As a recent Book Review Symposium in the European Constitutional Law Review reminds us, ever since Joseph Weiler published his article ‘The Transformation of Europe’ (1991), the constitutional paradigm with respect to the EU has been dominant among legal scholars. As Weiler defined this position, ‘[t]he constitutional thesis claims that in critical aspects the Community has evolved and behaves as if its founding instrument were not a Treaty governed by international law but, to use the language of the European Court of Justice, a constitutional charter governed by a form of constitutional law.’
In Power and Legitimacy. Reconciling Europe and the Nation-State (2010), Peter L. Lindseth argues to the contrary that European integration is essentially ‘administrative, not constitutional’ in nature. By this he means that, although the EU is characterized by a considerable degree of delegated supranational regulatory power, its legitimacy remains mediated in the sense that it is still ultimately based on the national constitutional orders of the Member States. This separation from power and legitimacy makes European integration suffer ‘from persistent tension, backlash, and even crisis’, especially since the scope of its regulatory power keeps expanding.
Is the situation any better according to adherents of the constitutional paradigm? In an exploratory essay published last year in the International Journal of Constitutional Law, Weiler notes that in analyzing the EU’s democratic legitimacy a distinction is commonly made between process and outcome legitimacy. The idea behind this distinction is that, even though the EU is not yet a full democracy in the statal sense of the word, this is compensated for by particular results achieved, among others, in the economic sphere. Weiler himself, however, is skeptical about these (neo)functionalist theories and argues instead that a third type of legitimation has, since the beginning of European integration, played a much more significant role than has been acknowledged. This legitimation stems from ‘the politically messianic’: ‘In political messianism, the justification for action and its mobilizing force derive (…) from the ideal pursued, the destiny to be achieved, the promised land waiting at the end of the road.’
In the case of Europe, the ideal pursued was that of integration in order to establish long-term peace and reconciliation among former enemies. This ideal was rooted in its two main civilizational pillars, i.e. Christianity and the Enlightenment. Today, however, Europe has become largely a post-Christian society, whereas Enlightenment values also appear to be eroding. As a result, the original political messianism on which the EU was built has collapsed and an alienation with respect to European integration can be witnessed.
In sum, whether one views the EU as constitutional or administrative in nature, its perspectives in terms of democratic legitimacy appear to be rather gloomy. With no easy fixes available, Leiden University’s decision to launch the theme ‘Law, Democracy and Governance: Legitimacy in a Multilevel Setting’ as a core aspect of its research strategy can be considered a timely one indeed.