It is often claimed that EU policy lacks legitimacy. For instance, the underlying concern of what is called its democratic deficit is that only democracy confers the kind of legitimacy that is required in order to justify the exercise of power by a political actor. We have seen that Vivien A. Schmidt accepts the idea that the EU, on conventional ideas of how legitimacy should be understood, lacks the legitimacy of a nation state. But, she argues, this does not mean that the EU lacks democratic legitimacy (Schmidt 2006, 20). An important part of her argument is relinquishing nation state requirements. Since we are operating with a notion of the political in the tradition of Carl Schmitt (no relation), which likewise divorces political concepts from their usual state context, this kind of approach is important to our purposes. But this is not simply a matter of internal coherence. Contemporary EU research has to come to terms with the reality of ‘governance’ in a way that does not reduce the concept to the national level, since decision-making that ‘binds’ or compels citizens has extended beyond national borders (Jachtenfuchs & Kohler-Koch 2013, 14). Schmidt’s point is that it is all too easy to argue that the EU falls short of nation state requirements; as a regional state, it should be evaluated by different criteria. This means, for one thing, that the concept of legitimacy has to be considered from a conceptual angle that does not automatically place it within the fixed borders of a nation state. How should we then conceive of it? Fritz Scharpf (1999) gives us the conceptual tools to evaluate the EU’s legitimacy by making a highly general distinction between input and output legitimacy. He goes on to describe the EU’s legitimacy in terms of that distinction.

In order for an exercise of power to be legitimated, it needs to be interpreted as an expression of collective self-determination. What is required for such self-determination is in itself a complex, controversial and value-laden [wertbehaftet] matter (Scharpf 1999, 16). In the history of normative political theory, two “different, but complementary perspectives” have been formulated: the input-oriented and the output-oriented perspective. This roughly reflects Lincoln’s famous triplet: government needs to be of the people, by the people (input) and for the people (output). If we adopt the input-oriented perspective, political decisions are legitimate if they reflect the will of the people: that is, if they can be derived from the authentic preferences of members of the community. On the other hand, if we adopt the output-oriented perspective, political decisions are legitimate when they promote the common good of the community. The two perspectives are mostly used in complementary fashion. However, they can be analytically distinguished and, what is more, they rest on highly different conditions. Even more importantly, they are different in that they imply different diagnoses of the democratic legitimacy of power in Europe (ibid).

As Scharpf notes, in traditional accounts of legitimacy, the emphasis on input legitimacy is often traced back to Rousseau, and output legitimacy to the Federalist papers or, as Schmidt claims, Montesquieu (Scharpf 1999, 16n; Schmidt 2006, 21). In Rousseau, as we have seen, the general will functions simultaneously as the full agreement of all with all, in the sense of the authentic preferences of members of the community, and as the securing of the common good [bien publique]. However, it is clear that the general will qua will indeed has a legitimizing function that is based on what is willed by the community itself. The problem of consequent authors on legitimacy has been that Rousseau’s strategy of postulating a universal will of the community, that stands over and above particular wills, was no longer available. In contemporary democratic theory, a consensus between particular wills has to be achieved. Because this cannot always be achieved when interests diverge, the justification of majority rule has to be viewed as the central problem of input-oriented theories of democratic legitimacy (Scharpf 1999, 17). We have to justify the fact that individual wills are overridden. This requires an additional, non-formal condition: the trust of the minority in the majority, which presupposes that the community is perceived as a unity (ibid, 18). That presupposes a process through which a community is constituted and shaped on various levels: communication, memory and experience (Kielmansegg 2013, 58; see also Habermas 2012, 21 and Brunkhorst 2004, 93-94).  On the level of the nation-state, where collective identities are more or less secure, such considerations are purely ‘academic’. For the EU, however, this is completely different: the EU, being “far removed from a strong collective identity” as a result of the “historical, linguistic, cultural, ethnic and institutional differences between the member states”, cannot assume the ‘perceived unity’ of the community – in Max Weber’s terms, there is no Gemeinsamkeitsglauben (Scharpf 1999, 18-19).

This means that there is no democratic justification of majority rule in European politics. The ‘binding’ nature of majority decisions in the Council of the EU, where national heads of government convene on the European level, therefore cannot be said to constitute a legitimate decision from the point of view of member states that are in the majority. Assuming that perspective, there is no fundamental distinction between the majority’s right to decide and the imposed rule of external parties (Kielmansegg 2013, 57). European input legitimacy can only be secured to the extent that a Europe-wide political process of communication and opinion-formation can be established: an image that is far removed from the current state of affairs (Schmidt 2006, 36-45; see also Kielmansegg 2013, 60 and Bourdieu 2002, 39). If we cannot bring about such a European ‘public space’, European decision-making would require the unanimous agreement of democratically legitimated national governments in the Council of the EU (Scharpf 1999, 20). Under present conditions, this seems an almost impossible threshold. For that reason, output legitimacy iz the more promising avenue for the discovery of ‘European legitimacy’, and perhaps the only one. This means looking for legitimacy in terms of an “efficient but not very democratic Europe” (Brunkhorst 2004, 98). Our next step will be to consider what kind of legitimacy can be secured through these means.

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