Woodrow Wilson School of Public and International Affairs at Princeton University



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The Jean Monnet Program

Professor J.H.H. Weiler

European Union Jean Monnet Chair

in cooperation with the


Woodrow Wilson School of Public and International Affairs at Princeton University

Provost Christopher L. Eisgruber

Laurance S. Rockefeller Professor of Public Affairs

Altneuland: The EU Constitution in a Contextual Perspective


Jean Monnet Working Paper 5/04
Daniel Halberstam

The Bride of Messina or European Democracy and the Limits of Liberal Intergovernmentalism

Papers included in this collection should be cited according to the following format.
Daniel Halberstam, The Bride of Messina or European Democracy and the Limits of Liberal Intergovernmentalism, in Weiler and Eisgruber, eds., Altneuland: The EU Constitution in a Contextual Perspective, Jean Monnet Working Paper 5/04, [http://www.jeanmonnetprogram.org/papers/04/040501-20.html]

All rights reserved.

No part of this paper may be reproduced in any form

without permission of the author.

ISSN 1087-2221

© Daniel Halberstam 2004

New York University School of Law and

Woodrow Wilson School of Public and International Affairs at Princeton University

The Bride of Messina

or

European Democracy and the Limits of Liberal Intergovernmentalism
Daniel Halberstam*

IntroductionIntroductionIntroductionIntroduction


There is an ongoing debate between scholars who maintain that the Union is the predictable product of agreements among the member states and scholars who argue that much of the Union is the unintended consequence of those intergovernmental agreements.1 The former contend that supranational actors fill in gaps and render credible intergovernmental commitments in ways that member states ultimately want. The latter suggest that the institutional arrangement has allowed supranational actors to exercise power in their own self-interest, thus creating a semi-autonomous realm of European action. This essay argues that both accounts still miss something important: both conceptions of the Union underestimate the role that a commitment to principle on the part of individuals plays in the European enterprise. As this essay will show, the failure to appreciate this particular role of individuals has important consequences for how we understand democracy in Europe.

Both sides of the current debate still largely embrace a rational actor model, in which different institutions make rivaling claims based on their respective rational self-interest. Depending on how “rationality” and “self-interest” are understood, this may indeed be accurate. But all too frequently, the argument about institutional self-interest eclipses a more fine-grained inquiry into just what the motivations and self-conceptions of actors in this enterprise are.

This essay, in contrast, deliberately pursues a more playful metaphor of human action taken from the work of Friedrich Schiller. As Schiller wrote in the introductory essay to The Bride of Messina: “[A] faithful painter of what is real . . . will grasp the accidental appearances, but never the spirit of nature. He will only bring back the stuff of the world; but it will not be our work, not the free product of our formative spirit, and therefore cannot have the beneficial effect of art, which is freedom.”2 In the spirit of this recognition, the hope is that a foray into Schiller’s moral aesthetics will help illuminate the importance of the ethical self-conception of individual actors to the direction of European integration.3 Although grand bargains may set the stage and member state continue to play a crucial role in the Union, individual actors nonetheless retain an important measure of freedom to express their principled commitments in whatever roles they are assigned to play.

This essay will argue that European integration and Europe’s growing democratic aspirations have depended in considerable part on the self-conception of individuals making decisions within particular institutional settings. It will argue that individual actors have repeatedly seized the decisional autonomy granted by whatever institutional arrangement they inhabit. And it will argue that they have done so in ways that are neither arbitrary nor simply reflective of personal or institutional self-interest. Instead, this essay contends, individual actors have exercised their discretion by drawing on their own principled commitments and their resulting conceptions of the nature of the European enterprise.

In particular, this appeal to principle has entailed an understanding of the Union as liberating the individual (and her communities of interest) from the comfortable monopoly of member state processes of political decision making. The descriptive and normative run together here. Acting on this democratic vision, individuals have brought about a pervasive normative recalibration of the Union. They have shifted integration away from the member states governments as the exclusive locus of normative concern, and included the individual as the direct subject of the enterprise. As this essay will show, this “democratic recalibration” of the treaties has had a profound effect on the development of European integration.

The following discussion proceeds by way of responding to the most prominent contemporary proponent of an intergovernmental account of the Union: Professor Andrew Moravcsik.4 After briefly placing Moravcsik’s arguments in the context of the debate about European integration, Part I will offer a different account focused on the role of the individual as both actor and subject of the European enterprise. Part II will then specifically address Professor Moravcsik’s argument about the current state of the Union’s democratic legitimacy.5 This Part will reject the notion that European integration is a relatively limited enterprise that concerns itself only with matters that would be (and are) relegated to relatively non-participatory processes within the member states. First, Part II.A. will illustrate the breadth of European policies. Next, Part II.B. will address the nature of member state democratic processes and the ways in which the Europeanization of public policy can undermine as well as promote democracy. As will already become clear in this Part, the disagreement with Moravcsik on this score is not only about the facts, but about the way in which we conceive of democracy. Part III will highlight the normative dimension in the debate between these different visions of European integration and democracy. The differences pursued here go beyond the question of accuracy in describing how the Union came about or what it does today. Instead, these disagreements have important normative implications for whether and how judges, bureaucrats, politicians, and citizens should take democratic values into account when interpreting the current European legal order as well as building for its future. The last part is the conclusion.



I. Europa and the IndividualI. Europa and the IndividualI. Europa and the IndividualI. Europa and the Individual
The “liberal intergovernmentalist”6 claim that European integration is the predictable product of deliberate bargaining for common policies and institutional arrangements by states with stable (or at least autonomous) preferences over time has been the subject of much criticism. The complaint lodged by so-called “institutionalists” or “neo-functionalists” against this theory tends to be that liberal intergovernmentalism does not adequately account for the role of the supranational actors in Europe, in particular the Commission, the European Court of Justice, and the European Parliament.7 So far, this debate has been informed largely by rivaling accounts of rational self-interest. On the one hand, liberal intergovernmentalism has argued that interest group politics at the member state level compose the self-interest of member state governments, which, in turn, promote their rational preferences at the supranational level of governance. On the other hand, neo-functionalists and institutionalists have argued that supranational institutions contain sufficient slack to allow supranational actors to act on their own rational (institutional) self-interest and enhance their powers vis-a-vis the member state governments.

The current debate still misses an important dimension of the turn to democracy in European integration. As the next two sections will show, understanding this dimension depends on two insights. The first is that the current state of the Union and its emerging aspirations for the future are in important part the product of what we might call the “democratic recalibration” of European integration, that is, the consistent interpretation in big ways and small of the European enterprise as focused not only on member states, but also directly on the individual. The second is that, to a significant degree, this democratic recalibration has been brought about neither by member state government design nor by individuals acting in their own (institutional) self interest, but by individual actors exercising their discretion and appealing to democratic principle.



A. The Democratic Recalibration of European IntegrationA. The Democratic Recalibration of European IntegrationA. The Democratic Recalibration of European IntegrationA. The Democratic Recalibration of European Integration
Consider the European Court of Justice. From its earliest decisions, the Court has held that the treaty provides rights to, and imposes responsibilities not only the member states, but also directly on individuals. Beginning with the original decisions on direct effect8 and supremacy9 to the decisions a decade later on gender equality10 and the recent decisions on citizenship,11 the Court has repeatedly interpreted the treaty against the recorded wishes of the concerned member state governments and in favor of giving individuals a stake in the process of European integration. Similarly, in the context of market integration the Court has prominently protected individual traders’ economic rights when the political process, which was controlled by member state governments, was stalled.12

This development suggests that the Court has long been committed to identifying individuals, as opposed to member state governments, as the relevant locus of value and concern. The thrust of this recalibration is fundamentally at odds with the conception of the Court as an agent of the member states. Without suggesting the dissolution of member states in a vast singular “demos,” this recalibration represents an important and pervasive shift in focus away from member state governments and toward the inclusion of the individual as the unmediated unit of normative concern. Indeed, this has formed a central part of what has been generally understood as the “constitutionalization” of the treaties.

Recalibrating the treaties around the individual comes naturally for the judges of the ECJ. To be sure, one might have thought that these judges, who are senior members of the national legal profession, would act conservatively and protect the integrity of member states’ “sovereignty.” But here, too, it should really come as no surprise that judges would not follow such a direction. Members of the European Court of Justice are educated in national settings and thus generally more comfortable with domestic constitutional modes of legal analysis than they are with interpreting intergovernmental treaties. Hence, when given the freedom to do so, they may naturally gravitate toward constitutional rather than international modes of legal interpretation. One need not impute sinister motives of self-aggrandizement to explain this tendency. To the contrary, this move is consistent with the basic democratic impulse that views governments not as ends in themselves, but only as means to protecting the well-being of individuals.

Accordingly, the work product of the judges is not the simple reflection of member state government preferences as urged by intergovernmental accounts of the Union. But neither do these supranational actors simply follow technocratic necessities or institutional self-interest, as “neo-functionalism” would generally suggest. To be sure, Member state governments’ preferences and relative power play a legitimate role in the everyday administration of the Union, and they loom especially large in the grand bargains that move the Union along, reintroduce centripetal forces into its architecture, or do both. Similarly, expertise, shared forms of technical reasoning, and institutional self-promotion also play a significant role among bureaucratic actors who are implementing and, in some cases, driving European integration. But the real contribution to European integration of judges, as well as parliamentarians, commission members and other individuals acting at the supranational level, lies not in paying heed to the grand necessities or minute technical logics of European integration. Nor does it lie in the opportunistic exploitation of individual realms of discretion for self-regarding reasons. Their contribution lies elsewhere.

The story of European integration and the role of the individual is as much about what Schiller termed “grace” and “dignity,”13 as it is about rational accounts of preferences and power. In Schiller’s moral aesthetics, grace (or, better, “gracefulness”) lies in the particular manner, in which we carry out goal-oriented tasks. Unlike beauty, which may inhere in the accidental features of an individual, gracefulness is the highly personal product of a subject taking action under certain conditions of freedom.

Since no task is exhaustively determined by its purpose, an actor will invariably shape the execution of a task according to her deepest inclinations.14 Herein lies the realm of gracefulness. Whether we find gracefulness here, further depends on whether an individual’s purposeful action in fact expresses that person’s moral sentiment. In particular, Schiller suggests, gracefulness is the apparent ease with which our ethical inclinations infuse actions that are only crudely determined by the exigencies those actions serve.

Dignity, in Schiller’s view, is the closely related assertion of ethical control over our passions and preferences. This, too, involves a claim of personal authorship. It also involves the assertion of freedom, in this case freedom to reject preference and desire. And yet, in checking desire through a deliberate appeal to ethical reasoning, dignity depends on acknowledging the force of desire.15 Thus, according to Schiller, dignity stands in stark contrast to gracefulness. While dignity is the deliberate (and visible) assertion of ethical control over ones actions, gracefulness is the apparently effortless expression of ones ethical sensibilities in the course of action.16

Finally, dignity and grace come together, in that each depends on the presence of the other. Without the appearance of gracefulness, the successful control of preference and passion may simply suggest dull sensibilities. Conversely, without the appearance of dignity, the pervasive effortlessness of seemingly ethical action may suggest a lack of deliberateness here as well. Thus, while grace indicates the presence of ethical sensibilities, dignity legitimizes the subject as the deliberate author of her ethical actions.17

Consider now the European Court of Justice in the light of these ideas. The language in which we think about judging may, of course, have deep ramifications. And yet, without intimating any particular jurisprudential stance or conclusion,18 it makes sense to think of the judicial enterprise in roughly the following manner: when the judges of the Court interpret the treaty, they are engaged in purposive activity that nonetheless provides them with a certain measure of discretion. The inevitable freedom that inheres in this act of practical judgment, in turn, invites the interstitial expression of the judges’ ethical inclinations. In this way, a judge’s interpretation of the law is constrained and yet becomes her own.

Liberal intergovernmentalism generally ignores this freedom by assuming that the European Court of Justice, along with every other European institution and actor, merely carries out the preferences and goals of member state governments. To be sure, one of these preferences is the credibility of member state commitments. And another may be the designation of a third party to fill in certain gaps. But any discretion and autonomy granted on this model ultimately serves the interests of the member state governments. On this view, then, all “law talk” is understood as purely instrumental (or even epiphenomenal?) to the reliable transmission of political preferences over time. To the extent liberal intergovernmentalism acknowledges the existence of interpretive freedom that runs against the interests of the member states, this freedom must be considered negligible slippage in the gears of national preference aggregation. Only thus can the core claim still hold true: that the rational self-interest of member state governments explains the current state of European integration.

Both “neofunctionalist” and “institutionalist” accounts, in contrast, specifically acknowledge the Court’s interpretive discretion in interpreting the law. Most important, on this view, is the fact that the Court’s judgments interpreting the foundational treaties of European integration cannot be reversed absent unanimity of member state governments, consultation of the Parliament and possibly the Commission, and ratification in the member states. Add to this that the treaties are sufficiently incomplete or ambiguous to allow room for (and indeed to demand) interpretation, and you have what Thatcher and Stone Sweet have identified as a “strategic zone of discretion”19 or what Shapiro calls a “semi-autonomous decisional space” for the Court.20

Neither the appointment process nor the Court’s dependence on member state judiciaries (in the context of reference actions) offers member state governments much control over the E.C.J.’s decisions. As for the appointments process, the collegiate nature of the Court makes it difficult to assign responsibility for a decision to any particular judge. As for the member state judiciary, the Court has famously coopted member state judges by empowering the latter to exercise judicial review (at least more broadly than domestic judges had previously done), engaging member state judiciaries in a dialogue in “legalese,” and professional networking.21 To be sure, the dependence on member state judges has pushed the Court to develop its jurisprudence responsibly, such as developing a fundamental rights jurisprudence and tempering the scope of Community powers (especially under Articles 95 and 308 EC). But both of these latter developments, while in some sense “constraining” the Court, wound up improving the perceived legitimacy of the Court’s jurisprudence and thus ultimately increased the stature of the Court.

The practice of the Court confirms this account. The judges in Luxembourg have routinely availed themselves of the autonomy of decision they possesses.22 As a general matter, the E.C.J. has not decided cases in ways that matched member state preferences or those of any politically powerful subgroup of member states. Of course, one can always assert that member states indicate their agreement with the Court’s decisions by not amending the treaty. But as far as the deliberate presentation of member state preferences to the European Court of Justice are concerned, Eric Stein and, more recently and more systematically, others have confirmed that member state preferences are not generally good predictors of the Court’s decisions.23 The Court is much more likely to follow the Advocate General or the Commission (neither of whom behave as an agent of the member states).

But institutionalists and neofunctionalists who merely stress the Court’s autonomy from member state governments tend to miss something, as well. All too frequently, we encounter here, too, a jaundiced view of individual actors’ motivations. Some scholars, for example, suggest that judges are simply clever opportunists who appeal to purported legal norms solely as a means to promote “their independence, influence, and authority.”24 Others suggest that law is merely a “mask” for “the promotion of one particular set of political objectives against contending objectives in the purely political sphere.”25 And yet others go so far as to accuse the European Court of Justice of a cynical use of legal doctrine merely as a tool to expand its own influence in utter disregard of the values the Court purports to be advancing by such doctrines.26 In general, all this seems to imply that granting supranational actors any “strategic zone of discretion” must be a mistake. Decisional autonomy, on this view, is simply an invitation to another set of actors to engage in self-promotion. In the case of the European Court of Justice, the suggestion seems to be that the Court’s law talk simply has the rest of us fooled. And any beneficial effect of the Court’s judicial “activism” is merely a fortuitous by-product of institutional self-promotion.

Schiller’s understanding of gracefulness and dignity, however, suggests that we should recognize the decisional autonomy of judges (and of other individual actors) as creating an important normative space for ethical behavior. Put simply, the judges of the European Court of Justice can seize their interpretive freedom in good, bad, or normatively neutral ways. They may opportunistically expand their power, randomly create friction in the aggregation of member state preferences, or narrowly appeal to technocratic logics. But they may also bring to bear their personal and professional commitments to such things like democracy, equality, and transparency. Moreover, as Schiller’s distinction further suggests, the judges may do any of this prominently and after great deliberation in landmark cases that seem to challenge the more political branches by prominent appeals to principle, as well as subtly, instinctively, and with apparent ease in the course of everyday adjudication.

This does not suggest that we are at the mercy of a bevy of Platonic judges. But the nature of judging enables the judiciary to become an important interlocutor in a dialogue with the constituted political branches and the public over the meaning of a foundational text--and even secondary legislation. Once judges have rendered their decision, it takes significant political will to undo their handiwork. Moreover, by deciding a case one way or another and setting the backdrop for political action, judges may significantly alter the tenor or scope of the political debate about the primary policy issue. Indeed, as has happened so often in the European Union, the first move of the courts may be ultimately confirmed (rather than undone) by subsequent political action that had previously seemed impossible.

Judging the Court often depends on understanding its freedom in this way. Freedom in legal interpretation and the ethical choices that interpretation demands of individual judges allows us to judge the Court’s work product beyond calling the judgments either legal or lawless. Thus, even when we are satisfied that a decision has remained within the bounds of the law, we may condemn or praise the Court. For example, we may condemn the Court for the apparently self-interested interpretation that the Community lacked the power to accede to the European Convention of Human Rights, even if we are willing to posit that the decision itself was not lawless.27 Conversely, we may praise the Court for acting “not only . . . legally, but also wisely and courageously” as it did in creating a general jurisprudence of fundamental rights at the Community level.28 These kinds of judgments ultimately express approval or disapproval (and thereby acknowledge the existence) of the ethical choices that judges make under certain conditions of freedom in interpreting the law.




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