Introduction

In the third chapter, the focus was on the development of an ‘inside’ approach to the law–governance relationship. Inside theories treat governance as an intra-legal phenomenon, or as part of a process of decentring which has also altered our view of the nature and institutions of law. This shift was characterised through three headings – proceduralisation, experimentalism and reflexive law. All three approaches point to a common challenge to which European law has had to respond – the functional and territorial complexity of the European polity, and the regulatory environment within which methods like the OMC SPSI must live.

Together, these ‘inside’ approaches have produced major conceptual innovations. They may even have contributed towards overcoming what Neil Walker has described as the methodological nationalism of much of European legal scholarship. They have sought to evaluate law not from within a ‘given’ statist framework, but in light of the distinct features of the European polity. They have based their evaluation of methods like the OMC not on the mythical standards (criticised in the second chapter) of a ‘hard’, ‘determinate’ or ‘uniform’ legal order, but on the basis of structural limits already implicit within the EU’s legal system. In this manner, they have allowed inside approaches to provide a positive definition of the law–governance relationship, rather than one that solely posits governance in opposition to ‘traditional’ legal categories (whatever that may mean).

Series editors’ preface

Amongst the burgeoning literature on governance in the EU, work which addresses the phenomenon of ‘new governance’ has begun to diversify in character. No longer does such work simply chart the emergence of new governance styles, noting in particular their utility for steering policy in areas where the member states are reluctant to cede sovereignty and to opt for the more traditional ‘Community method’, such as areas of social policy or even economic policy coordination. Studies are thus no longer always confined to particular sectors, or to descriptive analysis. New work now problematises the concept of ‘new’ governance, questioning what is ‘new’ about it, articulating how governance does or does not differ from the long-established term ‘government’ (always problematic in the EU context), and defining the parameters of an emergent legal theory of new governance. This is the central question of Mark Dawson’s elegantly written new volume, where he brings the concepts of law and governance into synergy and into conversation, rather than viewing them as oppositional concepts or regulative techniques. In that sense, new governance can be studied as an integrated dimension of the composite EU legal order, in a manner which takes into account the polyvalent and multilevel character of that order, with inputs not only from the EU institutions as lawmakers, but also from the member states’ constitutional frameworks and implementation apparatuses. Thus rather than being a study of a system of new governance as such, although along the way Dawson focuses on the so-called Open Method of Coordination as it is used in areas of social policy in relation to the so-called Lisbon strategy for promoting the competiveness and openness of the European economy, Dawson’s work represents a confrontation with a variety of theories which seek to explain the character, scope and nature of the European legal order, which focus in particular on the reflexive and procedural character of law.

While conceptually rich, Dawson’s work also has an interest for a wider audience, in a work that is fully aware of the practical implications of the EU and the member states adopting different approaches to major societal tasks, such as ensuring the sustainability of the welfare state, whilst protecting its key features such as universal coverage, as they have emerged in post second world war Europe. (Social) Law, therefore, needs to be intensely political, without losing all of its essentially normative character. Dawson’s work carefully retreads that well-worn path between law and politics, and between facts and norms.

The rise – and relevance – of new governance in the European Union

In signalling the development of the Open Method of Coordination (OMC) through the Lisbon European Council in 2000, EU leaders were primarily interested in a particular goal – to make the EU, by 2000, the most dynamic economic area in the world. Their actions, however, also triggered a deep and lasting debate regarding the development of ‘new’ or ‘alternative’ modes of governance in the EU: a debate that has found its most recent instalment in the scramble to build a new Lisbon strategy for the decade leading to 2020. The very use of the term ‘new governance’ to describe methods like the OMC already creates the capacity to confuse. What is ‘governance’ anyway and what is ‘new’ about it? What methods of EU law and policy are included under the ‘new governance’ label and which are outside of it? What are the criteria against which new governance methods should be evaluated? These questions will be asked and answered in the first and second chapters of this book.

A more foundational question, however, must also be addressed. Why is the new governance debate a debate fundamentally worth engaging in? What is it about the turn to governance in the EU that makes analyses of these methods important, both for lawyers, and for the broader category of all those interested in EU integration? At one level we should approach this question with a healthy scepticism. As indicated by the Lisbon Council, one of the essential features of methods like the OMC is that they are non-binding. Given that new governance methods do not in most – but by no means all – cases lead to ‘proper law’, why should we then take their procedures and outcomes seriously? (Or, indeed, read a whole book about them!)

Introduction

The last chapter sketched out the skeleton of an ‘inside’ theory of the relationship between governance and law. It is not yet, however, clear what seeing governance ‘inside’ legal categories really means. If the OMC is law, it is unlike most of the laws we see in the EU, or its member states. This comes through in the method’s characterisation as ‘soft’. While the OMC carries forward legal functions, it is not law in the proper sense; it lacks the ability to sanction and enforce conduct which ‘real’ law-making implies. Given these facts, it is easy to see ‘new governance’ as a threat to law-mediated rule, or alternatively, as parallel to the Union’s ‘official’ constitutional structure. It is simpler to adopt a ‘negative’ definition; to see OMC-like methods as external to law, or as elements of a more directly ‘political’ form of rule.

The purpose of the last two chapters has been to dispute and contest this argument. Firstly, there may be significant continuities between hard and soft legal programmes. The association of law with sanction – long an obsession of eighteenth and nineteenth century jurisprudence – is not as relevant as it once was. Indeed it may be a particularly difficult task in the EU context, where the implementation of legal rules also requires the cooperation and consent of national administrative and judicial authorities. The reality of European social law implies not only the rise of ‘new governance’, but the presence of framework directives, social dialogues and other soft methods, which in combination have created a loose legal infrastructure. This implies that the association of legality with hard, determining and hierarchical rules should not be taken for granted.

The EU and political modernity

Studies of the EU across different disciplines tend to divide between those that start from an assumption of continuity and those that start from an assumption of discontinuity. The point of departure for analysing the EU’s legal, political, social or economic character is either a familiar and historical-grounded set of accomplishments, aspirations, practices and concepts; or it is a tabula rasa, with no guarantee how or indeed whether any part of our existing heritage of achievements and ideas will be drawn into the new picture. The present study is emphatically located in the former category. It assumes, and seeks to substantiate the assumption that rather than signalling a break with the paradigm of political modernity centred upon the modern state and its legal and constitutional edifice, the EU reflects and contributes to a variation in the form of political modernity. More specifically, it claims that the deep issues that define, shape and challenge late political modernity in the era of the emergence of polities beyond the state such as the EU remain substantially the same deep issues as defined, shaped and challenged high political modernity in the age of the ‘state system’. The central aim in what follows is to demonstrate how three such defining – and overlapping – issues, and the oppositions and tensions that they generated in politics and in law in the phase of high modernity, continue to frame our understanding of late modernity, so providing important insights into the conflicted role of the EU polity within the constellation of late modernity. In particular, they tell us something significant about the nature and extent of the EU’s historical reliance upon law as a medium of integration, about the dangers and limitations of such reliance, and also, finally, about whether and to what extent such dangers and limitations might be overcome within law itself.

The first and most basic issue that shapes our understanding of political modernity is the development of the very idea of collective agency as the animating source and subject of political community. Indeed, the articulation and operationalization of an expansive notion of collective agency, it is argued, supplies the indispensable threshold condition of political modernity. The canonical modern form assumed by this core idea of collective agency has been ‘the people’ – or popular sovereign – conceived of as a discrete state-centred and state-centring ‘unity of a manifold’. But the arrival of the idea of the people as sovereign leaves open and often contested a range of questions concerning both its internal limits and its external accompaniment. Internally, what kinds of difference and what divisions are consistent with the conception of the people as a single collective agency? Externally, what other political forms, and what, if any, other kinds of political community may emerge and subsist alongside the state conceived of under the sign of popular sovereignty?

Introduction

Times of transition are often more exciting than those of routine and continuity, but they are typically also disorderly and confusing. Old paradigms fade, but new ones only emerge slowly, and their multiplicity leads to protracted phases of co-existence, competition and conflict. The current ‘disorder of orders’ in the conceptualization of postnational law is a signal of such a transition and an indication of its depth. The ‘Westphalian’ system, with its clear separation between domestic and international levels of law and only relatively thin forms of coordination and cooperation in the latter, has broken down under the weight of Europeanization and globalization, but its successor has not been appointed yet. Several candidates are in the race, and one main dividing line – the one this chapter focuses on – is between constitutionalist and pluralist approaches to postnational order. Both of these come in many guises, but they typically differ in their understanding of central structural traits of the legal and political order. While constitutionalists, drawing on domestic inspirations, generally strive for a common frame to define both the substantive principles of the overall order and the relations between its different parts, pluralists prefer to see the postnational realm as characterized by heterarchy, by an interaction of different suborders that is not subject to common legal rules but takes a more open, political form.

This contrast may seem overdrawn; perhaps one should steer a less conflictive path and work towards reconciling these two visions in some form of ‘constitutional pluralism’. But such a conciliatory move would conceal, rather than bring into relief, the theoretical and practical differences that exist between constitutionalist, unity-oriented and pluralist, heterarchical conceptions. Even if in the current debate some of the positions may be relatively close, highlighting the contrast between the two strands will be useful to probe more deeply into their respective foundations and into the choices we face in the conceptualization and construction of the postnational legal order.

The issue of constitutional authority, and more particularly the plurality of claims to legal and constitutional authority, has been a dominant theme of European Union legal scholarship in recent years. The resonance of the topic is evident in many of the major EU developments of the past decade: the momentous eastwards enlargement; the gambit of the unratified Constitutional Treaty; the growing number of national constitutional court challenges to EU authority claims; the likely EU accession to the European Convention on Human Rights; and finally the rulings of the European Court of Justice on the relationship of EU law to the international legal order.

When we were approached by John Haslam, editor at Cambridge University Press, with the suggestion that we put together a book of essays on the constitutional law of the EU, we embraced the opportunity he offered to invite a small number of the leading scholars in the field to write an in-depth essay on this compelling theme. The book is our second collaborative project, coming ten years after the publication of our first co-edited volume on the European Court of Justice.

Introduction

The idea that constitutionalism is central to the legitimate exercise of public power has dominated the modern liberal imagination since the Enlightenment. The ideal of limited collective self-governance has spawned a rich and highly diverse tradition of hard-fought national constitutions from the time of the Glorious Revolution into the present. Today, however, constitutionalism faces its greatest challenge yet: the question of its continued relevance to modern governance. With the explosion of governance beyond the state, many wonder whether constitutionalism as we know it is being marginalized or altogether undermined.

The dilemma of constitutionalism in the age of global governance has elicited two principal responses – one local and one global. On the one hand, there are those who, alarmed by the threat of global intrusion, have sounded the retreat into local constitutionalism as the only source of legitimate public power. Local constitutionalists (or ‘new sovereigntists’, as they are sometimes called) deny the normative pull of international, transnational and global governance by anchoring all legal authority in local (i.e. national) constitutions. The realm beyond the state is, on this view, pure power politics with resort to legalism as a simple tool of self-interest alone. On the other hand, there are those who view global governance optimistically as overcoming the inherent limitations of local constitutionalism. The strong version of this second response seeks nothing less than to redefine constitutionalism itself by placing the local in the service of the global. These global constitutionalists view the state simply as playing one particular role within a rational design for a comprehensive system of multi-layered governance that spans all issues and all people around the globe.

Joseph H. H. Weiler and Bruno de Witte

JW: I would like to query the revision clause analysis which seems the apex of Section 1.3 of your chapter dealing with the relevance of the practice of the Member States in resolving the issue – international, yes or no.

At its heart the argument seems to flow as follows. In general international treaty law, revision is flexible and subject to a normal default rule of amendment by unanimity of the contracting parties. In concluding a treaty, parties may, however, specify a different revision procedure which, as is often the case, may provide for flexibility such as amendment by majority rather than unanimity. In the EU, by contrast, the revision provisions agreed by the parties are rigidified: not only is unanimity required, but further restrictions apply, such as the involvement of the EU institutions and ratification by each state according to its own constitutional requirements. Further, you correctly point out that, whereas under general international treaty law, the High Contracting Parties of a treaty can effectively amend it by a new treaty, riding roughshod not only over the provisions for conclusion under which the original treaty came into force, but even riding roughshod over the revision provisions in the original treaty. States, as you point out, are Masters of the Treaties they make, both as to form and as to substance. By contrast, you point out, under the EU, the Member States do not have this freedom of form. They must follow the procedural rules in the EU treaties in order to revise them. At least procedurally, they seem to lose something of their ‘mastery of the treaty’.

Introduction

In a recent essay about legal theory and the European Union, Neil Walker wrote that theoretical inquiries about EU law as a whole – as opposed to studies of specific parts of EU law – ‘cannot but draw upon an arsenal of concepts and theoretical mechanisms developed or refined in an older context in which the national and the international, with the former dominating, were the two sides and the key frames of the world order of states’. This Chapter aims to replace the European Union in the ‘older context’ of international law, by recalling the fact that the European Communities, and the European Union, came into being as creatures of international law, as well as the fact that the many remarkable institutional features of those organisations came out of the existing toolbox of international law. Each of those single features had been experimented with before in other more limited contexts, but both the European Coal and Steel Community Treaty and the European Economic Community Treaty combined them in an unprecedented way. They were true experiments of international law, and the first part of the chapter will highlight some characteristics of that historical experimentation.

The more interesting question, perhaps, for today’s reader is whether this ‘arsenal of concepts and [. . .] mechanisms’ drawn from the toolbox of public international law is still of decisive importance for our understanding of European Union law today. There is no disputing the fact that ‘the EU has successfully expanded its substantive mandate and institutional prerogatives to a level without parallel among international organizations’, but there is some dispute about whether it is still situated ‘among international organizations’ or has ceased to belong to that category. In fact, the dominant strand in the EU law literature takes the view that the European Union, whilst not a federal state, is also no longer an international organization, but rather an ill-defined sui generis legal construct. In this chapter, I will question both the vagueness of the sui generis construction and the view that the EU is no longer an international organization (and thus no longer an ongoing international legal experiment) by wondering, in the second and third parts of the chapter, what could have happened in the course of time, between the 1950s and today, to make EU law cease to be part of international law despite its international treaty pedigree. I will address that question from two points of view. First (that is, in the second part of the chapter), I will examine the practice of the states, and especially the Member States of the EU, to explore whether they have willed, or consented to, such a change in the legal nature of the EU. In the third part of the chapter, I will turn to examine the case-law of the ECJ (European Court of Justice) and the doctrinal interpretations of that same question and consider two possibilities: either that particular novel characteristics of EU law emerged over time which are incompatible with seeing it as an international organization; or that the overall development of the EU, rather than the development of specific characteristics, justifies the view that it must no longer be considered as a living international legal experiment, but as something altogether different.

Global Constitutionalism and Constitutional Pluralism:

Like an infectious virus which simply develops new resistant strains when we think we finally have it under control, so it is with <Constitutional> <kɒnstɪ’tuʃənl>. The most recent academic pandemic, particularly virulent (cerebral indigestion being one of its milder symptoms) is the result of a genetic fusion of the ubiquitous Global Constitutionalism and Constitutional Pluralism strains which dominated the 1990s and 2010s. Global Constitutionalism is already, at least in the eyes of some, a discrete academic discipline, with a soon to be published Journal of Global Constitutionalism, with various masters’ degrees, treatises and the other usual accoutrements. Constitutional Pluralism is today the only party membership card which will guarantee a seat at the high tables of the public law professoriate. From my vantage point of editor-in-chief of the deliciously and ambiguously entitled International Journal of Constitutional Law (I∙CON) I have begun to wonder: Is there anyone out there who is not a constitutional pluralist? Who does not believe that the global space is in some form constitutionalized?

I do not recall ever using constitutional pluralism in my own writing, but like M. Jourdain, I was instructed that I too, apparently, converse in the prose of constitutional pluralism, which, paradoxically makes me (and everyone else) a comfortable Bourgeois gentilhomme. That, of course, is the price of success of a concept/fad: what begins as heterodoxy becomes prevailing orthodoxy, in this case when Constitutional Pluralism (the maverick constitutional pluralism strain) suddenly emerges as hopelessly politically correct.