This volume is fundamentally about institutional change. The volume is not merely cautious in its overall assessment, but also cautionary, particularly as the contributors seek to understand the institution of democracy in relation to two social developments – digitalization and globalization – that are certainly disruptive but also potentially revolutionary. Regardless of how the most optimistic scholars and theorists conceptualize the new forms of transnational governance that seem to be emerging (particularly in the internet domain), the broader public may be experiencing these forms not as a new kind of democracy but as democracy’s negation – a kind of digital technocracy. The elites who populate the various fora of transnational governance – who occupy positions of power by virtue of participation in business, bureaucratic and technical networks – remain effectively immune from removal by any bottom-up collective political mobilization against them. This gives rise to a kind of political-cultural resistance that may contribute to the overall ‘stickiness’ of traditional forms of representative government on the national level in the face of the seeming functional demands posed by digitalization and globalization.
Peter L. Lindseth
This chapter questions the dominant legal description of the EU, centered on the jurisprudence of the European Court of Justice (ECJ), which views the EU as a 'constitutional' level of governance in its own right. What a less ECJ-centric analysis tells us is that, despite what EU judges, lawyers, and law professors maintain, there are numerous features of EU public law that are not merely in tension with, but also that directly contradict, the dominant constitutionalist discourse. First and foremost, the EU remains almost entirely dependent on the Member States for the sine qua non of genuine constitutional power: the legitimate capacity to extract in a compulsory fashion and then redirect – what I am calling ‘mobilize’ – either fiscal resources (taxing and spending) or human resources (policing and defense) for the benefit of the polity as a whole. Secondly, even as to regulatory power that falls short of compulsory resource mobilization – particularly rulemaking and adjudicative power – the EU remains dependent on mechanisms of national oversight and intermediation that channel the more robust democratic and constitutional legitimacy of national institutions to the EU level. These mechanisms of ‘mediated legitimacy’ – drawing importantly on models developed in the postwar administrative state – have been central features of the institutional development of EU governance since its inception. Armed with this analytical framework, we can begin to answer the core question posed by this chapter: What’s in a label? Stated in the most direct way possible, this chapter argues that it matters a great deal legally how we view the EU socio-historically, particularly in this challenging task of reconciliation. If we determine that the EU is not properly understood as autonomously ‘constitutional’ but instead is merely an ‘administrative’ level of governance (even of a novel, powerful, supranational type), this then has significant implications for how to reconcile EU law with its properly administrative character. Most importantly, it suggests that we should deeply question the nominal ‘as if’ constitutionalism of the ECJ, rethinking fundamental judicial doctrines to bring them more into line with the EU’s deeper administrative character in a socio-historical sense.