Power and Legitimacy

Reconciling Europe and the Nation-State

Peter L. Lindseth

Power and Legitimacy is a novel legal-historical synthesis of European integration, grounded in an innovative theory of institutional change.
Professor Lindseth traces the many ways that the public law of European integration has built directly on the normative principles of the postwar settlement as well as its key legitimating structures.
Professor Lindseth provides essential legal-historical background to the collapse of the Constitutional Treaty and the difficult ratification of the Treaty of Lisbon; the so-called Kompetenz-Kompetenz debate in national (and particularly German) constitutional jurisprudence; and the nature and legitimacy of European governance relative to constitutional democracy on the national level.

Power and Legitimacy

Reconciling Europe and the Nation-State

Peter L. Lindseth

Description

A succession of crises has marked the last decade of European integration, leading to disorientation among integration scholars. Older frameworks for understanding have been challenged, while the outlines of new ones are only now beginning to emerge. This book looks to history to provide a more durable explanation of the nature and legitimacy of European governance going forward. Through detailed examination of certain fundamental but often overlooked elements in EU history, Peter Lindseth describes the convergence of European integration around the 'postwar constitutional settlement of administrative governance.' 'Administrative' here does not mean 'non-political' or 'technical'-it means that supranational regulatory authority should properly be seen as 'delegated' from national constitutional bodies. As such, supranational policymaking has relied to a significant degree on forms of oversight by national executives, legislatures, and judiciaries, following models of 'mediated legitimation' first developed in the administrative state and then translated into the European context. These national mechanisms developed specifically to overcome the core disconnect in European integration-between exercises of otherwise autonomous supranational regulatory 'power,' on the one hand, and the persistence of the nation-state as the primary source of democratic and constitutional 'legitimacy' in the European system, on the other. It has been through recourse to the legitimating structures and normative principles of the postwar constitutional settlement, this study shows, that European public law has sought to reconcile 'Europe' and the nation-state for more than fifty years.

Power and Legitimacy

Reconciling Europe and the Nation-State

Peter L. Lindseth

Preface

Citation Forms

Abbreviations

Introduction: Reconciling Europe and the Nation-State
Representative Government, Democratic Legitimacy, and "Europe"
Administrative Governance and the Distinction between Control and Legitimation of Regulatory Power
National Legitimation and the Administrative Character of European Governance

1 Situating the Argument: Legal History, Institutional Change, and Integration Theory
1.1 Administrative Governance as an Alternative Analytical Framework
1.2 Delegation as a Normative-Legal Principle
1.3 The Importance of National Antecedents

2 The Interwar Crisis and the Postwar Constitutional Settlement of Administrative Governance
2.1 The Crisis of Parliamentary Democracy and Lessons Learned
2.2 Elements of the Postwar Constitutional Settlement
Delegation and the Legislative Function Redefined
Technocracy and the Leadership of the National Executive
Courts as Commitment Mechanisms: Collective Democracy and Individual Rights
2.3 Mediated Legitimacy and the Conditions for Constitutional Stability in the Two Postwar Eras

3 Supranational Delegation and National Executive Leadership since the 1950s
3.1 A "New Deal" for Europe?: Technocratic Autonomy, the Treaty of Paris, and a National Executive Role
3.2 Toward National Executive Control?: Negotiating the Treaty of Rome
3.3 From Control to Oversight: the Luxembourg Compromise, the European Council, and Beyond

4 Supranational Delegation and National Judicial Review since the 1960s
4.1 The European Court of Justice and Judicially Sanctioned "Spill-over"
4.2 Defining National Judicial Deference to Supranational Delegation, 1960s-1980s
4.3 Defining the Limits of Strong Deference: Kompetenz-Kompetenz in the Constitutional Politics and Jurisprudence of the Last Two Decades

5 Supranational Delegation and National Parliamentary Scrutiny since the 1970s
5.1 The Pivotal Change: Subsidiarity and the Expansion of Supranational Regulatory Power after 1986
5.2 The Institutionalization of National Parliamentary Scrutiny under National Law since the 1970s
5.3 Toward a "Polycentric" Constitutional Settlement: National Parliaments and Subsidiarity under Supranational Law in the 2000s

Conclusion: The Challenge of Legitimizing "Europeanized" Administrative Governance
Beyond Delegation?: Density, Democracy, and Polycentric Constitutionalism
Legitimation and Control Revisited: Toward a European Conflicts Tribunal?
Sovereignty, the Nation-State, and Integration History

Bibliography

Power and Legitimacy

Reconciling Europe and the Nation-State

Peter L. Lindseth

Author Information

Peter L. Lindseth is the Olimpiad S. Ioffe Professor of International and Comparative Law at the University of Connecticut School of Law. He has taught at Yale, Princeton, and Columbia, and also has held fellowships at the Max Planck Institute for European Legal History (Frankfurt), the European University Institute (Florence), and the French Council of State (Paris), among other institutions. Professor Lindseth holds a BA and JD from Cornell and a PhD in European history from Columbia.

Power and Legitimacy

Reconciling Europe and the Nation-State

Peter L. Lindseth

Reviews and Awards

"Peter Lindseth brings real historical depth to the vexed question of the special legal character of the European Union. His conclusion that the European project signals a new transnational stage in administrative governance and administrative law is supported by a rich exploration of the evolving institutional forms and political cultures of the twentieth century European state. Lindseth's urbane style, his subtle grasp of comparative detail, his steady attention to the big picture and his unswerving commitment to making sense of supranational Europe in terms that emphasize the continuity of our legal imagination make this a compelling and rewarding achievement." - Neil Walker Professor of Public Law and the Law of Nature and Nations, The University of Edinburgh School of Law

"Peter Lindseth has written an important book, which has found its moment. Lindseth explains why the EU represents an international offshoot of the administrative state as established at national level. His original and persuasive account, grounded in European political history, has important implications for legitimacy, control and accountability in the EU, explained in exemplary fashion." --Carol Harlow Emeritus Professor of Law, Law Department, London School of Economics

"Peter Lindseth has written a rich and historically informed work that tackles a question of enduring significance for the European Union, namely what the basic source of legitimacy is for this unique supranational economic and political organization. His answer presents a clear challenge to the dominant constitutional understanding of the EU today by arguing that it is best understood as a system of delegated administrative governance, which, following principal-agent theory, rests on national sources of democratic and constitutional legitimacy. Even for those who do not agree with his characterization of the EU, this book is a worthwhile and absorbing read." --Grainne De Burca Professor of Law, Harvard Law School

"A highly valuable analysis of the administrative roots of the European Union, which will be of real service to scholars and students in the field. Lindseth provides a nuanced and compelling account of the sources of European legitimacy, which makes an important contribution to our understanding of the roots and future possibilities of European integration." -Francesca Bignami George Washington University Law School, OpinioJuris.org

"[A] rich comparative and historical account of European integration. Lindseth sets a timely and important scholarly agenda calling for a more penetrating analysis of European integration, its past and its future, through a careful understanding of what ideas were received and promoted by political and legal elites and what were the unintended consequences of the integration process." -Fernanda Nicola American University, Washington College of Law, OpinioJuris.org

"An outstanding theoretical account of the concept of legitimacy. I commend it to everyone." -Ken Anderson, American University, Washington College of Law, OpinioJuris.org Visiting Fellow, The Hoover Institution on War, Revolution and Peace, Stanford University

"For historians, legal scholars and political scientists interested in the EU's legitimacy, Power and Legitimacy is a must read. Exhaustively researched and carefully argued, it is a model of interdisciplinary scholarship and analysis." --R. Daniel Kelemen, Rutgers University, The Columbia Journal of European Law

"A major contribution to the history of European integration . . . a major accomplishment of historical literature, well written, original and thought provoking. This is simply mandatory reading for any scholar of European integration history." --Morten Rasmussen, University of Copenhagen, Journal of European Integration History

"If our quest is for a systematic, elegant, and compelling theory of European integration that performs consistently on both the descriptive and the normative planes, then Power and Legitimacy is one of the very best examples of its kind. If the present author's experience is any guide, scholars of the constitutional persuasion will find themselves reopening a case they thought they had won." -Türküler Isiksel, Columbia University, European Constitutional Law Review

"A sober, historically grounded reminder of the EU's roots in national constitutional law and of the fact that the European Union institutions exercise powers delegated to them under national constitutional law... superbly done and full of new insights." -Bruno De Witte, University of Maastricht, European Constitutional Law Review

"The thorough analysis of national executive leadership, parliamentary scrutiny, and judicial review that Lindseth undertakes . . . leads to a clear-cut opposition between 'administrative' and 'constitutional' integration. This is a step forward in our intellectual debates." -Stefano Bartolini, European University Institute, European Constitutional Law Review