Legitimacy crisis in the European Union
Introduction
The European Union (EU) has experienced multiple crises since 2008. But has it experienced a legitimacy crisis, or, in other words, a crisis that calls into question its very ability to operate as a justifiable form of political power? Do we even know what it would be for the EU to experience a legitimacy crisis? Worse, might it even be a mistake to assume the EU belongs to that category of political order that can experience a legitimacy crisis?
One reason for suspecting a category mistake is that the EU is a non-state political system (Hix 1995: 3). For sure any exercise of power may require justification. But the state requires special justification (Buchanan 2002, 2004; Beetham 2013; Peter 2017). Only states exercise powers that are simultaneously (a) comprehensive, (b) final, (c) monopolistic, (d) coercive, and (e) without easy exit options. Moreover, there are, arguably, good reasons for focussing the study of legitimacy on the justification of that configuration. On the one hand, it is, as David Beetham (2013: 3 & 40) observes, when it involves some people coercing others that power becomes ‘morally problematic’. It is all the more so, one might add, if that coercion is exercised by a body whose powers are comprehensive, final, monopolistic, and without easy exit options. On the other hand, people may struggle to govern themselves well without the combination of powers that define states as states. Democratic states and the kinds of democratic community that go with democratic states may be needed to specify and enforce basic concepts of rights and justice (Miller 2007; Bellamy 2019). So, if, as Bernard Williams argues (2005), the role of legitimacy is to solve the first question of politics without which other questions cannot be answered - namely, how to achieve ‘order . . . trust and conditions for social cooperation’ (3) - maybe the first question of legitimacy should be how can power be comprehensive, final, coercive, and, yet justified? Indeed, how can power be state-like and yet justified, or how, in Weber’s terms, can the state be a legitimate form of domination?
In complete contrast, the EU is a multi-state, multi-national, and multidemos political order that makes policy and law within and beyond its component states without itself being a state. Of course, such a peculiar configuration may itself require its own special justification. Hence, the hugely influential democracy literature asks what kind of European Union would be justified between democratic peoples who want, as Kalypso Nicolaidis (2013: 351) puts it, to ‘govern’ themselves ‘together but not as one’ (see also Cheneval & Schim-melfennig 2013; Bellamy 2019). Yet, many have suggested that the challenge of justifying the EU may not just be different. It may also be less demanding than legitimating the state. So, for example, in (gently) cautioning against turning the investigation of the EU’s legitimacy into the study of a false problem, Rodney Barker (2003) reminds us that there can only be a problem of legitimacy where there is a significant exercise of political power. Legitimacy, as he puts it, is not a concept that can ‘usefully be applied where rule is absent, hypothetical or so indirect as to be invisible to the ruled’ (159-60). Indeed, it can be questioned how far the EU exercises political power of its own, and how far it, therefore, needs legitimacy of its own. The Union lacks its own means of coercion to the point at which Joe Weiler (2012: 13) has characterised the EU law as mainly ‘an invitation to obey’.
The legitimacy of the EU may be a subsidiary question precisely because such power and legitimacy as it has - or can have - are derived from its member states. Many treat the Union as an instrument of power that resides elsewhere: as an instrument of the state-like and state-made powers of its member states. Andrew Moravcsik (1993: 508) argues that Union institutions are merely ‘contractual environments’ - of technical supports and commitment technologies - for governments to reach bargains that need little further explanation or justification than the distribution of preferences between themselves. Likewise, for Peter Lindseth (2010), the Union demonstrates how power beyond the state can be hugely ambitious and yet derived from legitimate power within the state. If that is so, serial crises in the Union since 2008 may, on closer inspection, turn out to be more co-ordination failures than legitimacy problems. Member states can, in principle, legitimate the Union to deal even with crises as acute as recent ones. They have simply failed to coordinate on successful practical solutions to problems.
Where, however, that argument may go wrong is in assuming that the Union can unproblematically derive or borrow its legitimacy from its member state democracies. What if the very processes by which the Union derives its legitimacy from its Member states are themselves vulnerable to legitimacy crisis? In exploring that possibility, this chapter proceeds as follows. Section 2 argues that, although, the Union is a multi-state, multi-national, and multi-demos political order that makes policy and law within and beyond its component states without itself being a state, the EU also contributes to power relations that define its Member states as states: namely, power relations that are comprehensive, final, monopolistic, coercive, and without easy exits. Section 3 argues that configuration derives from a need to reconcile two profound challenges: namely a need for the Union to derive at least some of its legitimacy from its member state democracies and a reverse need of the latter for a body such as the Union to manage externalities between themselves if they are to deliver obligations to their own publics on which their own legitimacy depends. Section 4 develops a generic concept of legitimacy crisis and a framework for identifying what it would be for the EU to experience a legitimacy crisis. Section 5 then uses that framework to develop some theoretical expectations of where the Union as I have characterised it - as a means of managing externalities between its member state democracies while remaining under their equal shared control — is vulnerable to legitimacy crisis. I argue that, in turn, demonstrates where the Union’s arrangements for deriving its legitimacy are in danger of ceasing to be a means of borrowing the EU’s legitimacy from that of its member states. Rather, those arrangements are themselves a new form of political power in need of legitimation; and that, in turn, helps us understand how far crises, since 2008, have also been a legitimacy crisis in the EU.
