Introduction: Reconciling Europe and the Nation-State

Abstract

European governance is administrative, not constitutional. That is the basic thesis of my forthcoming book, POWER AND LEGITIMACY: RECONCILING EUROPE AND THE NATION-STATE (Oxford University Press, 2010). The Table of Contents and Introduction are now posted on SSRN for review and comment.

This historical synthesis challenges an idea, widespread among legal scholars of integration, that European governance is built on a set of "institutions constitutionally separated from national legitimation processes." To the contrary, the mechanisms of national oversight examined in this book have developed historically to overcome the seeming disconnect at the heart of integration, between otherwise autonomous exercises of supranational regulatory power, on the one hand, and the national sources of democratic and constitutional legitimacy, on the other.

These national mechanisms include, most importantly, collective oversight of the supranational policy process by national executives (Chapter 3), judicial review by national high courts with respect to certain core democratic and constitutional commitments (Chapter 4), and increased recourse to national parliamentary scrutiny of supranational action, whether of particular national executives individually or of supranational bodies more broadly (Chapter 5). These practices should be understood, this study maintains, as reflecting a convergence of European governance around the legitimating structures and normative principles of what this study calls the "postwar constitutional settlement of administrative governance" (Chapter 2).

The development of these structures also reflect an ongoing process of contestation and (potential) settlement in the institutional evolution of European governance over time. Much less than reflecting the purportedly "sui generis" character of "multilevel" or "polyarchical" governance in Europe (three commonly deployed rubrics), the mechanisms of national oversight studied here have an identifiable historical pedigree. They are grounded in models of administrative legitimation that emerged in postwar Western Europe in response to the disastrous constitutional failings of the interwar years. For that reason, to understand integration, historical attention to the antecedent stabilization of administrative governance on the national level is essential. By conforming to the normative demands of the postwar settlement (most importantly, "delegation" and "mediated legitimacy"), European public law has sought to reconcile the functional realities of integration with the continuing role of the nation-state as the primary locus of democratic and constitutional legitimacy in the European system.

The process of European integration has had, without doubt, profound constitutional implications for its constituent states. It has both disciplined certain negative externalities of national democracy and offered market actors a range of transnational rights and duties, all in order to construct a new market-polity transcending national borders. Nevertheless, this polity has had great difficulty being understood as "constitutional" in its own right. Most importantly, it has struggled to be seen as the embodiment or expression of a new political community ("Europe") capable of self-rule through institutions historically "constituted" for that purpose. Rather, as with all forms of administrative governance, European integration has remained ultimately dependent, for its democratic and constitutional legitimacy, on the "constituted" bodies of "representative government" on the national level - executive, legislative, and judicial.

Keywords: European governance, legal history, postwar constitutional settlement, administrative governance, delegation, legitimacy