but see Follesdal and Hix 2006). Even those who

believe there is a legitimacy crisis diverge on their diagnoses. Some point to the lack of

procedural input legitimation due to citizens lack of influence and control. Others may

lament the lack of output legitimation due to mismatches between citizens preferences and

politicians delivery; or lack of political party articulation and contestation of central EU-level

policies and matters of institutional design (Van der Eijk and Franklin 1996; Schmitter 2000;Follesdal and Hix 2006). Still others hold that one of the main problems is that European

integration creates a legitimacy deficit within Member States who are no longer permitted or

able to meet popular demands (Scharpf 1999). A further understanding of legitimacy concerns

the self-legitimation by governments who make claims to authority addressed as much to

themselves as to others, that they are justified in their rule. On this perspective, a legitimation

deficit arises because the government of the EU such as the Commission legitimates itself

inwardly in ways that cannot be sustained externally toward its subjects, given secrecy and

lack of accountability (Barker 2001).

Some analysts are optimistic concerning the prognosis. Some warn against fixing something

that aint broke (Weiler 2001), while others hold that only a European superstate can solvethe democratic deficit (Sieberson 2004). Some trust alleged sightings of legitimizing


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deliberation in Comitology, the procedures for executing secondary legislation by

committees of the European Commission where Member States are represented. Others worry

about the legitimacy of these extremely complex procedures with skewed representation

(Joerges 1999 vs Wessels 1999). Some recommend that the EU focus on its role as a

regulatory state, whose non-democratic independence pre-commits governments and hence

bolsters the credibility of member states (Majone 1998a). Others fear that lack of commonlanguage, media or public discussions among the European citizenry without a shared identity

or functioning political parties are crucial flaws, but disagree on the prospects of speedy

improvements (Grimm 1995, Abromeit 1998, 32; Habermas [95] 1998).

No wonder that reflective scholars not to mention politicians and civil servants - disagree

about prescribed medications. Should there be more or fewer arenas of normatively salient

and politically efficacious deliberation? Should there now be a written Constitution

simplifying the structures of decision-making with a strengthened legal standing for the

Charter on Fundamental Rights or not? (Skach 2005)? Do Member States need more

discretion through the Open Method of Coordination, or a more efficient Commission

securing the European interest over the conflicting national interests? Some suggeststrengthening the European Parliament, others seek a stronger role for national parliaments

(Neunreither 1994).

For a better grasp of the issues, options and areas of agreement and disagreement it may help

to draw some distinctions. I shall suggest that different concepts of legitimacysupport

different, mutually incompatible prescriptions and proscriptions about institutional objectsand how they can secure legitimation.

5 Concepts, Means and Objects of Legitimacy and LegitimationThe label legitimacy deficit covers a broad range of issues, giving rise to different

taxonomies (Easton 1965; Beetham 1991; Laffan 1996; Jachtenfuchs, Diez, and Jung 1998;

Beetham and Lord 1998; Norris 1999a; Barker 2001; Lord and Magnette 2004).

The literature seems to use four different fundamental conceptsof what legitimacy is about, at

least four institutional meansof legitimation for expressing or achieving such legitimacy,

regarding at least six different objectsof legitimacy at varying levels of generality (Easton

1965; Norris 1999a).

We may say that laws or authorities are legally legitimateinsofar as they are enacted and

exercised in accordance with constitutional rules and appropriate procedures (Weiler 1991,

Weiler 1995; Wallace 1993; Lenaerts and Desomer 2002). Laws or authorities are socially

legitimateif the subjects actually abide by them and are so disposed. The EUs legitimacy isalso sometimes treated as a matter of problem solving: Does the EU identify and implement

solutions that actually secure certain goals otherwise unattainable? Finally, institutions are

normatively legitimateinsofar as they can be justified to the people living under them, and

impose a moral duty on them to comply (Michelman 2000; Rawls 1993; Follesdal 1998a;

Lehning 1997). Normative theorists often take various forms of normative legitimacyto be

fundamental, but overlook the other aspects at their peril. The four forms are interrelated,

often compatible, and can be mutually re-enforcing. Simplerules and procedures may make it

easier to determine the legality, compliance and justifiability of the EU (Magnette 2001).

Legal legitimacy, e.g. in the form of constitutionalism and the rule of law is often regarded as

a necessary condition of the justifiability of a political order. On its own, general compliance

is insufficient for normative legitimacy, since people may comply with unjust rule solely fromfear of sanctions, lack of alternatives or unreflective habit. Yet compliance often requires that


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- thepolitical community: the set of individuals who participate in and maintain common

decision-making processes. Questions include whether there is a European demos, and

whether it should include Turkish citizens. The legitimacy at stake here is typically

normative.

There are important interconnections between the various concepts of legitimacy andlegitimation regarding these six objects.

Regarding social legitimacyin the form of political support, Easton notes the importance of

diffuse institutional, regime and community support to ensure specific support - and

presumably compliance with - particular decision and authorities (Norris 1999b, 264; Luhman

1969). Diffuse support for the regime, in the form of an affective orientation to it as

normatively legitimate, may arise either from below or from above: from acceptance of

particular incumbents, or from the legitimating ideologies of the regime when it is seen to

regularly yield output consistent with the regime objectives (Easton 1965, 290) Political

theory about normative legitimacy may thus contribute to such diffuse support for the regime.

The different concepts of legitimacy and legitimation combined with an awareness of thesedifferent levels, can provide alternative, possibly complementary frames for understanding

the legitimacy challenges facing the EU. European integration and expansion may put both

diffuse and specific support at risk. Support for the regime as a whole is not forthcoming

from below witness the popular dissatisfaction with the Constitutional Treaty, especially

in France and the Netherlands. Nor is there general agreement about the regime values and

objectives of the EU nor about whether the Unions outcome achieves those objectives

reasonably well.

Unfortunately, different frames lead to different, mutually incompatible recommendations

for institutional changes and the extent of integration (Kohler-Koch 2000). For instance,

creative problem-solving efficiency, democracy and constitutionalism may conflict, even in

principle (Elster and Slagstad 1988; Naurin 2004; Lindberg and Scheingold 1970, 269).

Some suggest sector-specific resolutions that vary between the Common Foreign and Security

Policy (CFSP) and monetary policies (Lord and Magnette 2004, 190; Smismans 2004). Yet

why should the sectors be legitimated in these different ways? Another approach seeks mutual

adjustment of the four suggested concepts of legitimacy, and modify arrangements for

legitimation according to the popular or party support for various concepts (Jachtenfuchs,

Diez, and Jung 1998). But why should such popularity be decisive, instead of considering the

best reasons for some conceptions over others?

Normative theorists pursue several different strategies of reasoned reconciliation (Barker2001). Some deny that problem-solving or compliance are plausible concepts of

legitimation, and instead hold that normative legitimacy is fundamental. It is still

appropriate to consider when, if at all, problem-solving and compliance are normatively

relevant for legitimacy. Some argue that since the EU is sui generis as a political order,

democratic accountability is less appropriate than non-majoritarian and post-parliamentary

standards and models of accountability (Majone 1994, Andersen and Burns 1996, Hritier

1999). In this vein some see EU phenomena such as comitology as embryonic arenas for

deliberative politics (Joerges 1999, 311).

The tradition of federalism suggests that the EU share many features with other federal

arrangements all of which are sui generis. So neither complexity nor uniqueness rendersstandard normative principles inappropriate (Beetham and Lord 1998). Still, the complexity


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and multi-level nature of the EU forces us to reconsider the reasons for requiring democratic

accountability through elections. Perhaps we must look for functional equivalents.

A detailed account that brings together all relevant concepts, means and objects of legitimacy

and legitimation in ways that resolve all tensions is beyond the scope of these reflections, -

and beyond the scope of political theory. Still, we may benefit from an account that can guide

discussions concerning trade-offs, scope and institutional design, by identifying some of thecentral arguments and appropriate considerations.

6 Legitimacy and TrustworthinessIn the following I sketch one such perspective on legitimacy. I suggest that we should

distinguish between the normative legitimacy of a political order or regime, and the more

demanding conditions for when citizens have a political obligation to abide by such rules and

commands. The latter requires more than that the rules are normatively legitimate. Citizens

have a political obligation only if such rules are also actually generally complied with.

On this account, a normative duty to obey political commands requires firstly, that the

commands, rulers and regime are normatively legitimate, and secondly, that citizens also havereason to believe this, and have reason to trust in the future compliance of other citizens and

authorities with such commands and regimes. I shall argue that all four concepts of legitimacy

and the institutional arrangements of legitimation can enhance political trust and

trustworthiness in a normatively legitimate EU, among contingent compliers.

Citizens have such political obligations primarily when the rules are legitimate, and they are

generally complied with. That is, the rules must be part of an institutionin the sense of a

social practice according to publicly known formal and informal rules. That is: an institution

exists when its rules specifying offices, rights, powers etc. are regularly acted on, and this is

public knowledge (Rawls 1971, 55-56; North 1990). An institutionalist normative political

theory takes as its central subject matter such institutions (Weale 1999, 20pp).For citizens to have a political obligation, then, they must have good reason to believe that the

normatively legitimate rules are also generally complied with by others. This requires trust

and trustworthiness.

Such trustworthiness in institutions and fellow citizens seems necessary for the long term

support for the multi-level political order, and for authorities ability to govern. Long-term

support for the EU requires not only present compliance and support, but also long term trust

in the general compliance of others both citizens and officials - and a shared acceptance of

the legality and normative legitimacy of the regime. Normative political theory may thus

contribute decisively in promoting long term stability. Citizens and authorities publicly

shared beliefs about normative legitimacyare central at several points to ensure trust. But allfour concepts of legitimacy, duly circumscribed, may serve to provide assurance among

contingent compliers.

The need for trust and trustworthiness arises under circumstances of complex mutual

dependence, where the regular co-operation by each depends on their conscious or habitual

expectation of the regular co-operation of others. Trust and trustworthiness have become

increasingly important among increasingly interdependent Europeans committed to mutual

recognition of Member States regulations, and subject to Qualified Majority Voting where

majorities and minorities must be trusted to restrain themselves in the long term.

The truster must believe that it is in the interest of the trusted to act according to the shared

expectations. Such interests may be of several kinds, bolstered by institutions. The trusted canact out of self interest within institutions that sanction misbehaviour. The trusted can be


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known to act from a sense of appropriateness such that only certain actions seem open to her

choice. Or the trusted person can be known to be other-regarding, with concern for the

trusters well-being. One source of such trust has often been assumed to be a thick sense of

collective identity which is absent among Europeans. This leads some to warn about the

premature introduction of majority rule (Scharpf 1999, 9). Others observe that state building

has sometimes preceded such national identities, and recall that political parties often haveserved such important integrating functions (Lipset and Rokkan 1967, Chambers 1963).

Another important motivation based on concern for others is found among contingent

compliers. They are prepared to comply with common, fair rules as long as they believe that

others do so as well. They may for instance be motivated by what John Rawls called aDuty of

Justice:

that they will comply with fair practices that exist and apply to

them when they believe that the relevant others likewise do

their part (Rawls 1971, 336)

The theory of games explain how institutions may provide such assurance of general

compliance by mixes of positive laws, transparency, shared practices, and socialization. These

arrangements reduce the risks of, or suspicion of, others defection, for instance by restricting

the scope of valid majority rule by human rights. Institutions can also provide public

mechanisms of socialising to certain preferences (Taylor 1987; Scharpf 1997b; Rothstein

1998; Levi 1998; Goodin 1992).

Acontingentcomplier must believe that the policies and institutions in question arenormatively legitimate, and that most others comply. The four different concepts of

legitimacy discussed above play important roles. A plausiblepublic political theoryshould

defend the objectives and other normative standards of the political order, such as democracy,

subsidiarity, solidarity, and human rights. The institutions should be simple and transparent

enough for citizens to comprehend and assess them. The institutions should be effective andefficientin the sense of actually producing the normatively desired effects. The belief that

most other actors will comply requires not only the widespread belief that a large proportion

of individuals actually complies. A contingentcomplier must also have reason to regard the

futurecompliance of sufficiently many others as highly probable. This is why politicians and

academics may be right to worry about the long term consequences of an apparent

legitimacy deficit in the form of low levels of public support for institutions, policies and

authorities. Various acts of legitimation by the government officials and by citizens may

increase such support and trust. Institutions may contribute to such beliefs about future

general compliance in several ways.

Educational systems and political parties can be known to socialize individuals to becontingentcompliers with something like a duty of justice (Levi 1998; McKay 2001).

Institutions can also boost expectations of other contingent compliers future compliance,

when the rules are seen to secure the intended, fair output, and cannot easily be abused

(Rothstein 1998). Institutions that actually deliver according to their stated aims provide

problem-solving legitimacy in the form of output legitimacy (Scharpf 1999). Institutions

can also impose sanctions that modify citizens incentives, to assure compliers that they will

not be suckers:

government coercive capacity assures potentially supportive

citizens that there will, in fact, be relative equality of sacrifice,

[and] governmental institutions contribute to contingent

consent.


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(Levi 1998, 26; cf. Schmitter 2004)

Institutions may provide assurance even in the absence of formal sanctions when they monitor

or report general compliance, or facilitate such reporting. These roles are enhanced by

simplification and democratisation of EU institutions, and by enhanced transparency about

their workings (Dehousse 1999, Hritier 1999).

To see some implications of this account, consider one of the alleged central tensions of the

EU, between the objectives of effective and creative problem solving on the one hand, and

transparency and democratic accountability on the other. We must pay close attention to the

normative reasons for preferring democracy over other forms of governance in general and

then consider whether these reasons also hold for the EU.

One such argument may appeal to efficiency. But when comparing democratic arrangements

to others on grounds of efficiency we cannot rely only on singular policy outcomes. We must

know whether the alternative arrangements have mechanisms that will reliably continue to

ensure acceptable outcomes in ways that provide crucial trustworthiness. One such

mechanism essential to democracy is institutional design that allows an opposition (Dahl

1971). Party competition is crucial for opinion formation, informed policy choice and scrutiny

of government (Key Jr. 1961; Lipset and Rokkan 1967; Schattschneider 1960, 68). Such

arguments about the value of democratic arrangements entail further that democracy may be

important both to provide input legitimacy and to ensure output legitimacy.

This focus on the need for institutions that create and maintain assurance among contingent

compliers may shed light on how to alleviate the legitimacy deficits of the EU. There should

be visible, effective channels for correcting or replacing authorities who pursue contested

objectives and policies, also at the European level. Currently, the EU offers little room to

present rival leadership and policy agendas, and national politics dominate EU elections.

There are few national arenas for discussing issues of how the EU should develop and the

policies it should pursue. Thus the electorates views on European issues do not inform theagenda of European Parliament and EU policy making (Van der Eijk and Franklin 1996).

General objections that such changes threaten efficiency and problem solving legitimacy do

not withstand scrutiny without further elaboration of the best alternatives. Democratic

accountability or some other complex mechanisms seem necessary to maintain trust in the

problem-solving authorities, their objectives, means and good will.

7 Current Normative Research On the European UnionWe finally review some of the topics of normative political theory that currently receive

attention, and that are likely to remain high on the research agenda in the future processes of

European integration. Some are listed in section 1, but we may list the topics by their objects

of legitimacy.- The authorities the political actors: should they be democratically accountable or not

(Majone 1998a, Magnette 2000, Schmitter 2000, Lord and Beetham 2001, Moravcsik 2002,

Mny 2002)?

- The legitimacy of particular institutions for instance, should European courts be superior

to national courts; what should be the proper powers and composition of Comitology (Lodge

1996, Dehousse 1999, Joerges 1999).

- the regime, that is the political order as a whole. The conceptual issues include notions of

statehood and sovereignty, and the basic form of this order. Questions about the legitimacy

of this regime can be of the four different kinds. The concern may be about general

compliance with the rules and authorities; or an assessment of the consistency of procedural

norms and authority structures that constitute the formal and informal rules of the game

(Bellamy and Castiglione 2003, Lenaerts and Desomer 2002). Another central issue is of


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course theproblem-solvingability of the system, where empirical evidence must tell whether

the EU can actually obtain the objectives stated in the treaties, and whether it actually does so

reasonably well (Scharpf 1997a, Majone 1994). Finally, we may be asking whether the

regime can be justifiedto those subject to it (Lehning 1997, Weiler 1999).

- the regimeprinciples. The research includes questions about the legitimacy of certain

objectives, values and ideals of the EU, such as general welfare, participation, or the rule oflaw; and the scope of decisions and division of powers between the institutions (cf. Schmitt

and Thomassen 1999, ch. 3). Should, for instance, the aims of the EU include (re)distributive

social policies or military objectives? The central issues here seem to be matters of normative

and problem-solving legitimacy.Legalityis also at stake, at least in the sense that the member

states constitutions may restrict the powers of Union bodies. Thus the legality of the whole

regime was challenged by the German and Danish Constitutional Court decisions, and their

rulings constrain future development of the EUs objectives.

Thepolitical community: Where should the borders of the European Union be drawn: who

should participate in and maintain common decision-making processes for these ends? Issues

about the appropriate role and content of a shared European identity may be relevant for this

issue.

The following remarks expand on some of these issues, concerning attempts to enhance

democracy and human rights in the EU.

The discussion about whether to democratize Union bodies has received much attention by

political theorists. Many have applauded the slow increase of powers to the European

Parliament from Maastricht onwards in the Amsterdam Treaty, since this is said to reduce the

democratic deficit. Authors particularly welcome changes that allow directly elected

representatives to co-determine legislation and to hold the Commission accountable. (Lodge

1994, Lodge 1996, Wessels and Diedrichs 1999). However, even such measures are

contested. Further clarification concerning normatively acceptable democratic institutions in

the EU is required, if for no other reason that such vague and contested terms as democracy

may otherwise be misapplied and lend support to reforms on false grounds (Schmitter 2000).

Contributions in this field have addressed the grounds of democratic institutions, their

irreplacability, and the appropriateness of majority rule. Some authors hold that individual

autonomy should be secured, based on the assumption that self-determination is a

fundamental human good. This entails that the EU must be a freedom-enabling order

providing citizens opportunities for active participation to shape and sustain their institutions

(MacCormick 1999, 164). Others may hold such self-determination to be a contested ideal of

human flourishing, hence unsuited as a common normative basis. Several authors insteadfocus on individuals interest in security against interference and against being subject to the

arbitrary will of others (Pettit 1997; Bellamy 1999; Abromeit 1998). The Charter of

Fundamental Rights may come to serve important functions in this regard. Some authors alsoargue that institutions should foster political involvement, both to keep the political order just, and

to foster the appropriate human nature (Bellamy 1999). These may be important stabilizing

mechanisms necessary to ensure the sustainability of such a just political order, and hence the

subject of normative political theory.

One topic that requires further attention is the place of deliberation in the European political

order. A controversial issue is whether and how public political deliberation affects citizens

fundamental preferences, as compared to other inputs on character formation, such as thecivilising impact of hypocrisy (Elster 1998). One challenge is to disentangle and trace


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processes that occur while parties talk: when are they arguing, and when are they bargaining?

and how do we tell the difference? For instance, it is difficult to infer from observed

changes over policy preferences whether what has occurred is modification of ultimate

objectives which is the main claim of some deliberative democrats or part of bargaining in

a broader sense. In either case it remains to be seen whether such shifts are to the normatively

better, or simply to the groups own benefit. Another important concern is whether suchpreference transforming discussions should primarily happen within institutions with

authority, or within civil society in general (Nino 1996 vs. Dryzek 1990).

The reasons in favour of deliberation for interest formation rest on assumptions that are

presently less plausible at the European level than at the national. The opacity of European

institutions, the present lack of a well-developed European public space, and the relative

absence of European political parties reduce the opportunities for character formation, and

limit the informational bases and range of political choice. However, there is little reason to

believe that these features are permanent, so such pessimism would seem premature.

But this does not yet provide an argument that decisions in general should be made in

deliberating bodies, or that more deliberation among more individuals is always better since

a group may collude against others by what may appear to be deliberation. Nor does the needfor preference modification require that we rank deliberation over preference aggregation, e.g.

by votes. Preference formation and other tasks of deliberation do not replace or compete

against voting. We can be concerned with deliberation and at the same time be aware of the

need for Post-deliberative democracy. Indeed, this is not new: A broad range of democratic

theorists have favoured open public debates for preference modification, learning and

inclusion. Indeed, few theorists have been solely concerned with democracy as interest

aggregation though some recent deliberative theorists give that impression (Mill [1861]

1958, Schattschneider 1960, Schumpeter [43] 1976), Key Jr. 1961, 449, Riker 2003, 172).

It remains to be determined when observed preference shifts in comitology are due to shifting

expected payoffs, or shifts in ultimate objectives generally. We must also consider the risks

involved, e.g. of collusion. Such risks but perhaps also the benefits may be greatly

reduced by constraining comitology within other institutions such as the European Parliament.

Others hold that institutionalised networks provide good opportunities for participation that

enhances legitimacy (Hritier 1999). They may be among the many sites where private and

public bodies can meet to deliberate about solutions to conflicts (Bellamy 1999). However,

the institutionalist issues concerning trustworthiness reappear. How realistic is it that such

networks will remain open, and not be skewed against emerging new points of view,

preventing equal access to the agenda (Abromeit 1998)?

Some hold that associations in civil society play important roles in correcting skewedrepresentation, providing information and socializing citizens. (Cohen and Rogers 1995).

Some hold that democratic arrangements should be replaced (Dryzek 1990, Eriksen 2000,

44). Others more cautiously explore how these networks may supplement competitive

elections and other traditional institutional staples of democracy (Cohen 2003), and how to

maintain the undistorted arenas over time (Femia 1996; Goodin 1992). Majone also defends

independent agencies only as subject to various checks (Majone 1998a). Thus, his suggestion

is not to replace representative democracy, but rather to include bodies that are in turn under

some form of democratic control.

Another important issue for the normative political theory of the EU is the legitimate role of

such democratic principles as majority rule and the one-person-one-vote. It is not obvious thatmajoritarian decision-making is appropriate when segments of the population risk being in a


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permanent minority, especially if the majority cannot be trusted to always modify their views

in light of the impact on minorities. And one-person-one-vote may not be appropriate under

such circumstances: skewed representation that favors minorities may be defensible. Hence,

the appropriate modes of securing responsive and accountable rule within federal and other

multi-level orders for plural societies merit further scrutiny (Lijphart 1999, Barry 1991).

One means to protect minorities from majority tyranny is human rights protection. But shouldpublic power be constitutionally constrained by human rights, in the form of national or

European judicial review? Some scholars hold that constitutionalised human rights are

necessary for an acceptable political order (MacCormick 1999). Others are wary of such

substantive constitutional constraints on unconstrained political debate concerning norms

and requirements (Dryzek 1990), and hold that democratic attempts at reaching compromises

should only be secured by procedural constraints that allow individual to fight for their rights

themselves (Bellamy 1995; Bellamy 1999). Such censure can be said to express profound

disrespect of citizens sense of justice and deliberative capacities (Waldron 1998).

Europeanisation and globalization create new versions of this classical issue. What are we to

make of international bodies that monitor and adjudicate signatory states, by judges whosedynamic interpretations of near immutable treaty texts go unchecked? The multi-level

governance characteristic of Europeanisation puts further questions to a political theory of

human rights that seeks to address the roles and risks of international human rights regimes.

To illustrate, quite different sets of human rights standards may be appropriate triggers for

valuable but widely differing actions by a wide range of actors: - justifiable disobedience by

citizens, - international monitoring, - non-military pressure, - military intervention, - and

transnational corporations Corporate Social Responsibility.

The roles of human rights in the EU raise even further issues. In the EU, human rights do not

only constrain governments vis--vis their own citizens and toward other sovereign states.

The legitimate powers of central authorities vis--vis sub-units of a (quasi-)federation also

merit scrutiny. Some human rights norms should also regulate the relations among Member

States, possibly holding them to higher standards since they share values and objectives,

while cautious about sanctions since the sub-units are internally democratic. In the EU, one

related concern is the appropriate relationship between subsidiarity and human rights.

Consider, for instance, that Art 7 of the TEU after Nice does not permit humanitarian

intervention against human rights violations within a member state. Is this application of

subsidiarity normatively defensible, or should EU bodies enjoy further powers of

intervention?

ConclusionThe European Union challenges central tenets and raises central issues in normative politicaltheory. Europeanisation forces researchers to attend to fundamental concepts and values

including the nature of the state and its justification, the reasons to value democracy and

human rights, and how to maintain stable and just multi-level political orders. Such

systematic reflections are sorely needed when politicians consider alternative strategies to

enhance the transparency, responsiveness and fairness of EU institutions. They know that the

Union must be justified toward all citizens and their representatives, at least at the time of

Treaty ratification and in times of crises.

Political theory insists that the legitimacy and legitimation deficits are not only a matter of

present public opinion registering low levels of political support for institutions, policies andauthorities. Such a perception is indeed relevant for when citizens have a political obligation


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to obey normatively legitimate institutions, since they must have reason to trust the future

compliance of other citizens and authorities. Trustworthiness in institutions and fellow

citizens seems necessary for the long term support for the multi-level political order, and for

authorities ability to govern. Normative political theory may thus help promote the long term

stability of a political order.

However, normative political theory offers only conditional support. If theorists find no

common good for Europe and Europeans, or find that the EU as a regime or some particular

institution - fails to secure these objectives, these findings may erode what meagre support

there is. Theorists might then even conclude that the regime lacks a moral right to obedience,

and thus add their voices to calls for reform toward a political order that respects all as equals.


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