Peter L. Lindseth

Democratic Legitimacy and the Administrative Character of Supranationalism: the Example of the European Community

This Article argues, from the standpoint of democratic legitimacy, that supranational institutions are best understood as administrative in character, and then explores the implications of this argument by looking at the European Community. The author concludes that the Communitys democratic deficit flows primarily from an inability to establish democratically legitimate hierarchical supervision over supranational technocrats -- a problem bound up with the historical relationship between demos, democracy and national political institutions as cultural symbols of popular sovereignty. The author examines aspects of Community law designed to maintain forms of national control, as well as two alternative strategies -- democratization through the European Parliament, and non-hierarchical legitimation through transparency and participation rights in the Community regulatory process. Finding these strategies ultimately inadequate, in themselves, to the needs of democratic legitimation, the author turns to judicial review, critically analyzing the deference shown by the European Court of Justice to Community legislative decisions relative to the more democratically-legitimate Member States. Finding this broad deference inconsistent with the Communitys administrative character, the author outlines an alternative approach -- a substantive presumption against supranational legislative autonomy -- as well as a new procedure -- a European Conflicts Tribunal -- to resolve conflicts over the scope of the relative legislative authority of the Member States and the Community. The purpose of these reforms would be to mediate between the legitimate needs of legislative harmonization at the Community level, on the one hand, and the persistence of the nation-state as the historically legitimate symbol of democratic sovereignty, on the other -- a tension that arguably exists in any supranational body.

The Critical Promise of the New History of European Law

Historians of contemporary Europe, whether legal or otherwise, are necessarily laggards — and thankfully so. The collective understanding of the contemporary world, and more particularly its change over time, inevitably deepens and becomes more nuanced when historians enter the scholarly fray. But that takes time. The discipline of contemporary history depends (not exclusively, of course, but importantly) on access to archival evidence. And during the time when the archives remain closed to historians, scholars from other disciplines understandably dominate the discourse and set the interpretive baseline against which the inevitably late-coming contemporary historians must later react. In the case of the law of European integration, important elements of this interpretive baseline have, over the last several decades, arguably become so widely accepted among political scientists and legal scholars that much of it stands as a kind of conventional wisdom. This is unfortunate, at least from the historian’s perspective. The reason is that this baseline now includes a range of implicit historiographical assumptions — for example, about periodisation (that is, when legal integration ‘began’ in a scholarly significant sense), as well as about the definition of the purported object of study (most notably, the seemingly ‘constitutional’ character of the process of European integration) — which today demand critical historical scrutiny. This, I would suggest, is the promise of the new history of European law, as represented by the several contributions in this special issue. These articles both critically test key elements of this too-well-settled interpretive baseline and also offer considerable fresh insight that can only come from patiently waiting to see what the archival evidence uncovers. Building on a similar critique of that baseline, the present article draws on my own recent work on European integration to argue that the EU can profitably be understood, in legal-historical terms, as a denationalised expression of diffuse and fragmented (that is, ‘administrative’) governance. The basic elements of that governance emerged in Western Europe over the course of the inter-war and post-war decades, and these elements have continued to shape EU legal history up to the present.This is the capstone article in a special issue edited by Morten Rasmussen (University of Copenhagen) and Bill Davies (American University) focusing on the recent historiography of European legal integration, published in the journal Contemporary European History.

Comparative Administrative Law: An Introduction

This book, COMPARATIVE ADMINISTRATIVE LAW, is the first in the series RESEARCH HANDBOOKS IN COMPARATIVE LAW available from Edward Elgar Publishing. Edited by Susan Rose-Ackerman (Yale) and Peter L. Lindseth (University of Connecticut), this volume represents a broad, multi-method approach to the topic of comparative administrative law, combining perspectives from the social sciences and history with more strictly legal analysis. Comparisons of the United States, continental Europe, and the British Commonwealth are complemented by contributions focusing on Latin America, Africa, and Asia. The work aims to stimulate comparative research on public law more generally, reaching across countries and scholarly disciplines. Specifically available for download here is the book’s introduction, along with the table of contents and list of contributors.This volume attempts to capture the complexity of the field while also distilling certain key elements for comparative study. Because administrative law is intimately bound up with the development of the modern state, it begins with a set of historical reflections on its interactions with social and political change over the last two centuries. The remaining parts are broadly thematic. The first concentrates on the relationship between administrative and constitutional law - uncertain, contested, and deeply essential. The book next focuses on a key aspect of this uneasy relationship - administrative independence with its manifold implications for separation of powers, democratic self-government, and the boundary between law, politics, and policy. The next two parts highlight the tensions between impartial expertise and public accountability. They cover, first, internal processes of decision-making (including transparency, participation, political oversight, and policy or impact analysis), and, second, external legal controls on administrative decision-making (that is, ‘administrative litigation’ writ large). The final part considers how administrative law is shaping and is being shaped by the changing boundaries of the state. This part confronts two basic structural issues: the evolving boundary between public and private, and the similarly evolving boundary between the domestic and transnational regulatory orders. In considering this second question, the chapters focus on the EU, as the most evolved transnational regulatory order now operating.

Reflections on the ‘Administrative, Not Constitutional’ Character of EU Law in Times of Crisis

Abstract As is broadly recognized, the realm of administrative power greatly expanded over the course the twentieth century (particularly after 1945). This essay argues that this expansion, along with differential conceptions of legitimacy deeply bound up with it, are crucial to understanding not just the modern administrative state but also the nature of EU governance and the law governing its operation. Despite a dominant paradigm that seeks to understand EU governance in autonomously democratic and constitutional terms, the legitimacy of integration as a whole has remained primarily ‘administrative, not constitutional’. The EU’s normative power, like all power of an ultimately administrative character, finds its legitimacy primarily in legal, technocratic and functional claims. This is not to deny that European integration involves ‘politics’ or has profound ‘constitutional’ implications for its member states or citizens. The ‘administrative, not constitutional’ paradigm is meant only to stress that the ultimate grounding of EU rulemaking, enforcement, and adjudication comes closer to the sort of administrative legitimacy that is mediated through national executives, national courts, and national parliaments to a much greater extent than the dominant paradigm supposes. This is the reality that the ‘administrative, not constitutional’ paradigm on EU law has always sought to emphasize, and it is one that is particularly pertinent to the integration process in times of crisis. It is unsurprising, in these circumstances, that the public law of European integration has continually resorted to mechanisms of nationally mediated legitimacy in order to ‘borrow’ legitimacy from the national level. Unless and until Europeans begin to experience democracy and constitutionalism in supranational terms, the ‘administrative, not constitutional’ paradigm suggests that the EU’s judicial doctrines must be adjusted. The purpose should be to address the persistent disconnect between supranational regulatory power and its robust sources of democratic and constitutional legitimacy on the national level.

Technology, Democracy, and Institutional Change

This is the capstone chapter in a book on digital democracy that is, in the end, fundamentally about institutional change. The book is not merely cautious in its overall assessment but also cautionary, particularly as the contributors seek to understand the institution of democracy in relation to two social developments – digitalization and globalization – that have certainly been disruptive if not also potentially revolutionary. To understand these developments, one must deploy a theory of institutional change operating along three inter-related dimensions: functional, political, and cultural. Regardless of how the most optimistic scholars and theorists have at times conceptualized the new forms of transnational governance that seem to be emerging (particularly in the internet domain, via so-called ‘multistakeholderism’), the broader public seems to have experienced these forms not as a new kind of democracy but as democracy’s negation – a kind of digital technocracy. The elites who populate the various fora of transnational governance – who occupy their positions by virtue of functional power within business, bureaucratic, and technical networks – remain effectively immune from removal by any bottom-up collective political mobilization against them (something especially true with regard to algorithmic transparency and accountability). No wonder populism surges in such an environment: This is no longer democracy, at least not in a historically recognizable sense, but rather an elite technocracy, legitimized by paler forms of transparency and participation, at least as compared to citizen voting within a historically constructed political community in which such mobilization and removal is possible. One likely result is a kind of political-cultural resistance that may contribute to the overall ‘stickiness’, or ‘hysteresis’, of traditional forms of representative government on the national level in the face of the seeming functional demands posed by digitalization and globalization. Representative government within a demos-based political community possesses a degree of specifically democratic legitimacy – derived ‘of’ a people, in a Lincoln sense – that governance networks, no matter how transparent and participatory, simply cannot muster. It is therefore a category mistake to describe them in autonomously democratic terms; they are, instead, an extension of technocratic/administrative governance on the national level. The challenge is thus to find a way to reconcile their existence (including the often significant functional advantages they bring) with the continued popular association of democracy with representative government on the national level. This demands rigorous oversight of such networks – a task to which increasing transparency and participation rights contribute. Rather than seeing ‘multistakeholderism’ as a vehicle for democratization in its own right, it should be seen as a way of reducing information costs that facilitates democratically legitimate oversight by representative governmental bodies that are constituted elsewhere.

Disequilibrium and Disconnect: On Weiler's (Still Robust) Theory of European Transformation

A revised and abbreviated version of this paper will appear in the forthcoming collective volume, The Transformation of Europe -- 20 Years On (Miguel Maduro and Marlene Wind, eds., Cambridge University Press). The argument of this contribution is quite simple: Weiler’s equilibrium theory is not just a creature of the past but remains a fundamentally robust explanation of certain core characteristics of the European system that persist to this day. Integration scholars would do well to take heed of the theory’s central insights, both descriptively and normatively. This is so not least because they serve as a healthy corrective to the widely-held but mistaken idea that European legitimacy is somehow simply a matter of legal and institutional engineering, particularly in the direction of greater transparency and participation rights and greater powers for the European Parliament (EP). Reforms along those lines may well be attractive for all sorts of instrumental and normative reasons. But we should not confuse them for genuine “democratic” legitimation in the proper sense of the term. This I take to be one of the central lessons of Weiler’s equilibrium theory with continuing relevance for today, and it is certainly one that I share.Faith in legal and institutional engineering alone, as if more complex challenges of legitimation did not exist, is indicative of another widely-held but mistaken notion: that Europe’s legitimacy challenge is best described as a “democratic deficit” when, in fact, the real problem is a “democratic disconnect.” The deficit view places its hopes in an increase in “input legitimacy” but ignores the deeper problems of “demos legitimacy” in the EU. By that, I mean the missing sense that the European technocracy and courts constitute a form of self-government “of the people.” To see Europe’s legitimacy challenge as a “disconnect” is not to deny the instrumental value of formal improvements in transparency and participation, or even increases in EP power. Nevertheless, very much consistent with Weiler’s writings on the topic, the idea of the democratic disconnect keeps the categories of formal democratization and democratic legitimacy distinct. Instead, this alternative view stresses that integration, to be enduring and successful, must maintain the connection to democratic and constitutional legitimacy on the national level in a realistic sense, either through delegation constraints or national oversight, whether executive, legislative, or judicial.