Types of legitimacy crisis

I have argued that even without being a state, the EU contributes to those forms of power relations that define states as states: namely, power relations that are comprehensive, final, monopolistic, coercive, and without easy exit options. Those power relations have, in turn, developed in response to a need for the Union’s member state democracies to manage externalities between themselves if they are to deliver their own obligations to their own publics.

Can all that help us understand where the Union might be vulnerable to legitimacy crises? To answer that question, I first deal with some obvious challenges in specifying any concept of legitimacy crisis. What, David Beetham (2013: 168) asks, would a legitimacy crisis amount to? How should we distinguish legitimacy crises from mere legitimacy deficits, or legitimacy problems? Should we distinguish legitimacy crises as states of affairs from legitimation crises as processes of failing to establish or restore justified political power? Are there varieties of legitimacy/ legitimation crisis that need to be adapted to the particularities of any one political system? This section proposes a generic concept of legitimacy crisis as well as a typology of legitimacy crises specific to the EU.

In his classic Legitimation Crists, Jürgen Habermas (1973: 1-2) observes that ‘crisis’ originated as a medical term for that ‘phase of an illness in which it is decided whether or not an organism’s self-healing powers are sufficient for recovery’. Philosophers ‘from Aristotle to Hegel’ then took crises in political orders to be ‘turning points’ where ‘conflicting norms shatter identities.’ Social scientists then noted that crises can be of social and political systems, as well as of norms and identities: ‘the structure’ of social political systems can ‘allow fewer possibilities for solving problems than are necessary to the continued existence of the system’ (ibid.). Indeed - whether they originate in breakdowns of norms, identities of systems we might say that legitimacy crises occur where a political order is unable to satisfy all necessary conditions for the justification of its powers simultaneously.

That is an intentionally abstract and generic definition, designed to avoid assuming any one form of political order, any one set of necessary conditions, any one set of standards of justification, and any one form of crisis. Building a theory of what it would be for any one political order to experience a legitimacy crisis should then consist of‘filling in’ the generic definition by specifying standards and necessary conditions for the justification of powers specific to that political order.

So, in the case of the EU, we might start by distinguishing three broad understandings of how it can operate as a democratically justified form of political power. According to the one, the Union can or should be directly legitimated at least to some degree by citizens: that is by values, rights, and procedures that are defined and controlled by citizens in ways that do not exclusively depend on their prior membership of their member state democracies. According to a second view, which we have already partially encountered, the Union’s legitimacy can only be indirect. Justification for the powers and decisions of the Union depends on the consent and participation of its member state democracies whose legitimacy the Union ‘borrows’ (Lindseth 2010: 12). According to a third view, we should not just distinguish direct and indirect sources of Union legitimacy. We should also distinguish different ways in which the Union can draw its legitimacy from the inputs, outputs, and throughputs (ways of converting inputs into outputs) of its political order (Schmidt 2012: 662-4). Those three schools of thought, in turn, imply three different ways in which the EU might experience a legitimacy crisis through failing to meet all necessary conditions for its legitimacy simultaneously.

Type 1: Direct Legitimacy Crisis: The Union will fail to satisfy all necessary conditions for its legitimacy where it is caught between a need for some direct legitimacy and the difficulty of delivering all conditions needed for democracy beyond the state.

As seen, the Union defines rights, makes law, and allocates values. However, individuals must be able to control the authoring, amendment, and administration of all their own laws (Habermas 1996), public policies, and rights as equals if they are, indeed, to be free and equal. To meet that basic requirement for democratic legitimacy, the Union can, for sure, continue to rely in large part on the ultimate control of its powers by its member state democracies. But can that really be enough without at least some element of direct democratic legitimacy beyond the state? Can citizens have a sufficient control of Union laws just through their election of national governments and national parliaments? A collective oversight of Union decisions by elected national governments may only lead to forms of executive domination. For sure, national parliaments can scrutinise the ways in which member state governments oversee Union decisions. But that, in turn, is open to the objection that it gets power relationships the wrong way around. How can national parliaments supervise what their governments do in EU institutions when, in many member states, governments control their parliaments? Indeed, national executives can, arguably, practise forms of‘reverse agency’ (Bohman 2007: 7). Instead of controlling Union decisions on behalf of national parliaments and publics, national governments can use Union decisions to co-manage and constrain their own national democracies. An example might be Habermas’ complaint that Eurocrisis decisions were dominated by a ‘self-authorising European Council confined to heads of governments’ who — far from being supervised by national parliaments - undertook to ‘organise majorities in their own national parliaments under threat of sanctions’ (2012: viii) for failing to deliver those majorities.

Yet, even if Union decisions could be adequately controlled by the relationship of each national parliament and national public with its own national government, the making of so much policy and law together at the Union level should, arguably, be accompanied by some element of public contestation and debate across national boundaries, if all those ‘subjected’ to Union decisions are also to have opportunities to represent their views to all those with powers over the making of any Union decisions that may one day be legally enforced upon them, including citizens and representatives of citizens from other member states.

While, though, there may be a case for some public control and debate at the Union level through democratic procedures that do not depend only on the representation of citizens by their national governments and parliaments, the Union may struggle to develop fully satisfactory democratic institutions and politics of its own. Consider a long and demanding set of conditions that may be needed for a democracy to work well, including (a) freedoms and rights, (b) a form of political competition that offers voters choices relevant to the control of the political system, (c) a civil society in which all groups have an equal opportunity to organise to influence the polity, (d) a public sphere in which all opinions have an equal access to public debate, and (e) a defined demos, or, at least an agreement on who should have votes and voice in the making of decisions binding on all. Achieving all these conditions simultaneously may be hard for a body such as the EU that operates from beyond the state and is not, therefore, itself a state. The capacity of the state to concentrate power, resources, and legal enforcement has been useful in all kinds of ways to democracy in ensuring that the decisions of democratic majorities are carried out, in guaranteeing rights needed for democracy, in drawing the boundaries of defined political communities, and in motivating voters and elites to participate in democratic competition for the control of an entity which manifestly affects their needs and values.

Indeed, the key ingredients and infrastructures of democratic representation -parties, organised interests, social movements, parliaments, and elections - have only developed patchily beyond the state. Nowhere, and not even in the case of the EU, are those elements so fully and evenly developed beyond the state that they fit together to form a complete system of representation as easily as their equivalents within the state. A further difficulty, as Fritz Scharpf (2009: 181) observes, is that the EU is a government of governments which must, in the first instance, be legitimate with its member states. Member states must feel Union policies are sufficiently legitimate to oblige them to implement those policies even before citizens are called upon to comply. On that interpretation, the indirect legitimacy of the Union is, as it were, prior to any direct legitimacy it might also need.

Yet, the case for some continued legitimation of the Union via its member state democracies is not just a matter of making the best of a bad job where it is difficult for the EU to develop its own democratic politics and institutions fully. Rather a Union whose legitimacy is mainly derived from that of member state democracies may be valued in itself. Habermas (2012) has argued that the Union should be justifiable to individual citizens twice over, both as individual citizens of the Union and as citizens of democracies that are Member states of the Union. Citizens may value existing democratic communities and the achievements of their democratic-constitutional-welfare states. Hence, the Union may need to be justifiable to citizens as a form of belonging and of collective decision-making that allows them to be (a) citizens of (b) national democratic political communities of (c) democratic-constitutional-welfare states that are (d) Member states of the EU that is itself (e) an association of both national democracies and their citizens.

In sum, then, some element of continued legitimation by Member states seems all but unavoidable once we combine some very basic requirements for how the EU ought to be legitimated with some very basic constraints on how it can be legitimated: notably requirements that citizens ought to control their own laws with requirements that they do that through democratic communities of their choice that can support the infrastructures for democratic politics. But what if member state democracies on which the Union depends for its legitimacy make contradictory demands on the Union’s legitimacy? What, indeed, if attempts to legitimate the Union via its member state democracies only risk democracy-on-democracy domination?

The Euro crisis is an example of both those problems. Any assumption that Eurozone (EZ) members could only be legitimately required to do those things to which they had consented suggested that monetary union should operate as a self-help system. Had not publics been told would there be no bail-outs and that individual members would for the most part be responsible for their own taxation, borrowing, and spending? Yet, Member states had also constructed monetary union together and made mistakes in its design together (Lord 2017b). Did not that, in complete contrast to any self-help system, imply some shared duties of justice and solidarity in any monetary union (Viehoff 2018)? Understandings ofjustice clashed with those of consent; or, rather, the idea that it would be unjust to require a member state democracy to do what it had not consented to do clashed with the idea that it would be unjust for just some Member states to carry the costs of what had in some ways been shared mistakes. Hence, it probably has been hard to respond to the banking crisis in ways all member democracies considered fair. Worse, that question was largely decided by the relative bargaining power of creditors and debtors. Although fault and responsibility arguably lay with both creditors and debtors, Ireland and Greece (Sandbu 2015; Stiglitz 2016) ended up paying a part of the cost of saving the banking systems of larger and more powerful member states. Such difficulties suggest a further form of legitimacy crisis:

Type 2: Indirect Legitimacy Crisis will occur where the Union cannot be legitimate with all its member state democracies simultaneously or attempts to legitimate it via its Member states produce democracy-on-democracy domination.

I will come back to this problem. First, though, I want to suggest a third way in which the Union can experience a legitimacy crisis. Political philosophers and political scientists have long debated how far it is important to distinguish input, output, and throughput conditions for the democratically legitimate exercise of political power. How far does democratic legitimacy depend only on inputs from votes and voices? How far, in contrast, are political systems justified by outcomes that citizens value? How far, indeed, are citizens even obliged to accept those political systems as legitimate whose outputs are needed if citizens are to meet their own obligations to respect the rights of others and treat them with justice? Does, moreover, the justification of political power also depend on ‘throughputs’; or, in other words, does it depend on the quality of procedures for converting inputs from ‘votes and voices’ into outcomes that deliver values or secure rights?

In answer to those who believe that legitimacy is purely procedural, we might imagine a political system that is procedurally perfect in its voting and deliberations -and which, none the less - has no outputs. Would we consider it legitimate? Perhaps not, if we think that one justification for any form of political rule is that it should be able to provide the most basic of public goods needed for personal security and economic and social welfare. Moreover, democracy may itself have both consequential and intrinsic justifications (Christiano 2003: 1). In other words, democracy may be valued both as a procedure that allows us to govern ourselves as equals and as a source of further outcomes such as peace, justice, prosperity, and human development. Those outcomes may, on average, be more likely in democratic systems. They may justify democracy over and above anything it does procedurally to treat individuals as free and equal.

Yet, the input, output, or throughput components of legitimacy may come into conflict with one another. The question then arises whether a polity can make what are accepted as legitimate trade-offs between optimal outputs and ideal procedures. Once again, the challenge may be especially acute in the case of the EU. As a Union of democracies, a high level of agreement between Member states may be a procedural condition for input and throughput legitimacy. However, multiple veto points may make it harder for the Union to secure the outputs that are thought to justify a collective action at the European level in the first place. Multiple vetoes may also mean that crisis is inherent to the Union. If things need to be critical for all veto holders before the last veto is lifted, the Union may only be able to decide through crisis (Fabbrini 2019).

As these examples partially suggest, the Union may be caught in a predicament. It may need to be output legitimate if it is to be legitimate at all, and it may only be output legitimate in so far as it is input legitimate via its member state democracies that, in turn, only supply input legitimacy in ways that imply many veto points on what is needed for the Union to secure output legitimacy. It seems plausible that the Union is structurally best placed to provide some forms of output legitimacy while Member states are better placed to secure input legitimacy (Scharpf 1999). On the one hand, it is the Union whose policy outputs can provide collective goods at the European level and internalise externalities between member states. On the other hand, it is Member states that can provide inputs to Union policies that are mediated through established forms of democracy within states, rather than the more difficult route of democracy beyond the state. There is, however, to say the least, no guarantee that the Union will supply outputs that are concurrently input and throughput legitimate within and between all its member state democracies. With mass flows of refugees, an agreement that migration and asylum should be the responsibility of the first country of arrival no longer seemed a justifiable outcome to many Italians or Greeks even though it had been concluded by international treaty and, therefore, by a legitimate procedure. Yet, the alternative of burden-sharing had a contestable legal base for East and Central European governments (Fabbrini 2019: 8). What right had some Member states supported by the Commission to channel their frustrations through the EU Treaties in ways that imposed obligations on other Member states to accept quotas of migrants? Hence, the following is a further way in which the Union might experience a legitimacy crisis is:

Type 3: Legitimacy Crisis: The EU will fail to satisfy all conditions for its legitimacy simultaneously where there are conflicts between inputs, outputs, and throughputs that would justify the exercise of political power by the Union.

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