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					   Active Welfare, Experimental Governance, Pragmatic Constitutionalism:
                     The New Transformation of Europe

        Charles F. Sabel (Columbia Law School) cfs11@columbia.edu
     Jonathan Zeitlin (University of Wisconsin-Madison) jzeitlin@wisc.edu

Draft prepared for the International Conference of the Hellenic Presidency of
 the European Union, “The Modernisation of the European Social Model &
      EU Policies and Instruments”, Ioannina, Greece, 21-22 May 2003



Introduction

       The EU is – as ever – at a crossroads, unsure of where to turn in familiar debates about
the legitimate and effective distribution of powers among citizens, Member States and the Union.
But connected changes in the political, administrative, and intellectual setting of these debates
are increasing chances for a new institutional and constitutional compromise which may
transform, again, the meaning of law and democracy in Europe.

       To build an integrated continental market the Member States sacrificed some of their
power to veto Union regulation. In return they got assurance that the regulatory choices
submitted for their final approval would be shaped by a public-regarding process that filtered out
proposals chiefly motivated by narrow political or economic self-interest. The organization and
prerogatives of the Commission and its adjuncts in relation to the Parliament, Council, and Court
– the Community Method – provided that assurance. This compromise transformed the EU from
an association of states into a single legal community whose integrity was ensured by the
European Court of Justice. Until now this community has worked well enough to assuage many
of the most pressing concerns about its democratic legitimacy.

       The potential new compromise regards the social dimension of the single market. Faced
with the urgent, politically imperative task of reconstructing, separately but harmoniously, their
welfare states, the Member States would relax the power accorded them by the treaties and
Community Method to block EU intrusion into ―Social Europe.‖ Again they would insist on
institutionalization of a public-regarding process of agenda setting. This time that process would
be embodied in new forms of experimental governance: the commitment to proportionality or
framework legislation; comitology; networked administrative agencies; and the open method of
coordination; all underpinned by transparency as a procedural safeguard. These permit
exploratory learning within and among Member States by contrasting different problem-solving
strategies, each informed with a particular idea of the good, with the aim of both improving local
performance and creating frameworks for joint action at the Union level. Through the
ramifications of experimental governance, this compromise could transform EU lawmaking
again, integrating it more fully into civil society. At the limit the compromise would help
establish the EU as a directly-deliberative polyarchy: a form of pragmatist democracy that sees
agonistic conflict over ideals of the good and problem solving as so indissolubly connected that
effective learning becomes institutionalized in the continuing exploration of justice.

       Broad political changes motivate the search for the new compromise as the means to
renew social solidarity both nationally and in the EU. Mutually reinforcing constitutional and
administrative innovations give institutional form to the compromise. A coincident redirection of
constitutional theory suggests its legitimacy. We consider these developments in turn.


I. Rethinking the European Welfare State

       Through the 1980s and much of the 90s, the right and the left had sharply different views
of the construction of Europe in relation to developments at the national level. On the right, the
European project could be seen as extending and reinforcing national programs for increasing
economic competitiveness. From the British perspective, the single market and the single
currency bolstered deregulation and privatization. In the Franco-German variant they created a
peaceful Grossraumwirtschaft. By extending markets while protecting them from intrusive
regulation, the Member States made their economies more competitive and regained in pooled
form sovereign capacities that were under threat when exercised separately.

       The left mistrusted European integration for the same reason that the right embraced it.
For social democrats, the single market redoubled domestic challenges to national welfare states.
The single currency was the emblem of this fear. It replaced the national macroeconomic
steering capacity upon which Keynesian full employment policies had depended with a rule-
driven, politically unaccountable regime that favored stability over growth. The challenge for
social democrats was correspondingly to make the institutions of the EU as mindful of solidarity


                                             2
as the national welfare state had been. Put another way, their task was to create a market-
correcting regulatory authority whose boundaries matched those of the single market itself. The
name for this EU corrective to the deregulatory pressures on domestic markets was Social
Europe.

        In the last few years, surprisingly, the left and the right are beginning to converge on the
idea of using Europe as an instrument by which the Member States may learn jointly to
reconstruct in compatible ways their systems of social protection. This convergence reflects
deep changes in the partisan allegiance of large blocs of voters on both sides and manifest limits
to traditional party programs. The upshot on the left as well as on the right is a novel centrist
populism: centrist both because the electorate in each ―camp‖ combines components from the
middle and working classes and because both camps define themselves programmatically in
opposition to the classic left-right big government/minimal government divide; populist because
the top leaders on both sides promise the electorate to abolish the old system of pluralist political
bargaining and corporatist interest-group mediation; and novel because the leaders of this centrist
populism promise to make the core institutions of the welfare state effectively serve all citizens,
rather than to redistribute wealth from the big people to the little.

        The precise causes of these developments, and in particular their relation to new sources
and distributions of risks affecting the life-chances of individuals and families, are far from clear.
Still more uncertain are the extent and robustness of this political reorientation: there is no telling
whether these changes express a deep trend in the evolution of mass democracy or whether they
reflect a transitory disturbance of a more enduring constellation of social and economic forces.
Setting these large questions aside, we here sketch the development of the new centrist populism
on the left and the right, and indicate how European integration has come to figure in their
respective efforts to revitalize solidarity without recourse to traditional parties.


        The Left: Beyond Social Europe

        The proven inability of the Keynesian welfare state to secure full employment and
prosperity during the 1970s and 80s posed a double problem for European social democracy.
Programmatically, it had to find a new approach to securing social solidarity and inclusion.
Politically it had to distance itself from the trade unions and other clienteles deeply committed to



                                               3
the existing machinery of the welfare state, while attracting new voters to compensate for the
loss of the old. The response to these two problems led to a transformation of social democracy
along four dimensions.1

           The first and most salient is programmatic: the search for ―third ways‖ between neo-
liberalism and the Keynesian welfare state. In conceding the limits of the traditional welfare
state, social democratic parties waver between recalibration of the existing social security
systems and addressing the problems of social precariousness through the provision of new types
of services. Recalibration assumes that most of the risks citizens face are insurable, but that the
current insurance systems, rooted in a bygone economic and social reality, provide spotty
coverage of contemporary hazards, while unfairly matching contributions and benefits.2 ―Less to
the fathers, more to the sons‖ (Rossi 1997) is a representative slogan. The service provision
strategy assumes in contrast that the risks are non-actuarial: it is impossible to estimate their
distribution precisely enough to insure against them. What is therefore required is systematic
risk reduction: giving citizens through lifelong education and training and many other social
supports the capacities to cope with the vicissitudes they face. To emphasize that the citizen is
no longer a passive recipient of insurance benefits, but an independent co-producer of her own
security, this service-oriented ―capabilities‖ approach is often associated with the idea of an
active welfare state.3 Very generally speaking, the early stages of these ―third way‖ reforms
tended to emphasize recalibration, while later ones accentuate the active welfare state, but there
are of course many exceptions and overlaps.




1
    The most comprehensive analysis is Gerassimos Moschonas‘s In the Name of Social Democracy: The Great
     Transformation: 1945 to the Present (2002). The subtitle refers to Karl Polanyi‘s classic account of the ―great
     transformation‖ of the nineteenth century as the disembedding of the economy from the surrounding society and
     its establishment as a putatively self-regulating market order. In an analogous way, Moschonas argues, European
     social democracy has been separated from the stock of the popular classes to become a sort of epiphyte, more
     dependent on shifting political currents aloft than on the vitality of the taproots below. Moschonas is more
     insightful about the changes in social democracy‘s electorate and internal organizational structures than its efforts
     at programmatic renewal.
2
    The boldest and most comprehensive effort to ensure against the current globalized distribution of risks to
     individuals and nations by broadening risk pooling and using derivatives to fill in missing insurance markets is
     Shiller (2003). For a conceptually similar effort by a leading expert on labor rather than financial markets to
     redesign unemployment insurance as ―employment ensurance‖ as part of a broader shift from ―ex post social
     policy‖ to ―ex ante social risk management‖, see Schmid 2002.
3
    See, for example, Vandenbroucke 2002; Supiot 2001, 2002, 2003; Salais 2003.



                                                         4
           The other dimensions concern changes in the social democratic electorate and internal
party structure. The most important of these is the increasingly interclass character of European
social democratic parties. Typically, they have lost voters in the manual working classes, while
gaining them in the new white-collar, technical, and professional strata, often linked to the public
sector. Whereas the epicenter of the pre-transformation social democratic party circa 1960 was
the skilled craftsman working in a large private firm, by the late 1990s she was increasingly
likely to be a white-collar employee of a large public bureaucracy.4

           The third dimension of change concerns the (contestable) redistribution of power in
social democratic organizations away from party officials and activists towards mediagenic
leaders and their expert advisors. The shorthand here is the ―Americanization of politics‖: in a
world where traditional local associations such as union branches and political clubs matter less,
direct appeals by leaders to potential voters via television matter more. The leader‘s personality
becomes a central issue in the campaign and power flows to the inner circle of experts who
manage the daily flow of political information to the public, even if the coterie‘s power can still
be challenged by party activists.5

           The fourth dimension of change, part cause and part effect of the previous ones, concerns
the voters‘ relation to the party program. The traditional social democratic voter could
reasonably assume that he knew what the party stood for and that in office it would act on its
values. The contemporary social democratic voter can assume neither. She and her family and
friends may have voted for another party in a recent election or may do so in the current one.
Because she has no reflexive confidence that her values and interests are aligned with those of
the party‘s, she is critically attentive to its programs and to evaluation of its performance in
government. Loyal members have become a critical, often fickle public insistent on the leader‘s

4
    The same was even more true of party membership. For example, in the German SPD in 1952, 56% of members
     were manual workers compared to 23% of employees and executives; by 1996, the percentage of workers had
     dropped to 35%, whereas that of white-collar employees approached 60% (Moschonas 2002: 120). Conversely,
     the increase in middle-class adhesion has been offset by an average decline of 20% in social democratic parties‘
     share of working-class votes between the 1960s and the 1990s. Today, European social democratic parties attract
     between 40 and 60% of the working-class vote. Thus, ―it is no longer a valid generalization to say that social-
     democratic parties are parties of the working class‖ (Moschonas 2002: 115).
5
    Moschonas points out activist groups ranging from traditional entrenched interests to insurgent currents fighting
    for a voice in the party‘s decision-making can occasionally force the national leadership to justify its positions in
    public and to revise its programs. Indeed, it is unclear whether the strength the new leadership draws from the
    declining influence of the membership and bureaucracy is not outweighed by the loss of authority that comes with
    the end of the political party as social community.


                                                        5
constant assurance that their allegiance is not misplaced and periodic concrete proof that deeds
match words.

           But what is social democracy thus transformed really up to? Is the ―third way‖ just a
mask for deregulation with a human face? Or is it on the contrary a mask for an abiding
commitment to traditional forms of social concertation and redistribution? Should it be taken at
face value as a sincere and sometimes successful effort to define a new model of social solidarity
adapted to current circumstances? Or, mixing form and substance, is the new social democracy a
novel populism, creating procedures that aid the search for effective reform while increasing the
citizens‘ autonomy by freeing them from the mediation of interest groups and parties?
Alternatively, is the new social democratic populism merely a technique of political
management, compatible with both the cynical reading of the ―third way‖ and with the view that
social democracy is sincerely and effectively reforming itself?

           There is something to each question. Anyone who can‘t think of examples of social
democratic parties abandoning traditional commitments and manipulating the language of the
―third way‖ or ―new center‖ to ―triangulate‖ the preferences of an interclass public for electoral
advantage simply hasn‘t been reading the newspapers. The resurgence during the 1990s of
negotiated adjustment through tripartite social pacts between unions, employers, and the state
gives credence to the view that talk of the ―third way‖ masks pursuit of traditional policies, as
does the persistently high share of public social spending in the classic social democracies of
continental Europe and Scandinavia (though it is unclear how far this aggregate measure reflects
the persistence of old programs as opposed to redeployment of traditional funding sources for
purposes of reform).6 But ―triangulation‖ and tradition are plainly not the whole story. Thus, for
example, it is widely agreed that under social democratic auspices the Netherlands has better
matched the needs of contributors and beneficiaries of social insurance funds to accommodate
the increasing importance of part-time and temporary work, while Denmark and Ireland have
each created ―activation‖ policies that reduce the risks of emargination for the currently
employed and increase the possibilities of integration for those without work. Finally, Tony
Blair in the UK embodies both faces of the new social democratic populism. He is the archetype

6
    At the limit, this second view sees some social democratic governments – in the UK for example – as using the
     rhetoric of the ―third way‖ to achieve ―redistribution by stealth‖ (Rhodes 2000). In contrast, until his fall Jospin
     was cited as a social democrat who continued to pursue redistributive goals in the open (Levy 1999).



                                                         6
of the new party leader ruthlessly crushing internal party opposition and ruling through a
camarilla of expert advisers. But he is also the architect of devolution to Scotland and Wales, the
reconstitution of elected metropolitan authorities, the stepwise constitutionalization of the British
polity, and the empowerment of the citizen-client in dealing with a modernized public
administration (Mair 2000, 2002; Blair 2002).7

           The social democratic parties in most of the EU‘s Member States have at one time or
another validated all these views. Indeed, continuing conflict over which position to embrace
and for how long has all but paralyzed the social democratic parties in most European countries.
Given the political complexities of abandoning some traditional clienteles while prospecting for
new electorates and the outright strategic uncertainty about how best to respond to the new
environment, it could hardly have been otherwise. But the blockages and vacillations at the
national level have not completely obstructed efforts to renewal social democracy locally and in
the EU.

           The local reforms have typically exploited the space created by administrative
decentralization to involve civil society actors – especially NGOs and the users of particular
public services – in the determination of how the relevant policies are to be pursued and in the
evaluation of their effects. The success of some of these efforts periodically provoked
speculation about their generalization, but the confusion and power struggles at the center as a
rule prevented incorporation of such ideas into national party programs.8


7
    Frank Vandenbroucke, Belgian Minister of Social Affairs and Pensions, represents a strikingly different variant of
     the new social democratic populism. At the European level, he is a key figure in the debate on the active welfare
     state and the governance innovations associated with it. Domestically, his Flemish Social Democratic Party is
     weak and becoming weaker. Vandenbroucke responds in part by trying to concretize his welfare reform program
     through writings that personalize citizen‘s experiences with public administration so as to establish a direct
     relation between his ministry and the electorate. His writings and speeches, like those of Blair, are more likely to
     refer to general moral principles than to party precept.
8
    Contrast, for example, Piva‘s (2001) matter-of-fact discussion of the participation of local unionists, NGOs, and
     citizen-users in defining and monitoring quality standards for the delivery of public services through piani sociali
     di zona mandated by Italy‘s Ulivo government as part of the federalization of the welfare state during the late
     1990s with the insistence by one of its leading political advisors that the center-left‘s strategy for promoting local
     development should revolve around automatic tax credits for eligible projects rather than ―negotiated planning‖
     through ―territorial pacts‖ (Rossi 2001; for a defense of the territorial pacts, see also Trigilia 2001). In France the
     relation between localized innovative alliance-building and the central party program was less confrontational but
     still unresolved. On the one hand, leaders of the French Socialist Party had embraced administrative
     decentralization and delegation of local service delivery to nonprofit organizations during the 1980s (Ullman
     1995); for local partnerships and experimentation with the ―territorialization‖ of social inclusion and employment
     services in France during the 1990s, see Le Galès 2001, Palier 2002; and for French efforts to improve the quality
     of public services through the creation of local joint committees of providers and users, see Rosenberg and Carrell


                                                          7
           EU institutions in contrast offer social democrats a forum for discussing experiences and
projects free of the internal factionalism and routine partisan confrontations familiar at home. At
the same time, EU policymaking serves as an instrument for systematically exchanging
information about the practical workings of programs that can discipline reform debate. This
social democratic engagement with policymaking and governance in the EU fuses with and
transforms the longstanding project of correcting the deregulatory bias of the single market. The
upshot is that between the mid-1990s and the present the EU became the place where social
democrats can most explicitly review and productively advance the search for a new form of
social solidarity beyond the traditional welfare state.

            A key step in the emergence of this European forum came in 1997 with the negotiation
of the Employment Title of the Amsterdam Treaty and the creation of the European Employment
Strategy (EES) at the extraordinary Luxembourg ‗Jobs Summit‘. Both drew on the efforts of
social democrats within the European Parliament, in the Member States (especially Sweden,
which had just joined the EU) and sympathetic figures within the European Commission
(notably Allan Larsson, the Director-General for Employment and former Swedish finance
minister) to find a post-Keynesian solution to persistently high levels of unemployment based on
active labor market policies. The treaty Title gave the promotion of a high level of employment
quasi-constitutional status by making it an EU objective and established the EES as the process
by which the Member States both separately and together would elaborate the means to this end.
Under this process, the Member States annually assess the adequacy of their domestic policies
against commonly agreed guidelines and indicators, and propose improvements. The resulting
national action plans are peer reviewed and good practices exchanged; periodically, the
guidelines and indicators are in turn revised in light of the lessons learned in their application.9



    2002. On the other hand, the Party continued to press for and sometimes obtained traditional social democratic
    measures of macroeconomic stimulation and solidarity such as the 35-hour week. Simultaneous pursuit of such
    competing approaches was among the causes of the immobilism toward the end of Jospin‘s ―plural left‖
    government, which contributed to its unexpected defeat in the 2002 elections. For a comprehensive attempt to
    rethink the production and delivery of public services in terms of deliberative participation by user groups in
    framing objectives and evaluating their implementation by local providers, see Mommen 2002.
9
    The EES also drew selectively on ideas developed in Commission President Jacques Delors‘ White Paper on
     Growth, Competitiveness and Employment and the employment action plan adopted at the 1993 Brussels Summit,
     which established a common set of priorities and provided for an annual review of Member States‘ policies by the
     European Council (the so-called Essen Process initiated the following year). But as van Riel and van der Meer
     (2002) emphasize, this ‗social democratic advocacy coalition‘ nonetheless played a critical role in overcoming


                                                      8
        The Lisbon socio-economic summit of March 2000 built on this foundation. In Lisbon,
the left effectively abandoned its old hopes for a single Social Europe and turned to the idea of
the EU as fomenting continuous adjustment among its diverse national welfare states. The
Lisbon Strategy, formulated under the aegis of the Socialist Portuguese government, extended
the scope of the EES‘s search for an ―active and dynamic welfare state‖ beyond the labor market
to areas such social inclusion, education and training, R&D, enterprise promotion, structural
economic reform, and the modernization of social protection. Abstracting from the procedural
particulars of the EES, it defined the ―Open Method of Coordination‖ (OMC) as a general
instrument for advancing common European objectives while respecting national diversity
through benchmarking, monitoring, peer review, exchange of good practices, and the joint
elaboration of performance indicators.

        These developments drew on and in turn accelerated a dramatic reorientation in the
thinking of social democratic academics about the impact of European integration on the welfare
state. Influenced by the advance of neo-liberalism in the 1980s, and especially by the example of
Margaret Thatcher‘s Britain, academic debate about Social Europe for most of the 1990s
assumed a constitutional disparity between the strong protection of negative or market-making
rights and the neglect of positive, market-correcting rights. The result was thought be a race to
the regulatory bottom, and the proposed solution was the creation of ‗Social Europe‘.

        During the mid-1990s, the terms of the debate shifted as three key findings undermined
the background assumption of a structural or constitutional disparity, at least in its stark initial
form. First, there were few if any clear cases of regulatory races to the bottom, and in some
cases there was even evidence of regulatory races to the top. This surprising outcome was linked
to the new approaches to social and economic policies discussed above, which in turn proved
part of a broader constellation of regulatory innovations in areas such as environment and health
and safety (Héritier, Eichner).

        Second, theoretical expectations notwithstanding, the reorganization of labor markets led
not to the contractualization of employment regulation, but rather to reregulation by new means.
The spread of autonomous forms of work where the worker is not directly subordinated to the

  political resistance to incorporating the Employment Title into the Treaty and institutionalizing the benchmarking
  and monitoring arrangements of the EES.



                                                     9
employer and tasks are not necessarily executed at a formally designated ―workplace‖ did indeed
undermine traditional collective bargaining and administrative oversight. But the regulatory
gaps thus opened were filled at least in part by legislation at the national level and more
haltingly, by EU directives and framework agreements establishing principles and minimum
conditions for governing the new forms of ―atypical‖ employment. In this case, too, therefore,
the EU has come to seem somehow less constitutionally adverse to, or more permissive of,
market-correcting regulation than first feared.

       Finally came the discovery that there is not one welfare state in Europe, but at least three
broad welfare-state families. If Denmark, Ireland, and the Netherlands were adjusting well to the
new distributions of risk, why were other apparently similar welfare states unable to do likewise?
This question immediately drew attention to an influential body of research on the historical
origins and political trajectories of the European welfare states dating to the late 1980s and early
90s. Esping-Andersen‘s The Three Worlds of Welfare Capitalism (1990), had distinguished
continental (Bismarckian or corporatist), Anglo-American (liberal or residual) and Nordic (social
democratic or universal) models. Until the mid-1990s the development of these regimes seemed
path-dependent, a direct consequence of the accidents of their creation. Thereafter, some
members of each family began to learn from the others. How? Why?

       All this prompted a reconsideration of Social Europe. If the European constitution was
less inimical to social protection than initially feared, there was a less urgent need to create a
constitutional counterweight to the four freedoms of the single market. Moreover, if each family
of European welfare states was adjusting to change in its own way, then it would be plainly
misguided to create a uniform substitute for the national welfare state at the EU level. But these
same developments suggested that Europe might serve in a new way to enhance social protection
in a period of increasing uncertainty and diversity by creating a forum for the discussing and
generalizing the results of the different national strategies of adjustment.

       This shift has been conceptualized in two ways, even if many writers combine elements
of both. The first sees the Social Europe of the new governance as a way-station on the road to
overcoming the EU‘s legal bias in favor of negative integration. In Scharpf‘s pointed version,
the initial constitutional disparity exacerbated the differences among the welfare-state families,
whose systems of social protection might have been harmonized within a more balanced


                                              10
framework. The self-reinforcing mechanisms of path-dependent development so enlarged small
initial differences that one-size-fits-all lawmaking is now precluded at the European level. But
experimental governance, the argument continues, allows exploration of innovative solutions
otherwise unavailable at the national level or in the formal EU decision-making process. Once
identified ‗informally‘, these solutions can be incorporated into EU law, redressing as they
accumulate the EU‘s constitutional imbalance (Scharpf 2002a, 2002b).10

           The second view takes the differentiation of the welfare-state families as the historical
result of particular social and political struggles in specific national contexts. In the century from
roughly 1870 to 1970, these conflicts despite their specificity were held to be intelligible as
instances of the class struggle between labor and capital; and the welfare state in its different
manifestations was seen as a way of domesticating this enduring clash. Today, in this view, all
of these different welfare states are fundamentally challenged not so much by class conflict as by
an increasingly volatile and diverse environment: almost an uprising of nature against the hubris
of human striving, manifesting itself as an explosive increase in the riskiness of social life. The
only answer to the general increase in risk is concerted social effort to control the new sources of
danger. Hence the shift in focus from recalibration of actuarial risk insurance to systematic
activation of the welfare state as the means of risk reduction.

           This shift leads to a heightened attention to institutional learning, and especially learning
from and through the comparison of difference. This is a radical break from traditional thinking
in these policy areas, given that policy learning has typically been conceived as looking
backwards (to closing the gap between one‘s own expectations and the outcome), not looking
sideward (to what others are doing). A further consequence is an increased emphasis on the need
for an effective public administration able to help citizens manage the new risks to which they
will be exposed at work, in family life, or simply as living beings afoot on the planet. It follows
from this emphasis on continuous learning and institutional reorganization that this school
inclines to see the new governance less as a way-station towards a normalized Europe in which
positive and negative rights are equally respected than as an enduring feature of a polity that


10
     Ideally, in Scharpf‘s view, the OMC would be constructed in such a way as to allow the most intense exchanges
     within families of welfare states, whose similarity in his view is the condition for heightened possibilities of
     mutual learning. The learning thus occasioned could then be rendered into law and made mutually binding by
     invoking the Treaty provisions allowing for ‗enhanced cooperation‘ among like-minded Member States.



                                                       11
learns through coordinated but decentralized experimentation to bear the changing risks to which
it is exposed.11

           One variant of this school sees the organizational model for the adaptive welfare state in
the private corporation and analogizes citizens to consumers. It tends to be leery of social
welfare rights, preferring instead to grant citizen/customers the resources they need to purchase
effective services from competing providers – some public, some private – in the market.
Another variant, however, shares the first school‘s concern that the new governance encourages
a dispersion of authority that subverts the rule of law, and with it constitutional democracy as the
natural habitat of the welfare state. It worries too that although the origins of the current
situation are not intelligible in terms of ‗class‘, the outcome of the reorganization – a more or
less inclusive, egalitarian society – will be. It emphasizes therefore citizenship rights, both as a
collective good that manifests our mutual obligations and also as an effective means by which
individuals protecting their own interest before judges can improve the services provided to all.12
In conceptualizing these rights, this variant turns to what might be called the moralization of
politics: the invocation of very general principles of justice or fairness (such as those articulated
by John Rawls or Amartya Sen) to guide reconstruction of the institutions that powerfully shape
citizens‘ life-chances.13 As we will see in a moment, the constitutional theorists are elaborating a
new kind of constitutionalism that responds to these problems not by appeal to firmly-fixed first
principles but rather by institutionally connecting the re-elaboration of fundamental rights and
values to the learning enabled by the public experience they shape.


           The Right: Reforming Rather than Rolling Back the Welfare State

           The right too is in turmoil. The Christian Democrats in many countries were too
implicated in the compromises, clientelism, and corruption of the traditional welfare state to


11
     This emergent conceptualization was embodied in two key reports: Ferrera, Hemerijck, Rhodes, The Future of
     Social Europe: Recasting Work and Welfare in the New Economy: commissioned by the Portuguese Presidency in
     the spring of 2000, and published as a book in Portugal that year; Esping-Andersen with Gallie, Hemerijck, and
     Myles, report on ―A New Welfare Architecture for Europe?‖, commissioned by the Belgian Presidency for the fall
     of 2001, and published by Oxford in 2002 as Why We Need a New Welfare State with a foreword by
     Vandenbroucke).
12
     For the distinction between these two variants, see Gazier 2003. Supiot (2002, 2003) in particular has insisted on
     the crucial role of the judge or ―third party‖ regulator in the adjudication of such rights.
13
     See, for example, Vandenbroucke 2001, 2002; Esping-Andersen 2002; Ferrera and Hemerijck 2003; Salais 2003.



                                                       12
survive its transformation. The hard-edged neo-liberal right that emerged to challenge their
corporatist entanglements in the 1980s had a project only until the battle against the most
traditional big government was won. Once the question became not whether but how to reform
the welfare state, the free-market right had little compelling to say. The driving force for
renovation on the right today is the new populism that has erupted in one country after another
since the early 1990s. Where the counter-intuitive aspect of the new social democracy is its
inclination to a novel populism, the counter-intuitive aspect of the new populism is its aspiration
to reform not dismantle the welfare state. This new populism of the right exerts a
disproportionate influence by drawing the disoriented remnants of Christian Democracy and neo-
liberalism into its orbit. An emphasis on reconfiguring welfare services through broad
consultation with civil society is beginning to link populist criticism of privilege with a Christian
Democratic reinterpretation of local solidarity on the one hand and the neo-liberal preoccupation
with efficient individual choice on the other. Thus reconfigured, the right or parts of it can
recognize affinities to the social democrats‘ project of an active welfare state. This section traces
the emergence of the new populist challenge, the mainstream right‘s response to it, and the
halting reorientation of the right at the EU level to these developments.

The New Populist Challenge
           The most significant of the new right populist formations, in rough order of historical
appearance, are the National Front (FN) in France, the Progress Parties in Norway and Denmark
(succeeded by the Danish People‘s Party in the latter case), the Austrian Freedom Party (FPÖ),
the Lega Nord in Italy, the Swiss People‘s Party (SVP), and the List Pym Fortuyn in the
Netherlands.14 These movements began in many countries in the way the populist revolts of the
last century and a half often did: as a uprising of small business people and the self-employed
who put their faith in free markets but see themselves as victimized by taxes and regulations that
discriminate in favor of a cartel of (often regionally or ethnically distinct) state officials and
private elites. The surprise is that the movements have not ended there. One crucial
development has been the incorporation of substantial numbers of working-class voters, many of


14
     The Vlaams Blok (VB), the nationalist party of the Flemish community in Belgium, resembles these other new
     right populist formations in origin and social composition. Whereas the others have typically become less neo-
     liberal and occasionally less xenophobic than they were originally, the VB has not (Swyngedouw and Ivaldi 2001;
     Kitschelt 2002: 185-6).



                                                     13
them disappointed refugees from social democracy. There is little doubt that the electorate of the
new populist parties is at least as ―popular‖ today as that of their social democratic rivals.15

            This has gone hand-in-hand with an increasing emphasis on improving welfare-state
services rather than restoring a self-equilibrating market order by rooting out privilege and
corruption.16 While the FPÖ, for example, had initially confined itself to denouncing the
exploitation of the Austrian welfare state by ―social parasites‖, by the late 1990s, it was
demanding constitutional protection for existing pension rights, a new form of child allowance,
and a minimum wage. Today, the party‘s program calls for a ―just and solidaristic community of
risk‖, based on a careful and continuous calibration of welfare benefits to social needs, while its
Minister of Social Affairs and Federal Vice-Chancellor Herbert Haupt vaunts measures aimed at
assuring an ―integrative workplace‖ as part of the European Year of the Disabled.17

            The Danish People‘s Party (DVP) is an especially clear example of these broader trend.
It originated in a neo-liberal tax revolt, but split off from the Progress Party in 1995 to focus on
opposing immigration and Danish membership of the EU. These issues played effectively to
working-class voters‘ anxieties about globalization and disillusionment with Social Democratic
policies. From there the DVP then campaigned to protect ―the weakest in society‖ through ―a
reinforced commitment to comprehensive quality public health care, elderly care, and subsidized
housing‖ (Polakow-Suransky 2002; Betz 2002: 213 n. 6; DVP 2003). The party‘s current
program advocates the decentralization of employment services and a labor market primarily
regulated through voluntary collective bargaining agreements between unions and employers. 18



15
     Moschonas 2002: 106-9. In the 1999 Austrian elections, for example, the FPÖ outpolled the Social Democrats by
     48% to 31% among skilled blue-collar workers and by 45% to 40% among the unskilled (Müller 2002: 157). In
     the French presidential elections of 2002, Le Pen garnered a full third of the working-class vote; already by the
     late 1990s, as an authoritative commentator observed, support for the FN could be termed a ―class vote‖, taking
     on at least among younger workers ―the privileged place the Communist Party held twenty years ago (Miguet
     2002: 208; Mayer 1999: 114, quoted in Surel 2002: 143-4.
16
     Already in 1995, analysts judged the FN‘s electorate as ―further to the left in its economic ideology‖ than that of
     the moderate right; in 2002 Le Pen characterized himself as ―socially-speaking…with the Left‖, adding that he
     was also ―economically-speaking…with the Right‖, and ―nationally-speaking with France‖ (Moschonas 2002:
     106; Miguet 2002: 208).
17
     Müller 2002: 167-8; FPÖ 2003: ch. 11, http://www.fpoe.at/bundneu/programm/dafuer_programm_11.html;
     ―Haupt: Bericht zur Lage von Menschen mit Behinderung online‖,
     http://www.fpoe.at/bundneu/home/news/index_news_561.htm.
18
     ―Et dynamisk arbejdsmarked‖, http://www.danskfolkeparti.dk/sw/frontend/show.asp?parent=4266&layout=0 .
     Challenging the traditional labor movement on its home ground, the DPP also claims that the ―centralization of


                                                        14
Its rising popularity among the poorer and less educated has led many observers to term the DVP
―‗more social‘ than the Social Democrats‖ (Polakow-Suransky 2002).19

           While all of these movements are tainted by xenophobia and racism, some are also
surprisingly tolerant of diversity. The best example here is the late Pim Fortuyn, who articulated
a post-modern conception of nationalism that has a place for immigrants to integrate themselves
into the nation (and the nation to integrate itself into Europe). He argued that Dutch identity
grew out of the struggle for religious tolerance against Spanish domination, and insisted that
Muslims in the Netherlands respect the pluralism of the Dutch, not that they abandon their own
culture (Fortuyn 2001).

The New Center-Right Response
           The impact of these new populist movements is magnified through competition with the
mainstream right, which anxiously co-opts parts of the populist program for electoral advantage.
Because of this competitive emulation, these old and new rights coexist between hodgepodge
and hybrid. As with the social democrats, the realignment of the traditional governing right
wanders between expediency and sincere reformism; and again as with the social democrats,
there is an open struggle within center-right governing coalitions about which path to follow.

           Jacques Chirac in France is the improbable case in point. An heir to De Gaulle‘s
plebiscitarianism, he warned of ―social fracture‖ and a widening gap between the people and the
politicians to become the right‘s candidate and win the 1995 presidential election. But in office,
Chirac reverted to the ―pragmatic managerial conservatism‖ which has been ―one of the few
constants in his political career‖. A technocratic pension reform plan provoked a bitter
confrontation with public employees in 1995. Chirac then called and lost early legislative
elections in 1997; he was thereby forced into cohabitation with the left for the rest of his term.
Thus chastened, Chirac opened his second presidential campaign by denouncing ―a democracy
detached from the realities of life, given over to ideologies and the spirit of party‖ (Surel 2002:
150, 152-3). Le Pen‘s unexpected elimination of Jospin in the first round of the 2002 presidential

     power‖ has opened ―a nearly unbridgeable gap‖ between union leaders and members, and argues that the unions
     can only renew themselves by decentralizing and breaking their exclusive relation to Social Democracy.
19
     A prescient observer had already seen the seed of this novel ―welfare chauvinism‖ in the evolution of the protest
     movements against the Danish and Norwegian welfare states in the 1980s (Andersen and Bjorklund 1990, quoted
     in Moschonas 2002: 107).



                                                       15
elections allowed Chirac to win in a landslide, and to secure a solid legislative majority for his
prime ministerial candidate Jean-Pierre Raffarin, an outsider to Parisian politics who associated
himself with Tocqueville‘s ―low France‖ (Miguet 2002).

            One of Raffarin‘s first projects was a ―National Plan for the Reinforcement of the
Struggle against Precariousness and Exclusion‖ that drew on thinking among center-right
intellectuals about how to achieve solidarity through local initiative and individualized
services.20 The plan was prepared in consultation with a national council of local authorities,
NGO service providers, and representatives of the poor and excluded. It aims to enhance access
to public social assistance as a citizenship right while improving the quality of services. (This
plan is also the basis for France‘s NAP in the second round of the European Social Inclusion
Strategy.)21

            But the government‘s approach to pension reform breaks most dramatically with Chirac‘s
old managerialism. To explore alternatives, Minister of Social Affairs and Solidarity François
Fillon led a study tour of parliamentarians and trade unionists to Spain, Germany, Sweden, and
Finland. Fillon concluded from these visits that successful pension reform in Europe depends on
broad social dialogue and a flexible, experimental approach rather than sweeping changes
imposed from above.22 His own reform proposals emerged from a extensive process of
consultation with major stakeholders, involving organizations of retirees as well as unions and
employers‘ associations. Their aim is gradually to harmonize public and private pensions, while
maintaining a high (but reduced) level of benefits for retirees and a Pay-As-You-Go system of
funding based on intergenerational solidarity. The reform seeks to induce employees to remain
at work up to and beyond the legal age of retirement through longer periods of qualification for
full pension rights; and it facilitates this extended labor-market activity through investments in
lifelong learning.23 The proposed changes have provoked resistance and a one-day general
strike, concentrated among state employees. Within two days, however, several of the

20
     See e.g. Bébéar 2002: esp. chs. by Godet on employment and Le Pen on health care.
21
     ―Plan national de reforcement de la lutte contre la preécarité et l‘exclusion‖,
     www.social.gouv.fr/htm/dossiers/exclu/intro.htm.
22
     ―Les retraites en Europe: bilan des voyages de François Fillon‖, 27/1/03, www.retraites.gouv.fr/rubrique32.html.
23
     ―Une réforme juste grace au dialogue‖, interview with Fillon in Notre Temps 28/3/03,
     www.retraites.gouv.fr/article216.html; ―Les principes généraux de la reforme: Texte issu du travail de
     concertation du groupe conféderal‖, 3/4/03, www.retraites.gouv.fr/article215.html.



                                                         16
participating union confederations had negotiated a compromise with the government. Although
the outcome is still open, in contrast to the 1995 ―hiver de colère‖, there are few signs that
sectional protests will be seconded by a broader public outrage. 24

           The mainstream right in Denmark and the Netherlands has changed in similar ways. The
ideological volte-face has been particularly dramatic in Denmark. After his Venstre Liberals
suffered two successive electoral defeats, Anders Fogh Rasmussen became the party‘s leader in
1998. Fogh Rasmussen abjured the neo-liberalism with which he had long been identified and
proclaimed his strong commitment to the welfare state. The public believed him, and in the 2001
election his coalition won an absolute majority (the first in recent memory). Privatization and
contracting-out remain a leitmotiv of the Venstre program, but in office, he has focused on
improving provision of welfare services, for example by increasing hospital budgets. In
agreement with the other major parties – Social Democrats included – he recently introduced a
comprehensive reform of active labor market policies to coordinate national and municipal
programs and more generally to shift from rule-driven programs to personalized services.
Despite inveterate opposition to the traditional corporatism of the social partners, Fogh
Rasmussen likewise favors broad and continuous consultation with an open circle of
stakeholders in the formation and implementation of policy. His government advocated just this
approach in choosing ―Social Inclusion through Social Dialogue and Partnership‖ as the
overarching theme for the social and employment initiatives of its EU Presidency during the
second half of 2002.25

           In the Netherlands, too, the reorientation of the Christian Democrats under Jan Peter
Balkenende followed a period in the electoral wilderness, beginning in 1994 and ending with the
party‘s return to power as part of the political landslide touched off by Pim Fortuyn in 2002. The
party program, formulated in broad consultation with the membership, resembles Venstre‘s in
urging the simplification of welfare state rules in order to facilitate the adaptation of services to
highly specific local contexts. With respect to school reform, for example, the party aims to
limits the state‘s role to setting quality or performance standards and monitoring progress in their

24
     Emmanuel Jarry, ―Un compromis trouvé sur les retraites dans la désunion syndicale‖; ―Retraites: les principaux
     points du compromis‖, Reuters 15/5/03; Alexis Brezet, ―La premiére haie‖, Le Figaro 17/5/03.
25
     Goul Andersen (2002); Venstre website [add URL]; Danish Presidency (2002); Council Resolution, ―Social
     Inclusion through Social Dialogue and Partnership‖, COM 2003/C 39/18.2.2003.



                                                      17
attainment. Generally, the Christian Democrats are de-emphasizing the recalibration of social
insurance programs and accentuating the reorientation of services to support individuals and
families in pursuit of the particular life courses (Balkenende 2002).

            Whereas the EU has become a privileged forum for political and intellectual debate about
the reform of social democracy, this has not so far been the case for the right. The benchmarking
and peer review characteristic of the OMC and other new governance mechanisms are surely
influencing the right in government in the Member States: think of Fillon‘s pension reform study
tour, Haupt‘s active participation in the European Year of the Disabled, or Rasmussen‘s embrace
of continuous stakeholder consultation as a vehicle for social inclusion. But the mutually
transformative refiguration of neo-liberalism and Christian Democracy underway in some
Member States has no EU counterpart. On the contrary, in the European People‘s Party (EPP),
the main grouping of the center-right in the European Parliament, Christian Democrats vote as
often with the Party of European Socialists (PES) as with the European Liberal Democratic
Reform Party (ELDR), and more frequently than with their own neo-liberal comrades from
Britain and Scandinavia. ―There is more fundamental agreement between the EPP and the PES
than within the EPP group‖, concludes one recent authoritative analysis (Hanley 2001: 193-4,
2002).26


II. The New Governance Consolidates

            These broad political changes reflect and reinforce the emergence of a new system of
governance that puts national administrations in a mutual discussion with one another by linking
them through a complex web of novel European institutions. Interrelated institutional
innovations include a Treaty addition favoring open-ended, framework regulation (the

26
     More equivocally, some of the most flamboyant populists on the Center-Right like Berlusconi, Aznar, and Durão
     Barroso of Portugal find it easier to frame joint declarations on EU social and economic policy with the
     prototypical social democratic populist Tony Blair than with other prime ministers in their own camp. See for
     example, ‗Meeting the Challenge of Reform‘, joint statement by Blair and Berlusconi, 15 February 2002,
     http://www.britain-info.org/eu/xq/asp/SarticleType.1/Article_ID.2128/qx/articles_show.htm; ‗A Renewed
     Impetus for Economic Reform in Europe‘, joint statement by Blair and Aznar, 28 February 2003,
     http://media.ukinspain.com/documents/pdfs/ukspain_summit/economic.pdf; ‗Modern Labour Markets: Meeting
     the Lisbon Challenge‘, joint statement by Blair and Durão Barroso, 26 February 2003, http://www.number-
     10.gov.uk/output/Page3099.asp. Contrast these with the open disagreement between Raffarin and Aznar over the
     relative priority of decentralization and liberalization as strategic tools for promoting economic growth at the Paris
     summit of European right leaders in April 2003: Guillaume Tabard, ―Autour de Raffarin, la droite européenne fait
     entendre ses differences‖, Le Figaro 23/4/03.


                                                        18
Amsterdam protocol on subsidiarity and proportionality); expert advisory committees
(comitology); public regulatory agencies of a new type; iterative processes for benchmarking
member-state practices in complex policy domains (the OMC); and transparency as a procedural
safeguard for the accountability of EU decision making. Together they provide the instruments
for the incremental, but cumulatively transformative, reconstruction of national welfare states
and EU social regulation towards which political convergence is pointing.

       Very broadly speaking, this emergent system of governance is experimental and
networked, not hierarchical: framework objectives established at ―high‖ levels are routinely
amended in the light of diverse experience gathered at ―lower‖ levels in their implementation.
Similarly, the new system is, at least potentially, open, not closed: it incorporates, especially in
its most recent additions and re-elaborations, commitments to extend the circle of participants in
decision-making. In this sense, too, it is not hierarchical. But this commitment to openness or
contestability has not led, at least so far, anything like broad civic participation in EU
governance.

       Because the individual elements emerged piecemeal, the connections between them are
not conspicuous; and because each taken separately operates by unconventional or even counter-
intuitive principles, it has been easy to underestimate the depth and breadth of the transformation
in progress. Indeed, commentators have tended to focus on one of the components of this new
system to the exclusion of the others, evaluating its potential as a foundation of EU governance
by the standards of conventional forms of administration. To fix ideas, this section deliberately
errs in the opposite direction, treating distinct developments regardless of their immediate
motivation as mutually reinforcing parts of an innovative whole whose coherence is best
understood in the light of the common principles that inform apparently disjoint institutions.


       The Amsterdam Protocol on Subsidarity and Proportionality

       The Protocol, added to the EC Treaty by the Treaty of Amsterdam (ratified in 1999),
marks and helps officialize the long transition from the old governance to the new. Indeed, its
own internal ambiguity embodies and exemplifies the very change that it would help channel.

       The Protocol‘s original purpose was to clarify and limit the role of the EU by establishing
subsidiarity as constitutional principle: where it shares competence with the Member States, the


                                              19
Union may regulate only if it can show that the latter are not capable of doing so adequately on
their own. But the Protocol offered no criteria that would make this principle an effective
discipline on Union power. Perhaps the Union should act only if there are ‗transnational‖
aspects to an issue that the Member States cannot address alone? But how could it ever be
conclusively demonstrated that such aspects are utterly absent? On the contrary: merely stating
such inevitably elastic criteria invites an abusive extension of authority rather than limiting it.

        Implicitly recognizing this danger, the Protocol tries to maximize the possibility for
―subsidiary‖ units to solve their own problems in a second and more fecund way. In addition to
specifying (unsuccessfully) what the Union may regulate, the Protocol imposes requirements on
how all regulation is to be accomplished: it takes the principle of proportionality (―the Union will
legislate only to the extent necessary‖) to mean that subsidiarity must be a pervasive requirement
of EU regulation. Thus whenever the Union acts, it must give Member States the greatest
possible autonomy in the application or implementation of the EU measure.27 In particular the
Protocol requires that the Union use directives and other framework devices in preference to
―detailed measures,‖ leaving the Member States as free as possible to interpret the outlines of
joint action. The Protocol moreover requires the Commission to explain how its proposals, and
the expenditures they entail, meet the obligation of subsidiarity, and to report annually to the
European Council, the European Parliament and the Council of Ministers on its application of
the relevant principles. Taken as a whole, then, the Protocol not only creates a constitutional
commitment to the new governance and the values of extended self-determination that it serves,
but also contributes to the rudiments of a corresponding transparency-based accountability
system, to which we return below.


        Comitology

        This is the awkward name for the system of expert and political committees, appointed
by the Member States, to work with the Commission in drafting regulatory proposals for policy
areas such as food safety, occupational health and safety, and telecommunications. Decision-
making in these committees is, in most cases, by qualified majority vote (QMV).


27
  Whereas regulations and decisions are directly applicable as law in Member States, directives are legally binding
only as to the ends to be achieved and therefore require formal transposition into domestic law for their
implementation.


                                                    20
       At one extreme, comitology has been interpreted as the European version of regulatory
capture, where self-seeking interests hide behind claims to scientific and technological expertise.
BSE is the horrific proof that there is something important in this view. At the opposite extreme,
comitology has been described as a European version of US Congressional police patrols
ensuring on behalf of the Member States that the Commission does not exceed its delegated
powers. This is most likely what the Member States originally intended the institution to be
(Pollack 2003).

       The dominant interpretation, however, based on close observation of their actual practice,
rejects the notion that the committees operate as mere agents in favor of the view that they
operate through deliberation – (self-) reflective debate by which participants reason about
proposals and are open to changing their own initial preferences – aimed at consensus. Hence
members individually and committees as a whole cannot be said at the end of the decision
process to be advancing any fixed interest with which they entered it. On the contrary:
committee deliberations are driven by the comparison of differences among current regulatory
systems in the Member States. Such comparisons permit identification of best practices that
serve as the starting point for a detailed, harmonized regime.

       But despite its impressive and by now well-documented problem-solving capacities,
comitology according to this third dominant interpretation remains limited in two key ways.
First, it is confined to those policy areas where Treaty powers and Council decisions have given
the committees authority to enact uniform regulations. Second, comitology is said to suppose a
degree of technical expertise that de facto limits participation to a small club of adepts, formal
commitments to broader consultation imposed by the ECJ notwithstanding.

       Where the first interpretation turns comitology into a quasi-criminal conspiracy, and the
second makes it as politically legitimate as apple pie, the third preserves, the appearance of
democratic orthodoxy, though just barely, because a sovereign lawgiver — the EU in the guise
of the Commission and the Council—is setting the rules because the Commission is formally
implementing decisions of the Council, and the committees are formally assisting the
Commission, and reporting back where necessary to the Council (Joerges et al. (eds.) 1997;
Joerges and Vos (eds.) 1999; Van Schendelen 1998; Christiansen and Kirchner (eds.) 2001).




                                             21
       Networked Agencies

       In the first half of the 1990s, the EU created a series of free-standing agencies in policy
areas such as occupational health and safety, environmental protection, drug abuse,
pharmaceuticals, and immigration/xenophobia. Recently, it has been decided to create a
European Food Safety Authority to help police the integrity of the food supply chain.

       These agencies, particularly the first ones, were said to be modeled on American
independent regulatory bodies. Whatever they are in reality, they are not faithful copies or even
close approximations of these ostensible transatlantic models. Interpretation of their actual
operation has fractured as much and along the same lines as that of comitology.

       At one extreme, the agencies are seen as misbegotten because they perpetuate
comitological-style networks of deliberative decision making rather than exercising independent
executive powers of their own. Whether the agencies are nefarious (as committees are in the
sottogoverno reading of comitology) or simply ineffectual is left open; either way, they are part
of the administrative problem facing the EU, not part of the solution (Majone 2002).

       At the other extreme, behind the façade of networking and openness, the agencies are
seen as a Trojan horse for unauthorized centralization of decision-making at the EU level. It is
true that most modern federal states have encouraged centralization of power at the federal level,
and that administrative agencies of one sort or another have often served as vehicles for this
purpose. The interpretation of the agencies as façade is premised on such historical precedents,
and supported, so far at least, by little else (Berghman and Okma 2002).

       The third interpretation is based on extensive empirical research by administrative
lawyers and political scientists. It neither dismisses the agencies as a failed attempt to
Americanize EU administration nor as an infernal device for achieving this very result by
cloaking central power in the humble garb of advisory networking. In this view the agencies,
despite significant differences in their own authoritative capacity to intervene in regulatory
processes, systematize and extend comitology in three ways. First, they consolidate and
streamline the existing committees while creating new ones where that is judged opportune.
Second, in at least some high-profile cases, the agency with its corresponding committees jointly
orchestrates a process by which regulatory decisions can be contested and the contestations



                                              22
adjudicated. In these cases, the exact division of labor between agencies and committees differs
from one policy domain and stage of the process to another, but information gathering,
deliberation, and decision making are so closely imbricated that it seems reasonable to think of
the two institutions as comprising a single system. Third, the agencies extend ―comitological‖
exchanges among national administrations even when such mutual learning is not immediately
required to inform EU regulatory processes.

           In the American political science account, these changes are largely a result of the
increasing influence of the European Parliament as a principal shaping the behavior of its
administrative agents: by establishing the agencies as ―monitoring and control structures that
emphasize transparency and opportunities for participation by concerned interests‖, the
Parliament has created a system in which civil society actors can trigger public ―fire alarms‖ to
signal bureaucratic transgressions (Keleman 2002). From the perspective of the European
administrative lawyers, these developments, although spontaneous in origin, have come to
constitute a new model of joint exercise of Community functions based on ―decentralized
integration‖ (Chiti 2001, 2003). Either way, a natural by-product of this Member State to
Member State networking is to broaden the circle of participation in the kinds of practical
deliberations upon which comitology draws, and so at least potentially to extend the circle of
participation in the latter.


           Open Coordination

           As we saw, the Open Method of Coordination had its roots in the European Employment
Strategy initiated by the EU during the late 1990s,28 and was given explicit form at the Lisbon
European Council of March 2000. Since then, OMC processes have been initiated in a number
of new areas, notably social inclusion, pensions, health care/care for the elderly, and
immigration/asylum. These are all domestically sensitive policy areas, where the Treaty bases
for Community action are weak; where inaction is politically unacceptable; where diversity
among Member States precludes harmonization; and where widespread strategic uncertainty
recommends mutual learning at the national as well as the European level.



28
     Add note on relationship of OMC to economic policy coordination (BEPGs).



                                                    23
            Although the method varies widely from one policy domain to another, it is defined by
four common elements: 1) joint definition by the Member States of initial objectives, indicators,
and in some cases guidelines; 29 2) national reports or action plans which assess performance in
light of the objectives and metrics, and propose reforms accordingly; 3) peer review of these
plans, including mutual criticism and exchange of good practices, backed up by
recommendations in some case; and 4) re-elaboration of the individual plans and, at less frequent
intervals, of the broader objectives and metrics in light of the experience gained in their
implementation.

           Within this iterative redefinition of ends and means in relation to one another, common
objectives play a pivotal role in linking OMC processes upwards to the fundamental values and
goals of the Union (as set out in the Treaties and the Charter of Fundamental Rights) on the one
hand, and downwards to more specific policy approaches to be pursued by the Member States in
advancing them on the other. Thus, for example, in defining accessibility along with quality and
financial viability as long-term of objectives of EU policy coordination in health care, the
Commission and the Council referred explicitly to the ―right of access to preventative health care
and…medical treatment‖ proclaimed by the Charter of Fundamental Rights (article 33). In
establishing an action program to support the Social Inclusion OMC, similarly, the Council and
the Parliament highlighted the right to protection against poverty and social exclusion enunciated
by the Charter of Fundamental Rights and the European Social Charter (De Búrca 2003: 22).
The annual employment guidelines begin by invoking the objective of ―promoting economic and
social progress and a high level of employment‖ defined in Article 2 of the Treaty on European
Union (European Commission 2003: 4).




29
     Examples of these objectives and indicators in the different OMC processes include:
employment: first five years: employability, adaptability, entrepreneurship, and equal gender opportunities – a
  characteristic indicator is the employment rate (number of people in employment/potentially active population)
  disaggregated by age and gender; new objectives: full employment; quality and productivity at work; cohesion
  and an inclusive labor market.
social inclusion: participation in employment and access by all to resources, rights, goods, and services; prevent
  risks of exclusion; help the most vulnerable; mobilize all relevant bodies.
pensions: adequacy, sustainability, and modernization to meet new distributions of social risk.



                                                      24
       Here, too, it is convenient to trichotomize reactions, although developments here are so
fresh that opinions are even more in flux than elsewhere and individual authors often straddle
multiple positions.

       At one pole are those who see the OMC as potentially freeing the deliberative kernel of
comitology and the new agencies from the constraining apparatus of power which currently
deforms it. This view concedes that as currently organized at least some OMC processes favor
bureaucratic insiders and discourage broad participation by civil society. But its proponents
argue that the OMCs can be reformed, for example by increased participation of national
parliaments and local authorities. The hope here is that the OMC could eventually create a new
European public sphere: a real-world approximation to the Habermasian ―power-free‖ discursive
space that gives free rein to the public interest precisely because it is not directly entangled in the
strategic games of legally enforceable rule-making. From this point of view, it is precisely the
fact that OMC issues in soft rather than binding law that obligates participants to engage in
mutual persuasion by reason-giving rather than strategic bargaining (Jacobsson 2002; Jacobsson
and Vifell 2003).

       At the opposite pole, the association of OMC with soft law is taken to be ominous,
though perhaps not irredeemably so. Those who fear increasing European integration worry that
under cover of an apparently innocent information exchange, the Commission, Member States,
and/or various particular interests conspire to use the OMC to bring about through EU pressure
changes both in national law and the scope of European action nowhere authorized by the
Treaties (Syrpis 2002; Berghman and Okma 2003). Those who favor the traditional idea of
Social Europe in which market-making and market-correcting rights are equally and explicitly
balanced fear that the soft law of the OMC could open the way to a paper equilibration than is
unsatisfactory in itself and in the long term subversive of existing hard European law that does
protect the socially vulnerable. Some of those like Scharpf who share this worry nonetheless, as
we saw, think that the OMC creates an opportunity, albeit a limited one, for Member States to
explore informally their preferences and learn of new possibilities in unfamiliar policy domains
before entering into more formalized rulemaking procedures. Put another way, the OMC makes
it possible to reduce the coordination costs of policy making by eliminating misunderstandings




                                              25
among those actors whose underlying interests are fundamentally aligned (Scharpf 2002a,
2002b).

           The third perspective looks at OMC not in terms of the hardness or softness of the law to
which it might lead, but rather in the light of the principles that it declares and embodies,
especially as these relate to the first two sets of innovations in European governance, comitology
and networked agencies. From this third point of view, the OMC breaks with the fiction, still
barely maintained in Protocol on Subsidiarity and Proportionality, that deliberation and mutual
learning are appropriate first and foremost in the implementation of pre-established and unitary
Community goals. OMC openly acknowledges rather that the goals of regulation are provisional
and need to be corrected by experience as diverse as that underpinning their initial formulation.
It thus proclaims and institutionalizes directly what comitology and the networked agencies say
and practice more obliquely. In so doing, the OMC provides in this view an institutional
armature for linking and the rudiments of a conceptual language for explaining and perhaps
legitimating through broader engagement with civil society the apparently disjoint pieces of the
EU‘s emergent system of governance. This view, like the first, concedes that there is much that
needs to be reformed before the OMC can fulfill such promise. A first intuition here is that the
OMC procedures for ensuring full and open participation can be reformed by applying to them
the same techniques of benchmarking and peer review that inform substantive policy judgments.
If such reforms succeed, the OMC will enlarge the deliberative possibilities of civil society as
envisaged in the first view, but connect them more directly to practical decision-making than the
Habermasian interpretation would allow. If the OMC does integrate the new governance along
these lines, furthermore, it is likely that the forms of decision that result will blur the distinction
between hard and soft law from which the both of the preceding views depart. Indeed, this
blurring is already foreshadowed in hard-law hazardous waste and occupational health and safety
directives that anticipate the revision or completion of standard-setting by soft-law OMC
procedures.30



30
     For the example of industrial waste, see European Convention, Secretariat, ―Coordination of National Policies:
     The Open Method of Coordination‖, 26/9/02, WG VI, WD 015; for occupational health and safety, see European
     Commission, ―Adapting to Change in Work and Society: A New Community Strategy on Health and Safety at
     Work 2002–2006‖, COM (2002) 118 final, Brussels, 11.03.2002. In other cases, such as the regulation of atypical
     forms of employment, legal scholars increasingly observe an ―integral continuity‖ between the legally binding
     norms embodied in EU framework directives (sometimes themselves the product of formal agreements through


                                                      26
            Transparency as a Procedural Safeguard

            A fifth innovation in EU governance concerns transparency, the citizen‘s right to know
not just what the authorities are deciding but also, as a procedural safeguard, the evidence and
arguments motivating their decisions. In the EU, pressure for such protection originated in the
Nordic countries, particularly Sweden, where access to official information antedated
representative democracy as a form of popular accountability. When Sweden and Finland joined
the EU in 1995, they pushed for procedural reforms favoring transparency in the Council and
Commission, adding their weight to that of Denmark and the Netherlands which had long urged
such measures. These Member States then won broader protection for these principles through
successful litigation before the ECJ. Treaty reform followed in Amsterdam in 1997. Since then
the ECJ has extended procedural safeguards further to ensure the deliberative quality of
comitological decisions, for example by scrutinizing the methods by which expert opinion is
solicited and evaluated. Still the ECJ has not established a ―general principle of transparency‖.
Indeed, even had it done so, this would not be a substitute for a comprehensive Act or Directive
specifying who must be heard in the deliberations of the new experimental governance, and in
what forms and measures the deliberations and their results are to be accessible to the public.
But given the pace at which the new governance arrangements traced above have emerged and
their institutional novelty, it is almost unimaginable that the legislator could have adequately
protected citizens and Member States against many possible abuses of the new authorities.31
Despite these limits, however, the emerging case law empowers Member States and citizens to
protest the decision making of the new governance, and more elaborate protections will
eventually be able to draw on a rich body of legal precedents that instantiate novel forms of
democratic participation as they emerge in practice.

            The distinctiveness of these innovations stands out in contrast with representative
democracy. In democracy as conventionally understood, the people acting through its
representatives in the legislature are the principal and the administrative bodies that implement
the laws are their agents. The constitution fixes the procedures by which the popular principal

     the European Social Dialogue procedure) and the ―soft‖ commitments of the EES guidelines: Freedland and
     Davies forthcoming, quoted in Kilpatrick 2003.
31
     In the United States, after all, the Administrative Procedure Act, whose function was to protect citizens in this way
     against overreaching by the New Deal state, was passed only in 1946, roughly a decade after the novel and
     potentially threatening regulatory institutions were established.


                                                        27
translates its settled will into law and ensures that its administrative agents implement its
intentions faithfully. The more explicitly and consistently EU lawmaking becomes a provisional
and corrigible system for learning what its ―will‖ is by implementing it, the more clearly the
Union departs from the familiar principal-agent model and the more it refashions democracy as
the public instrument for responding to pervasive non-actuarial risk. The more profoundly and
extensively this novel process of lawmaking undermines the separation of powers and challenges
the sovereignty of parliament, the more it comes to rely for ensuring accountability on the still
vague idea of transparency and the equally ill-defined notion of broad participation. The new
governance thus trenches on the constitutional foundations of the EU, raising basic questions
about what a constitution is and could be. It is at this point that the long-term transformation of
EU governance intersects with current developments in constitutional theory on the one hand and
the ongoing constitutional deliberation of the Convention on the Future of the EU on the other.


III.    Constitutionalism


        The Contemporary Crisis of Constitutionalism

        Contemporary constitutionalism in the EU and generally is in crisis for two interrelated
reasons.

        First, constitutions traditionally since the French and American revolutions have
supposed a demos, an historically given sovereign people which as the pouvoir constituant
endows itself through and in the constitution with the institutional pouvoir constitué that is to
regulate its subsequent exercise of sovereignty. The EU famously has no demos, and the idea of
endowing it with a constitution therefore seems a denigration of such popular sovereignty as
does undeniably continue to exist at the level of the Member States.

        Second, under the conditions of reasonable diversity that characterize modern societies,
including especially those such as the United States with long consolidated constitutional
traditions, it is far from clear that it is possible to practice anything resembling traditional
constitutionalism. Even supposing that the citizens of these polities continue to agree on the
most fundamental principles, they almost surely disagree, and sharply, as to their application in
controversial cases. They disagree, furthermore, about the principles to be applied for selecting


                                               28
procedures to resolve substantive disputes. Under these conditions, ―adjudication‖ of important
disputes by constitutional courts will appear more like an exercise in caprice and a usurpation of
democracy than the correction of unruly practice by the consensual application of fundamental
principle. In the light of this second problem, the want of a demos just spares the EU the
constitutional disappointment of having one.

       Constitutional theory in Europe and North America – the transatlantic community from
which republican democracy emerged – has not, however, been paralyzed by the challenges it
identifies. As usual in such moments of general confusion, responses come in various
combinations of two basic forms. The first is the rediscovery of historical alternatives to current
arrangements. Swept away by the march of progress, some of these suddenly seem pertinent
again in a changed world. The second is philosophical speculation. Faced with the aporias of
contemporary constitutionalism, some theorists almost in desperation try to think their way out
of a box by imagining less confining containers. Some of these prove wholly imaginary; others
help explain and are clarified by emerging elements of current practice and the re-evocations of
alternative historical possibility. Here we focus on two of these responses, agonistic and
epistemic democracy. We argue that the first fruitfully characterizes the ongoing disputation of
fundamental values that is at the heart of contemporary constitutionalism, but does so in a way
that detaches this disputation from the practical decision making that motivates political
participation and commitment in the first place. The second, epistemic democracy, re-
establishes this connection by showing that a solution cannot be found at the level of principle or
theory but only in the practice of actual decision making. Paradoxically, however, it establishes
this result only theoretically, leaving largely obscure even the outlines of the institutions that
might actually do the work that constitutional theory alone cannot.

       This where the Community Method is important. In the classic Community Method, the
Commission has the exclusive right to propose legislation to the Council and the Parliament. If
adopted, this legislation is then implemented by the Member States under the supervision of the
Commission and the Court. Magnette (2000) and others have seen it more generally as the
system by which the EU, despite its diversity, provides for public- or other-regarding decisions,
where such regard means sufficiently responsive to the demands of Member States (and
eventually citizens) to be accepted by them as legitimate. Starting from this understanding, we



                                              29
will argue that the new governance amounts to a re-elaboration of the Community Method,
which makes it a working institutional example of epistemic constitutionalism under conditions
of diversity.


            Difference Democracy

            Difference democracy responds to the question, is there a conception of self-
determination by which culturally distinct groups with legitimate claims to autonomy can renew
themselves within a common democratic polity? The guiding assumption is that democracy and
constitutionalism are essentially contested concepts, meaning that they are always defined with
respect to many aspects or dimensions, and new elements can be added to the existing ones. No
single interpretation can therefore dominate the others on all the currently relevant dimensions,
let along those that may be eventually introduced. Given this continuously renewable ambiguity,
to affirm constitutional democracy is less a declaration of principle than an orientation: a
commitment to engage with similarly oriented others in coming to terms with rival conceptions
of democracy and constitutionalism. From this follows a shift in the idea of a constitution as a
foundational document embodying those values and commitments from which a people
elaborates and disciplines its subsequent decisions to the idea of a constitution as a device
permitting, even encouraging the continuing articulation of differences. As Tully (2002: 208)
puts it:

            The democratic practices of disputation and contestation that were previously
            assumed to rest on permanent constitutional arrangements, to which the people
            were supposed to have agreed once and for all, are now seen to apply to those
            arrangements as well, and thus ‗agonism‘ (the Greek word for contest) is seen to
            be a defining feature of democratic constitutionalism, one which partly explains
            and also reinforces the co-equal status of the two principles.

            The arguments in this school of thought form a continuum, defined at one end by an
emphasis on institutions as the instigators and guardians of deliberation about difference, and at
the other by an anti-institutional insistence on an ethical or even spiritual inclination to tolerance
on the part of the citizenry as the guarantor of mutual accommodation.32


32
     This latter pole is defined by Weiler (2001, 2002). In his view, the notion of constitutionalism has been
     contaminated by its association with the sovereigntist parenthesis. Attempts to redefine this notion it are unlikely
     to purge it of all the elements that it acquired between the French and American revolutions and the present.
     Efforts to apply an enlarged or more plastic concept of constitutionalism are therefore likely to be self-defeating


                                                        30
        We focus here on the institutional end of the spectrum, especially Bellamy‘s work on
republican constitutionalism as it relates to contemporary debates in the EU. Bellamy (2002)
regards the conventional nineteenth-century view of sovereignty and contemporary post-
sovereignty – cosmopolitan governance entrenched through international law of human rights –
as two sides of the same coin, insofar as each can be seen as the expression of a unitary will. To
these he contrasts the early modern republican idea of ‗mixed government‘ or constitutionalism.
In mixed government, state authority is distributed among various institutions, each responsive to
a different component of the polity. Hence no organ of government can act effectively without
taking the views of the others into account. As mutual regard is a precondition for action,
difference and the continuing disposition to come to grips with it is constitutive of a distinctive
form of ‗mixed sovereignty‘. Bellamy and other agonistic democrats see mixed
constitutionalism as part and parcel of a reconceptualization – part recovery, part anticipation –
of democracy as dependent on difference. Thus Bellamy sees current developments in the EU as
closing a parenthesis in the world history of constitutionalism, and marking a return to
understandings of governance widespread before the nineteenth-century apotheosis of the unitary
nation-state. But it is also an innovation allowing for forms of tolerant conflict unthinkable
except against the backdrop of the bloody history of the nation-state.

        A limitation of this agonistic school even at its institutional pole is the dissociation of
deliberation about difference from the practical activity of problem solving. At the limit, the
purpose of agonistic democracy is to promote agonism as an exhilarating exercise in republican
virtue. Hence Tully‘s (2002: 219): ―democratic-constitutional citizen is not Lenin. She does not
aim for the end of politics and the administration of things. She is more akin to the young

  as they import formative elements of the old order into the new. And this connection to the past, disruptive in
  itself, is likely to be especially so given that it is both unwanted and unconscious. It would therefore be
  impossible, in Weiler‘s view, to endow the European Union with a constitution without subverting it as a
  functioning polity. But he goes on to argue that constitutionalizing the EU is not only impossible but also
  thankfully unnecessary for two different but ultimately complementary reasons. The first is that citizens of the
  EU already demonstrate in their daily life the mutual toleration to which a new constitution should ideally
  conduce them. Seen this way, a constitutionalism capable of truly respecting difference, assuming it to be contra
  factum possible, would be superfluous. But Weiler argues as well that the toleration that must be constitutive of
  the EU is a transcendent value because never fully or unequivocally embodied in the law or practice of any earthly
  power. On the contrary, the current European constitution is so ramshackle that nobody could construe it as a
  satisfactory source of political legitimacy. Therein lies, Weiler argues, the paradoxical utility of the current
  arrangements. By freely and repeatedly submitting themselves to the often arbitrary structure of the current EU
  ‗constitution‘, practicing Europeans give expression to their adherence to the transcendent value of mutual
  toleration in much the way that a practicing Jew acknowledges the transcendent authority of God by adhering to
  the arbitrary laws of the Sabbath.



                                                   31
Olympian athlete who greets the dawn‘s early light with a smile, rises, dusts herself off, surveys
her gains and losses of the previous days, thanks her gods for such a challenging game and such
worthy opponents, and engages in the communicative-strategic agon anew.‖

       This exaltation of difference is an urgent necessity, not an extravagance when a central
task of politics is to protect culturally distinct minorities against the homogenizing intrusion of a
dominant majority. Such was and perhaps still is the multicultural Canadian context within
which many of these ideas developed (Tully 1995, 2001). These same reflections lose their bite,
however, when translated into the setting of the EU where the central problem is not the
preservation of diversity given the fact of cooperation, but rather the cooperative interlinking of
diversity for practical purposes – many of which, of course, may also serve the goal of
preserving diversity in a new form.


       Epistemic Constitutionalism: Renewing the Community Method?

       Improbably perhaps, the problem of connecting difference democracy to problem solving
has been broached by US reflection on the aporias of constitutional democracy. Recent writing
by Michelman and others in US constitutionalism is at pains to link attentiveness to difference as
the legitimating basis for constitutional democracy with the epistemic requirements for decision
making: in other words to see democracy not just as an instrument for learning about difference,
but also and fundamentally an instrument for learning from it.

       Michelman‘s recent work frames some of the key conceptual difficulties with democracy,
and plausibly establishes minimal conditions for their deliberative solution. To be legitimate,
Michelman (1999) argues, a democracy must ensure both that the people be self-governing and
that the higher law guaranteeing the democratic character of lawmaking itself be protected from
popular abuses through the supervision, for example, of a constitutional court. Two
symmetrically flawed methods are traditionally available for articulating the rules of a
democratic polity so defined.

       The first is substantive. Deliberators detached from everyday passions reason from the
constitutional texts, and the traces of popular values in legal cases to a full specification of the
rights and duties citizens of citizens. But now they run into what Michelman calls the pragmatic
objection: in use these rights prove to be controversially indeterminate. The same problem arises


                                              32
with principles sought for the resolution of these controversies. The real decisions are made in
way that looks, by the standards of these deliberative fora, unprincipled.

        The alternative, procedural approach does no better. It aims to set the terms of full and
fair participation by all citizens in democratic decision-making. But every choice of
participatory procedure can be challenged, and must accordingly be defended, in the name of a
principle. Justifications ascend. This justificatory ascent takes the procedurally inclined polity
just where it was – wisely, given the failure of the substantive approach – disinclined to go:
investigation of first principles.

        Learning from these reverses, we can revise our standard of democratic legitimacy to
disengage our concerns for self-rule as political responsiveness broadly conceived from concerns
for procedural and substantive coherence. Thus Michelman proposes that a democracy is
epistemically legitimate if it meets two conditions. First, it must embody the best possible
interpretation of our understanding of democracy (our right to be treated as equal, for example).
Second, those empowered to interpret the higher law – the constitutional judiciary in one of
Michelman‘s accounts – must expose themselves and other institutions to the ―full blast‖ of
diverse opinions and interests in society. The first condition allows citizens to identify with our
democracy. The second guarantees them indirect participation in actual lawmaking in the sense
that unless something like their own view is given due consideration, the ―full blast‖ of diversity
will not have been respected.

        Together these epistemic conditions shift the focus from the coherence of any one set of
procedural or substantive principles to evaluation of the effect of the interplay of various
principles of both types on the quality of our public deliberation. It is therefore a rough but
serviceable attempt to make our ideal of what democracy should be a kind of critical heightening
of what our democracy can (be made to) do. Indeed, given that the ―full blast‖ ideal of
democracy, like all our ideals must respond to the pragmatic objection, we only really learn how
the principle does and might still better discipline our choices from the experience of applying it.

        By itself, however, this epistemic turn is too barren institutionally to be of much use. It
tell us that our procedures for setting agendas and deciding the questions thus presented are key
to the elaboration of our fundamental commitments. But it does not say anything about the
institutions that will do the job, except that they must respect the ―full blast‖ criterion. Indeed


                                              33
Michelman himself seems resolutely uncertain about whether there is anything more to be said.
In one recent version of the argument, he suggests that the individual dispositions of the justices
of a constitutional court to honor the ―full blast‖ criterion is the ultimate guarantee of democratic
constitutionalism.33 At other moments, however, he suggests that constitutional provisions
commanding respect for the rights of the disfavored will by themselves exert ―a certain pressure
on the frame of mind in which citizens and their elected representatives would approach the
sundry questions of public policy always waiting to be decided‖ (Michelman 2003: 34).

           If epistemic constitutionalism had to rely on such scriptural effects, it would rightly be
dismissed as chimerical.34 But the experience of the EU, among other things, suggests that it
need not. Consider the Community Method, as generalized by Magnette and others. In
Magnette‘s view, the Community Method embodies a constitutional requirement that EU
institutions and Member States ―integrate a priori the desiderata of the others and take account
of them in the formulation of their own preferences‖ (Magnette 2000: 251; our translation). One
interpretation of the Community Method, favored by the Commission, is that due regard for the
interests of the others produces agreement on something approaching the Rousseauian general
interest (European Commission 2001: 8). But on another reading, preferred by Magnette, is an
instance of mixed government in which due regard for the others produces a permanent
deliberative disequilibrium. This deliberative disequilibrium excludes selfish outcomes without
necessarily producing outcomes that are transcendently public-regarding. On this second view,
the Community Method is the ―full-blast‖ criterion in action, at least as regards Member States.
On both interpretations, deliberative agenda setting sufficiently reassures the Member States, and
much less immediately the citizens, that narrowly self-interested proposals will not be advanced
for legislative approval. This reassurance in turn induces the Member States to relax veto
powers whose exercise would paralyze decision making in the EU. The Community Method can
thus be seen as the constitutional precondition for the EU as a functioning polity.

           As further articulated through the new institutions of networked governance, moreover,
the Community Method could be seen as satisfying the ―full blast‖ criterion by establishing a

33
     His example was Justice William Brennan of the US Supreme Court: see Michelman 1999.
34
     See for example Sunstein 2003: 10-11: ―there is real doubt about whether the many constitutions containing
     [purely hortatory] social and economic rights have made any difference at all ―on the ground‖—that is, there is
     real doubt about whether such rights have actually lead to more money, food, or shelter for poor people.‖



                                                       34
directly-deliberative polyarchy: directly deliberative because local agents – acting in geographic
localities or as the ground-level actors in specific policy regimes regarding anything from
education to the environment – can participate directly in problem solving, rather than delegating
responsibility for their choices; polyarchic because, even as they gain freedom of initiative, local
units remain accountable to a public informed by the doings of their likes. Seen this way, the
new Community Method is conceptually a kind of pragmatic constitutionalism or practical
difference democracy in which the routine comparison of different practices deliberately raises
and helps address doubts about apparently commonsense solutions and the meaning of deep
values.

          But even institutionally embodied in this way, ―full-blast‖ democracy and directly-
deliberative polyarchy are simply too distant from current understandings of self-rule to be self-
evidently democratic or even plausibly democratizable. The fundamental objection is that
deliberation, especially problem-solving deliberation, depends on the discovery and emphasizes
the importance of commonality, whereas democratic politics depends on the exacerbation of
difference as the precondition for clear-cut (electoral) choices. Thus in addressing the citizens‘
problems, the Community Method, according to Magnette‘s (2000, 2001) view, deprives them of
the right to choose among radically different solutions that would have been presented in the
absence of deliberative agenda-setting. Other writers such as Pochet see the difficulty as arising
within the new Community Method of the OMC: localized problem-solving within sectorally
specific policy regimes depoliticizes issues, while their re-aggregration to form a coordinated
strategy repoliticizes them (de la Porte and Pochet 2003; Radaelli 2003). This nuance aside, both
views and many other variants concur in seeing the new polyarchic problem-solving as at least as
much an opening for technocratic domination as a springboard for a new democracy. The only
way to democratize the Community Method old or new from this perspective is to demand of the
technocrats, particularly in the Commission, that they disclose the ideological valence of their
proposals, thus instigating the kind of partisan clashes in the Euro-polis typical of electoral
debate in contemporary mass democracies (Magnette 2001; Pochet 2002; Van Lancker 2002;
Tsakatika 2003).

          But these concerns arguably mischaracterize both the character of decision making and of
the decision makers in the new polyarchic governance. Take first the decision making. While



                                              35
deliberative problem-solving surely depends on the articulation of a working consensus, such
agreement is avowedly provisional and routinely corrected in the light of diverse experience
elsewhere. It is hardly the kind of commitment to common principle or still less the unreflective
submission to ―common sense‖ that might be suggested by the idea of convergence on
commonalities. Pochet‘s observation of the overtly political character of strategizing and goal
setting in the OMCs captures the essence of such processes, not their fundamental contradiction:
diverse, even opposed, ideas of how problems are to be solved are tested in different local
settings and revised in the light of pooled experience. Of course, the initial canvass of
possibilities may exclude some options, the local tests may be flawed, and the reaggregation of
experience imperfect, just as the reality of principal-agent democracy has always diverged from
the ideal. But just as it does not follow from such divergence that principal-agent democracy is
inherently undemocratic, so the analogous argument would fail in the case of directly-
deliberative polyarchy. Far from burying politics in consensus, the tendency of such decision-
making processes is to subvert the taken-for-granted and the commonsensical by confronting it
with workable difference.

       Take next the decision makers. The technocratic concern assumes that the circle of
decision making will be restricted to certified experts and that the experts will want to talk only
to themselves. Both assumptions are dubious, even if the evidence against them is far from
conclusive. The first overlooks the opening of the Community Method to civil society. The
emergence of the experimental governance innovations discussed above – framework directives,
comitology, networked agencies, the open method of coordination, and transparency – works in
this direction. All connect or potentially connect deliberative agenda-setting at the center to the
broader everyday life of European citizens. The second overlooks the extent to which the very
idea of the expert has begun to change. Expertise is coming to mean in substantial part knowing
just how little experts in one domain can achieve without the collaboration of experts in others
and the public that knows best the limits and possibilities of its institutions. Thus the identity of
the decision makers, like the character of the decision making, is in principle open or
democratizable, even if the extent to which this process will be realized in practice is still subject
to doubt.




                                              36
       The Convention on the Future of Europe might have taken stock of the changes in the
Community Method, and cognizant or not of the debate concerning difference democracy
acknowledge the new compromise of experimental governance as the constitution of Europe. In
practice, there seems little chance it will do this. By way of conclusion, we look at the stalemate
in the Convention and show that there is little prospect that it will halt this new transformation of
Europe and even a slight prospect that it may yet advance it.


IV.    The European Convention: Anti-Climax?

       In revolutionary times, constitutional conventions commit the people to enact generation
after generation their boldest dreams of freedom. In the most quiescent times, constitutional
conventions are an occasion for the elite to do the housekeeping of governance, putting an
intellectually presentable face on a political order of questionable legitimacy. Such was the
reality of constant constitution making in the old Soviet Union. The Convention on the Future of
Europe is an historically unusual mixture of these opposites. It reflects the elites‘ own unease
with the EU‘s constitutional patchwork more than any massive popular demand for a new
constitution. But in its deliberations the Convention also reflects the sense that the realities of
European governance are escaping old categories even if they are hard to express in new ones.
The achievement of the Convention thus far is to have avoided any recourse to traditional forms
of constitutionalism that might fundamentally obstruct the innovations traced above. Its failure
to date is its inability to give due constitutional form to these innovations. The anti-climactic
story of this failure allows us to see what has changed and what has not in the conceptual and
political transformation of Social Europe.

       The Convention quickly stalemated in a way that reflected the limits of the traditional
agendas of right and left. The right tried to keep Social Europe off the agenda altogether, while
resisting any increase in the Union‘s competences and powers in the social field. The left pressed
for its historic goal of a single Social Europe, based on parity of the EU‘s social and economic
objectives, together with extension of Union competences and qualified majority voting QMV to
all areas of social and employment policy (cf. Van Lancker 2002). But the right could not
prevent a broad front of Socialists and Christian Democrats from obtaining a Social Europe
Working Group (WG), while the WG‘s internal deliberations quickly revealed the lack of broad


                                              37
support even within its own ranks for a single Social Europe. Nordic Social Democrats and
British New Labourites joined with conservative liberals and Christian Democrats to oppose
granting new competences or stronger powers for the EU in sensitive policy areas bearing
directly on the core functions of national welfare states.35

            What now? There are two main possibilities. The first and most likely is for the
Convention to do little or nothing, including little or no harm to innovative institutions, while
simplifying the Treaties and tidying up constitutional loose ends. The alternative would be to
formally constitutionalize the new Community Method in a way that redefines the compromise
between deliberative decision making and relaxation of veto powers. This new compromise
would have two elements. The first would be a substantial strengthening within the draft
Constitutional Treaty of references to the EU‘s social values and objectives, which would place
them on an equal footing with Union‘s economic goals. The second would be the anchoring in
the Treaty of new governance mechanisms such as the OMC, which enhance the Union‘s
capacities to take effective action in pursuit of its objectives, particularly in the social sphere.

            The Convention has already made significant progress towards the first element of this
compromise, even if it not yet clear precisely what form this strengthening of the EU‘s social
objectives will take. The Social Europe WG recommended adding a long list of items to the
catalogue of values and objectives in Articles 2 and 3 of the draft Constitutional Treaty.36 The
Presidium, intent on keeping the opening ―constitutional‖ section of the revised Treaty to the
barest essentials, proposed a much shorter and less expansive list of social values and objectives.
But even this proposal would go a long way towards achieving a new parity between the EU‘s

35
     Even in the case of QMV, historically favored as a general rule for EU policymaking by Christian Democrats and
     Socialists alike on common federalist principle, the most the WG could agree to recommend was its extension to
     two largely symbolic areas of social protection, where the Treaty of Nice had already proposed that this decision-
     making procedure could be applied by unanimous consent of the Member States: TEC 137(1), d: ―protection of
     workers where their employment contract is terminated‖; and f): ―representation and collective defence of the
     interests of workers and employers, including codetermination‖.
36
     Many of its members also supported the inclusion of a broad ‗horizontal‘ or ‗mainstreaming‘ clause similar to that
     dealing with environmental sustainability, which would oblige the Union to integrate the promotion of these
     social values and objectives into all its activities: ―In all activities falling within its competence, the Unions shall
     aim to eliminate inequalities as well as discrimination on the basis of racial or ethnic origin, religion or beliefs,
     disability, age or sexual orientation, to promote equality between men and women, to promote full employment
     and a high level of social protection, protection of human health, advancement of education and training, and to
     guarantee universal accessibility of services of general interest which are financially viable, of high quality and
     organized on the basis of solidarity by the individual Member States.‖ (CONV 5116/1/03 REV 1, para 20). The
     idea of such a mainstreaming clause for social protection was originally proposed by Frank Vandenbroucke
     (2002a, 2002b).


                                                         38
social and economic goals.37 Any strengthening of the EU‘s social values and objectives will be
reinforced by the almost certain incorporation into the draft constitutional treaty of the Charter of
Fundamental Rights.

           The fate of the other key element of the emergent compromise – constitutional anchoring
of the OMC – much less certain. The Social Europe Working Group endorsed the inclusion of
the OMC in the draft constitutional treaty, as did three other WGs that considered the question)
provided that, as one summary of its conclusions put it, ―the provision would not replace existing
normative procedures or make the open method of coordination rigid in cases where there is no
specific legislative method of procedure.‖38 These provisos reflected fears among some
members of the WG that constitutionalization of the OMC could undermine its flexibility and
among others that it could subvert the use of the EU‘s existing Treaty powers to legislate in the
social field.

           These differences could potentially be reconciled by a generic provision of the
Constitutional Treaty defining only the fundamental aims and basic elements of the OMC;
declaring that OMC processes be defined flexibly, subject to review by Parliament and other
actors, unless specified otherwise by the Treaty; and disclaiming any intention to replace existing
normative procedures by OMCs. In addition, this provision could link to the procedural
safeguards emerging in the new governance by requiring in all OMC processes transparency and
broad participation of all relevant bodies and stakeholders (social partners, NGOs, national
parliaments, local/regional authorities) in accordance with national laws and practices.39
Constitutionalizing the OMC in this way might not be the ―full blast‖ – but it would be a blast.




37
     ―The Union shall work for a Europe of sustainable development based on balanced economic growth and social
     justice, with a free single market, and economic and monetary union, aiming at full employment and generating
     high levels of competitiveness and living standards. It shall promote economic and social cohesion, equality
     between women and men, and environmental and social protection…. It shall encourage solidarity between
     generations and between States, and equal opportunities for all‖ (CONV 528/03).
38
     European Policy Centre, ―Convention Debates Social Europe‖, 11 February 2003.
39
     For proposals of this type, see De Búrca and Zeitlin 2003; European Parliament, Employment and Social Affairs
     Committee, ―Report on Analysis of the Open Coordination Procedure in the Field of Employment and Social
     Affairs, and Future Prospects‖, Rapporteur: Miet Smet, Final A5-0143/2003. The Social Europe WG also
     proposed a generic provision on the OMC, but insisted on specifying the scope and limits of the method, as well
     as the roles of different actors in the procedure, in ways that if enacted might threaten its practical viability.



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           Assuming such a reconciliation fails, what difference, if any, would non-inclusion make
to the future of the OMC? There is no clear answer.40 Constitutional provisions undoubtedly
matter in the EU, and the EES in particular has benefited from the added legitimacy conferred by
its Treaty base in relation both to the Member States and to the Broad Economic Policy
Guidelines. But other OMC processes which have a weaker Treaty base such as social inclusion
have also taken off quite rapidly, eliciting broader participation from civil society at both
national and European level. And even where Member States remain reluctant to acknowledge
the Europeanization of sensitive domestic policy areas by creating formal new OMC processes,
they increasingly make use of closely related procedures in addressing urgent common problems,
as in the case recent developments in policy domains as different from one another as health care
and the fight against terrorism.41 The apparently staid Community Method has almost always run
ahead not just of constitution making but also of constitutional theory in the EU. Whatever the
Convention may ultimately decide, there is little reason to think that the legal and constitutional
hare will overtake the institutional tortoise.


References

To be added.




40
     The Convention Presidium decided not to bring forward a proposal to incorporate the OMC into the draft
     Constitutional Treaty, but left open the possibility of adopting one later in response to the plenary debate. They
     also opined that other draft articles already gave the Union a general competence for the coordination of national
     policies, so that a specific provision on the OMC was unnecessary and might actually prove counterproductive.
     See the remarks of Jean-Luc Dehaene to the Convention Plenary, 4/4/03,
     http://www.europarl.eu.int/europe2004/textes/verbatim_030404.htm.
41
     On the evolution of EU ―policy cooperation‖ in health care, see Baeten 2003; and for peer evaluation of national
     anti-terrorism arrangements, see Council Decision of 28 November 2002 establishing a mechanism for evaluating
     the legal systems and their implementation in the fight against terrorism (2002/996/JHA), Official Journal
     24.12.02.



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