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Lindseth on Administrative versus Constitutional Governance in Europe

By Lawrence Solum

Peter L. Lindseth (University of Connecticut School of Law) has posted Introduction: Reconciling Europe and the Nation-State (RESISTANCE AND RECONCILIATION: EUROPEAN INTEGRATION, ADMINISTRATIVE GOVERNANCE, AND THE NATION-STATE IN HISTORICAL PERSPECTIVE, Oxford University Press, 2010) on SSRN. Here is the abstract:

European governance is ?administrative, not constitutional.? That is the basic thesis of my forthcoming book, RESISTANCE AND RECONCILIATION: EUROPEAN INTEGRATION, ADMINISTRATIVE GOVERNANCE, AND THE NATION-STATE IN HISTORICAL PERSPECTIVE (Oxford University Press, 2010). The Table of Contents and Introduction are now posted on SSRN for review and comment.

This book approaches the problem of European governance from the perspective of the legal development of the administrative state over the course of the twentieth century. It describes the convergence of European public law and institutional practice around the legitimating structures and normative principles of what this study calls ?the postwar constitutional settlement of administrative governance.? The process of European integration has had, without doubt, profound constitutional implications for its constituent states. It has both disciplined certain negative externalities of national democracy and offered market actors a range of transnational rights and duties, all in order to construct a new market-polity transcending national borders. Nevertheless, this polity has had great difficulty being understood as ?constitutional? in its own right. Most importantly, it has struggled to be seen as the embodiment or expression of a new political community (?Europe?) capable of self-rule through institutions historically ?constituted? for that purpose. Rather, as with all forms of administrative governance, European integration has remained ultimately dependent, for its democratic and constitutional legitimacy, on the ?constituted? bodies of ?representative government? on the national level ? legislative, executive, and judicial.

This historical synthesis challenges an idea widespread among legal scholars of integration: that European governance is built on a set of ?institutions constitutionally separated from national legitimation processes.? To the contrary, the mechanisms examined in this book have developed historically to overcome the seeming disconnect at the heart of integration, between otherwise autonomous exercises of supranational regulatory power, on the one hand, and the national sources of democratic and constitutional legitimacy, on the other. Much less than reflecting the purportedly ?sui generis? character of ?multilevel? or ?polyarchical? governance in Europe (three commonly deployed rubrics), these mechanisms have an identifiable historical pedigree. They are grounded in models of administrative legitimation that emerged in postwar Western Europe in response to the disastrous constitutional failings of the interwar years. For that reason, to understand integration, historical attention to the antecedent stabilization of administrative governance on the national level is essential.

By conforming to the normative demands of the postwar settlement (most importantly, "delegation" and ?mediated legitimacy?), European public law has sought to reconcile the functional realities of integration with the continuing role of the nation-state as the primary locus of democratic and constitutional legitimacy in the European system. This reconciliation has tolerated a good deal of autonomous regulatory power in what has become an increasingly dense and complex sphere of ?Europeanized? administrative governance. Nevertheless, this process of reconciliation has also included a significant amount of normative resistance to the autonomously ?constitutional? pretenses of European supranationalism (as if the EU were somehow capable of self-government through institutions independently ?constituted? for that purpose). By describing the interrelationship between resistance and reconciliation in the evolution of European public law, this book seeks to draw on history to develop a better understanding of the nature and legitimacy of European governance going forward.

Full post as published by Legal Theory Blog on January 06, 2010 (boomark / email).