European Ways of Law: Towards a European Sociology of Law (Onati International Series In Law And Society) 1841137774, 9781841137773

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European Ways of Law: Towards a European Sociology of Law (Onati International Series In Law And Society)
 1841137774, 9781841137773

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EUROPEAN WAYS OF LAW Can there be such a thing as a European sociology of law? The uncertainties which arise when attempting to answer that straightforward question are the subject of this book, which also overlaps into comparative law, legal history, and legal philosophy. The richness of approaches reflected in the essays (including comparisons with the US) makes this volume a courageous attempt to show the present state of sociolegal studies in Europe and map directions for its future development. Certainly we already know something about the existence of differences in the use and meaning of law within and between the nation states and groups that make up the European Union. They concern the role of judges and lawyers, the use of courts, patterns of delay, contrasts in penal ‘sensibilities’ or the meanings of underlying legal and social concepts. Still, similarities in ‘legal culture’ are noticeable in societies at roughly similar levels of political and economic development. This volume should serve as a needed stimulus to a research agenda aimed at uncovering commonalities and divergences in European ways of approaching the law.

Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW General Editors William LF Felstiner

Johannes Feest Board of General Editors

Rosemary Hunter, University of Kent, United Kingdom Carlos Lugo, Hostos Law School, Puerto Rico David Nelken, Macerata University, Italy Jacek Kurczewski, Warsaw University, Poland Marie Claire Foblets, Leuven University, Belgium Roderick Macdonald, McGill University, Canada

Titles in this Series Social Dynamics of Crime and Control: New Theories for a World in Transition edited by Susannah Karstedt and Kai Bussmann Criminal Policy in Transition edited by Andrew Rutherford and Penny Green Making Law for Families edited by Mavis Maclean Poverty and the Law edited by Peter Robson and Asbjørn Kjønstad Adapting Legal Cultures edited by Johannes Feest and David Nelken Rethinking Law Society and Governance: Foucault’s Bequest edited by Gary Wickham and George Pavlich Rules and Networks edited by Richard Appelbaum, Bill Felstiner and Volkmar Gessner Women in the World’s Legal Professions edited by Ulrike Schultz and Gisela Shaw Healing the Wounds edited by Marie-Claire Foblets and Trutz von Trotha Imaginary Boundaries of Justice edited by Ronnie Lippens Family Law and Family Values edited by Mavis Maclean Contemporary Issues in the Semiotics of Law edited by Anne Wagner, Tracey Summerfield, and Farid Benavides Vanegas The Geography of Law: Landscapes, Identity and Regulation edited by Bill Taylor Theory and Method in Socio-Legal Research edited by Reza Banakar and Max Travers Luhmann on Law and Politics edited by Michael King and Chris Thornhill Precarious Work, Women and the New Economy: The Challenge to Legal Norms edited by Judy Fudge and Rosemary Owens

Juvenile Law Violators, Human Rights, and the Development of New Juvenile Justice Systems edited by Eric L Jensen and Jørgen Jepsen The Language Question in Europe and Diverse Societies: Political, Legal and Social Perspectives edited by Dario Castiglione and Chris Longman Globalisation and Resistance: Law Reform in Asia since the Crisis edited by Christoph Antons and Volkmar Gessner Constitutional Politics in the Middle East: With special reference to Turkey, Iraq, Iran and Afghanistan edited by Saïd Amir Arjomand

European Ways of Law Towards a European Sociology of Law

Edited by

Volkmar Gessner and David Nelken Oñati International Series in Law and Society A SERIES PUBLISHED FOR THE OÑATI INSTITUTE FOR THE SOCIOLOGY OF LAW

OXFORD AND PORTLAND OREGON 2007

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© Oñati IISL 2007

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Typeset by Compuscript, Shannon Printed and bound in Great Britain by TJI Digital, Padstow, Cornwall

Acknowledgements The First European Socio-Legal Conference under the title ‘European Ways of Law’ was organised by the Oñati International Institute for the Sociology of Law. During the time of preparation—which lasted some 18 months—I was assisted as the Scientific Director by an Advisory Board. Among those colleagues I would particularly like to mention Susanne Karstedt who shared with me her experience of international meetings and her knowledge of interested and interesting people. Most chair persons of our sessions were active in attracting speakers and Luigi Comminelli was among the most active. Assya N Ostroukh was extremely helpful in establishing contacts with socio-legal scholars from Russia although in the end we weren’t successful in raising sufficient funds to invite them to participate in the event. Many other people from our scientific community, from the Basque Goverment and the town of Oñati, were helpful but the lion’s share of my gratefulness goes to the staff members of the Oñati Institute and among them Malen Gordoa Mendizabal. Since she is already world-famous as a workshop organiser I only want to add that one also could not think of a better conference organiser. My warmest thanks for an excellent and imaginative cooperation—eskerrik asko Malen! Volkmar Gessner

Foreword JOXERRAMON BENGOETXEA

It is with great pleasure that I write this Foreword to the book which collects the selected proceedings of the First Oñati Socio-Legal Conference— European Ways of Law. I myself participated in this Conference and made a small contribution on the European ways of constitutionalism which I very gladly discussed with colleagues. I found it most enjoyable and intellectually stimulating to participate in this Conference and meet so many interesting socio-legal scholars. Anyone who has been to the Oñati Conferences, workshops or to the Master, or even to the Law and Society Library as a research visitor can testify to the special flavour of Oñati and the Basque Country. The level of the presentations was really very high. I hope we can keep that high standard for the next Conference. Indeed the title Ways of Law is so telling and so close to the idea of legal culture, that we have selected it as the general title for the cycle of Conferences that will, hopefully be held in Oñati every other year. The next one, in July 2007, will be dedicated to Latin America, and will have the title ‘Latin American Ways of Law: Democracy, Development and Liberation’. I do hope it will be as successful as the European one. Interesting things are happening in Latin America in many different respects and it is with some degree of modesty that we approach the issues from the European continent because we have a lot to learn. We shall be dealing with issues like Sustainable Development, Transitional Democracies, Access to Justice, Restorative Justice, Indigenous Peoples, the system of Ombudsmen, the patterns of migration, etc. The ways of law are many; but interestingly the word for law in the Basque language is zuzenbidea, which means the way of justice, or fairness, but also the straight way or path, bringing connections with many who have looked for paths, avenues and patterns in the law; after all, the rules and the norms are all standards for the correct adoption of measures. Ways can also be the different styles, forms, manners of doing law and it points to movement. At the International Institute for the Sociology of Law we have this very clear international, global understanding of legal phenomena and of the scholarly dimension of socio-legal studies. That is why we can say with some pride that Oñati is the World Centre for Sociology of Law or Socio-legal studies. Our Master in Sociology of Law is a truly international

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Master; and our students and teachers do come from literally all over the world. Our workshops attract scholars from all around the Globe and we receive visitors weekly from every continent. Language is not a barrier; on the contrary, it is an asset. May I finish by congratulating the editors for this volume. I know they have worked very hard. I can see it for myself now, trying to organise the next Ways of Law Conference. And this is nothing compared to the hard work all our collaborators at the Institute are doing in their different departments. Agur Bero Bat Denoi

Contents Foreword ................................................................................................. ix Joxerramon Bengoetxea Contributors .......................................................................................... xiii Introduction: Studying European Ways of Law......................................... 1 Volkmar Gessner, David Nelken A

Theorising ‘European’ Legal Culture ................................................ 19

1 Images of Europe in Sociolegal Traditions......................................... 21 Roger Cotterrell 2 American and European Ways of Law: Six Entrenched Differences ..... 41 Robert A Kagan 3 La place paradoxale de la culture juridique Americaine dans la mondialisation ................................................................................... 71 Antoine Garapon 4 Globalisation and the Rise of Procedural Informalism in Europe and America .......................................................................... 93 Wolf Heydebrand 5 American and European Forms of Social Theory reflecting Social Practice ............................................................................................ 141 Richard Münch B

Re-constructing Europe ................................................................... 173

6 ‘Cold War Law’: Legal Entrepreneurs and the Emergence of a European Legal Field (1945–1965) ................................................. 175 Antonin Cohen and Mikael Rask Madsen 7 The Transformation of Sub-State Nationalism in Conflicted Societies: the Impact of European Constitutionalism ....................... 203 Victoria Jennett 8 Is There the Spirit of the European Laws? Critical Remarks on the EU Constitution-making, Enlargement and Political Culture .... 233 Jirˇí Prˇibánˇ

xii Contents 9 How to Conceptualise Law in European Union Integration Processes? Perspectives from the Literature and Empirical Research .................. 255 Bettina Lange C

European Styles of Legal Regulation............................................... 277

10 EU Ways of Governing the Marketing of Pharmaceuticals— a Shift towards more Integration, Better Consumer Protection and Better Regulation? .................................................................... 279 Bärbel Dorbeck-Jung and Mirjan Oude Vrielink-van Heffen 11 Embedded and Disembedded Rationality: Contributions to Global Governance from European and US American Legal Cultures ........ 305 Gerd Winter 12 Dutch Legal Culture and Technological Transitions—the Impact of Dutch Government Interventions .................................................... 327 Helen Stout and Martin de Jong 13 Early Intervention and the Cultures of Youth Justice: A Comparison of Italy and Wales .................................................. 349 Stewart Field and David Nelken Index..................................................................................................... 375

Contributors Cotterrell, Roger, Fellow of the British Academy; Anniversary Professor of Legal Theory at Queen Mary and Westfield College, University of London, UK. Email: [email protected] De Jong, Martin, Associate Professor of Public Management, Delft University of Technology, Faculty of Technology, Policy and Management, Delft, The Netherlands. E-mail: [email protected] Dorbeck-Jung, Bärbel R, Associate Professor of Law and Legal Governance, University of Twente, Faculty Management und Governance, Netherlands. E-mail: [email protected] Field, Stewart, Senior Lecturer at Cardiff Law School. E-mail: [email protected] Garapon, Antoine, Institut des Hautes Etudes sur la Justice, Paris. E-Mail: [email protected] Gessner, Volkmar, Professor of Sociology of Law and Comparative Law, Law Faculty, University of Bremen, Germany. E-mail: [email protected] Heydebrand, Wolf, Professor Emeritus, Department of Sociology, Faculty of Arts and Science, New York University, New York, USA. E-mail: [email protected] Jennett, Victoria, Ph.D, Marie Curie Fellow “Peace, Migration and Conflict in Global Society”, University of Deusto, Basque Country, Spain; Researcher, Department of Law, European University Institute, Florence, Italy. E-mail: [email protected] Kagan, Robert A, Professor of Political Science and Emanuel S. Heller Professor of Law, University of California, Berkeley. E-mail: [email protected]

xiv Contributors Madsen, Mikael Rask, Researcher at the University of Copenhagen, Faculty of Law; associate of the Centre de sociologie européenne, Paris. E-mail: [email protected] Münch, Richard, Professor of Sociology at the Faculty of Social and Economic Sciences, University of Bamberg, Germany. Speaker of the graduate Programme “Markets and Social Systems in Europe”. E-mail: [email protected] David Nelken, Distinguished Research Professor of Sociology at the University of Macerata, Italy. He is also Distinguished Research Professor of Law in the University of Wales, Cardiff, UK and Honorary Professor of Law at the London School of Economics. For 2007–2008 he will be the Wiarda Professor at the Faculty of Law, Utrecht, the Netherlands. E-mail: [email protected] Priban, Jiri, Professor of Law, Cardiff University, United Kingdom and Visiting Professor of Sociology and Philosophy of Law, Charles University, Prague, the Czech Republic. Email: [email protected] Stout, Helen D, Professor of Law and Infrastructures, Fellow of the Royal Netherlands Academy of Arts and Sciences, Delft University of Technology, Faculty of Technology, Policy and Management, Delft, The Netherlands. E-mail: [email protected] Winter, Gerd, Professor of Public Law and Sociology of Law, Director of The Research Unit for European Environmental Law, Law Faculty, University of Bremen, Germany. E-mail: [email protected]

Introduction: Studying European Ways of Law VOLKMAR GESSNER AND DAVID NELKEN

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his volume represents an attempt to show what is currently meant by talking of European Ways of Law. It contains a selection from the papers presented at the first European sociolegal conference on this topic, held at the International Institute for the Sociology of Law, Oñati, Basque Country, Spain, on 6–8 July 2005. Of the large number of papers discussed during this event, we chose those that came closest to the overall conference theme. In this introduction we shall first say something about the current state of a European sociology of law, and then present a brief overview of the papers we have included. I. TOWARDS A EUROPEAN SOCIOLOGY OF LAW1

Can there be such a thing as a European sociology of law? What does, or what should, this involve? What problems does it face? Is it too early to try and develop such a shared enterprise? Or is it too late? We could, on the one hand, say that it is too early given the difficulty of overcoming profound differences in language, culture and academic traditions which are inextricably intertwined with modes of thinking about, experiencing and studying law. Such contrasting ‘legal epistemes’, it is claimed, cannot communicate. For present purposes, it is enough to think of the enormous variation in the importance different European jurisdictions give to the value of ‘empirical’ information about the operations of law. On the other hand we could also have made the opposite argument. It could be thought to be now too late, though. With the advent of globalisation, it would be a retrograde step to want to limit our research to a ‘place’ identified as Europe. Europe and European law are formed and reformed as part of the ever-increasing flows of people and ideas in the larger world (albeit in different roles in the first, second and third world). Many legal 1 This part of the introduction is based on the previously published report of the conference by David Nelken in the UK Social and Legal Studies Association’s Newsletter October 2005, 1–6, and in the Research Committee of Sociology of Law’s Newsletter April 2006, 2–7.

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practices are anchored in the history, social structure and culture of particular societies but methods of law making and dispute handling not only reflect but also help transform the societies in which they operate (Chase, 2005). And they are often, or even typically, also influenced by developments in other places. The search for a distinct European identity has to come to terms with the variety of groups and populations who already make up the European Union (and Turkey has real prospects of becoming a member soon). Many of Europe’s citizens belong to diasporas stretching well beyond Europe’s boundaries and are bearers of traditions that are as old as, or may even pre-date, Europe. But perhaps these uncertainties are exactly the shifting terrain on which we have to try and construct a European sociology of law? Certainly we could just dispose of the issue by arguing that the truths of science know no boundaries. But are we so convinced that the sort of sociology of law we engage in really is universally relevant? And why, then, have national associations? Why is it that sociology, criminology and social policy all feel the need to have their own European associations and journals? Arguably law is, and needs to be, even more local or even parochial than these intellectual disciplines. In any case there is a specific body of European Union Law to contend with. Indeed one of the most controversial features of European Union governance is its attempt to integrate through law. Yet, although important work is going on throughout Europe we are far from seeing the emergence of a single academic community addressing common issues. Unlike the situation in the USA with its flourishing Law and Society Association, there is no organisational link, no journal, and no annual conference where all the different disciplines (Sociology of Law, Law and Economics, Legal Anthropology, Political Science, Comparative Law, Critical Legal Studies etc) can easily communicate, form networks and social circles, develop fashions, establish and change paradigms and build on each other’s accomplishments (Becher, 1989). Even between socio-legal tribes in a narrow sense there are enormous differences when we compare their European territories. There is no recent survey of the field (see Ferrari, 1990) and there can be legitimate disagreements about what sociology of law should be about. But the Oñati Conference confirmed that the UK (Cownie, 2004) and Holland (Griffiths, 2006) seem to make most of the running as far as empirical research is concerned. In Fiona Cownie’s recent survey among English legal academics, half of all the respondents described themselves, without hesitation, as taking a socio-legal or Critical Legal Studies approach to teaching and researching law (Cownie, 2004: 54). The British Economic and Social Research Council noted (in 1994) that at least sixty-five universities and five independent research institutes are conducting socio-legal research (Cownie, 2004: 51). No other European country shows such a lively socio-legal community. Worse, just when the subject is most needed, many continental law faculties are closing down non-doctrinal

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approaches to law so that their entire socio-legal population is reduced to a few dozen of academics. This is true for Germany, France and Spain, and we hear similar observations from Austria, The Netherlands, Poland, and the Scandinavian countries. II. AN AGENDA FOR THE FUTURE?

The European Ways of Law Conference, valuable as it was, hardly scratched the surface of the intellectual issues that may be seen as the agenda of a future European sociology of law. Because Europe is both a place to study and a place that studies and helps to spread law (with or in competition with America and others) such an endeavour would need to encompass Law ‘in Europe’, ‘for Europe’, and ‘by Europe’. More specifically, research is needed in order to: 1. understand the internal differences within Europe and the way these are changing in processes of globalisation; 2. consider the role of law in the process by which European polities are actually coming together, or should come together; 3. clarify the similarities and differences between Europe, the US, the Islamic world, Asia etc. with regard to legal epistemes, legal cultures and legal traditions; 4. examine the role of European law in the wider/globalising world; and 5. consider the different ways of studying law sociologically in Europe and the way this reflexively helps shape law itself. All this requires comparative approaches that are unfortunately not well developed in Europe. This is testified to by submissions received for this volume. Although the editors hoped to publish a range of papers contrasting European ways of law in more than one jurisdiction almost no such comparative studies were forthcoming. The difficulties of organising comparative research projects should not be underestimated. But Europe is an ideal laboratory for studying how law in action varies and how far different legal cultures are changing—especially regarding the differential application of European Union law and global law in the European Union and the influence of so-called ‘soft law’ in different countries. For many of these tasks we can find a clear and increasingly evident overlap with comparative law, legal history and legal philosophy. But it will also be necessary to look further afield to other social sciences and cultural studies to keep up with debates over relevant problems of comparative method and how to represent ‘other’ realities without falling into the trap of ‘Orientalism’ or ‘Occidentalism’. It was striking, for example, how much Garapon has struggled to make himself understood as he tried

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to explain to scholars trained in Anglo-American ways of thinking why ‘law’ in continental Europe is precisely not considered a matter suitable for negotiation and mediation. From a sociological point of view, comparative law scholars have so far tended to focus too much on private law matters and on the differences or similarities between common law and civil law traditions. Together with social scientists they have, however, done important work on the differences between the West and the East as the former communist countries seek to re-model their law so as to be admitted to the EU ‘club’ or become more like the West (but this could change). But few scholars have thought to explore differences going from the north to the south of Europe. The idea of ‘law as fact’ so stressed by the Scandinavian Realists had more to do with law as a body of norms than it did with the facts at the centre of American Legal Realism. But the adoption of law for ‘social steering’ is in marked contrast to the extent to which countries in southern Europe tend to treat the law as a ‘counter-factual’ ideal. Such comparisons could provide real insight into our field’s fundamental question of variation in the way law and society interrelate as well as help each side learn something about itself. It will suffice here to provide a few illustrations of the type of enquiries that could be (or are being) pursued under the other headings. Students of EU law examine the way the same law may be applied differently in different places and predict trends towards convergence or to less predictable ‘irritation’ as legal and social systems try to communicate. But the problem of how to define ‘success’, and who gets to define it, remains open. There are fundamental differences in expectations as to what we should want from European law. If Habermas asks us to move to a European citizenship that uses law as a way of keeping ethnicity in its proper place, the Basque Minister of Justice who introduced the Oñati conference, explained that, from his political perspective with its fear of threats to the identity of minorities, he hoped for a Europe of ‘all the peoples’. As interesting is the way that all-penetrating flows of communication now transform the processes of imposition, imitation or resistance that lead to sociolegal change. Europe is thus just another ‘glocal’ site for what Appudurai has called ‘ideoscapes’ (Appadurai, 1991). Legal practices and ideas reproduce themselves in a space of ‘intercultural legality’ that is increasingly shaped by awareness of other ways of doing things rather than by conditions ‘at home’. Rather than taking any existing society as a model, what counts more is simply the desire to be ‘normal’. Once relative statistics of prison rates in Europe began to be published, for example, a self-conscious move to the ‘norm’ led policy-makers in Finland to set out to reduce the number of people incarcerated, while the Dutch felt entitled to go the other way.

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But European law also exists through its success in expanding outside its own space. How much is the drive to harmonisation driven by the need to compete abroad? Certainly, American approaches to criminal and civil justice exert great influence worldwide. On the other hand, when AngloAmerican business-friendly law and European Continental codified systems engage in competition it is not always the former who wins out. European personnel and ideas are heavily involved in transnational organisations such as the European Court of Human Rights as well as in a variety of non-governmental organisations. Of all the items on the above agenda it is probably the first that is the most urgent, given the way the European Union bureaucracies and court decisions tend (often deliberately) to run ahead of the ideas and practices of the groups that produce the ‘living law’ within each society. Certainly we already know something about the existence of differences in the use and meaning of law within and between the nation states and groups that make up the European Union. Whether they concern the role of judges and lawyers, the use of courts, patterns of delay, contrasts in penal ‘sensibilities’, or the meanings of underlying legal and social concepts, differences in ‘legal culture’ (Nelken, 2006a) are at least as remarkable as the similarities that we might expect to find in societies at roughly similar levels of political and economic development. Nor do these differences lack potential practical and policy implications. How can it be that in Italy most young people who commit murder do not even get a criminal conviction? How far, if at all, does this depend on special social conditions that only prevail in Italy (Nelken, 2006b)? But while context is important, it may not always be all-important. We must be careful not to assume that institutions, practices and ideas necessarily emerged in the society in which they are currently situated. Beccaria’s ideas about punishment found much readier audiences abroad than in Italy. Europe is heir to a variety of legal cultures. Comparative lawyers see European (private) law split into four ‘legal families’, namely the Roman, Germanic, Scandinavian and Common law families (Zweigert and Kötz, 1998). Sociologists of law look more closely and find within these ‘families’ divergences in regulatory styles, court practices, alternative dispute resolution, legal professions, crime rates, etc (Gessner, Höland, Varga, 1996). More generally, social scientists point to multiple forms of norm creation and norm implementation (Münch, 1993: 157–181). On the other hand, the EU production of unified or harmonised law and implementation practices represents a common trend away from formal law under the influence of the European Court of Justice. Together with European Union directives and regulation by soft law this may give rise to what has been described as a ‘new European legal culture’ (Hesselink, 1992). A possible common denominator of European legal thinking may be its rejection of the idea that law should be governed by the market, rather than

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the other way around (Mattei, 2005). A central theme of this volume is in fact the question of to what extent it is fair to characterise European ways of law as diverging from what Robert Kagan, in his account of US adversarial legalism, has called ‘the American way of law’. Wolf Heydebrand, in his chapter, tells a rather different story of similarities and differences which revolves more around the spread of what he calls ‘procedural informalism’. This, and the use of ‘soft law’, certainly do seem to be a common trend in the sphere of transnational legal processes. David Nelken has also raised a series of reservations with respect to Kagan’s thesis (Nelken, 2003). He points out that the contrast between American legalism on the one hand, and policy-driven bureaucratic regulation in Europe on the other, oversimplifies the variety of legal styles and regimes in Europe. We could take as one example the differences between many countries in Northern Europe as compared to southern Europe. Countries that have a ‘strong’ conception of the State do not necessarily put this into practice. In general Kagan seems more interested in using ‘Europe’ as a foil for his critique of the US than he is in exploring the varieties or downsides of the European experience of law. There is also the not unimportant issue of whether the UK (or, for many purposes, more precisely England and Wales) should be seen as having more in common with the US, or be seen as more similar to other European countries. The answer is likely to vary by type of sociolegal area, as is illustrated in the chapter in this volume by Field and Nelken which contrasts the Italian with the English and Welsh response to juvenile crime. But these objections do not go so far as to undermine Kagan’s basic claim that there are important differences between law in the US and in Europe, and that these are likely to remain for the forseeable future. Some authors (from the US as much as from Europe) treat the existence of a European patchwork of divergent communities, ideas and institutions as an opportunity rather than considering it a problem. Jeremy Rifkin, for example, contrasts the American dream with the European dream (Rifkin, 2004). He claims that the American over-emphasis on property, market competition, territory and central power is leading to global destruction, whereas the European dream with its decentralised multilevel government, networks, human rights protection and nature conservation may become a better model for global coexistence and survival. From this perspective there may even be advantages in the fact that so much European sociolegal research is scattered, unorganised, and lacking any centre or governing structure. Still, Rifkin emphasises, a prerequisite for social impact are well-developed and lively networks. Even if not all of the chapters in this collection discuss the transatlantic dimension, it is fair to say that most European sociolegal research is done ‘in the shadow’ of US-American publications. Many theoretical approaches have their origin in the US sociolegal community and empirical studies carried out in the US are frequently used as evidence for legal practice

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everywhere, including Europe. This in itself my help produce a trend towards convergence between ‘Western’ legal cultures. In a recent article Mauricio García-Villegas (2006) compares the working conditions and power struggles within the area of law in the US and Europe (in particular France). Grounded on Bourdieu’s theory, García-Villegas compares legal fields—the history, internal structure and power relations of legal scholars, judges, movements and schools of thought on both sides of the Atlantic. Divergences prevail due to a different role attributed to the state, the law, legal doctrine, legal education and, last but not least, to social-scientific knowledge. Whereas European law professors and judges have successfully established and defended their prestige, their social capital and their power by claiming the autonomy of law, in the American context the same group of legal professionals for the same purpose became anti-formalists, legal realists and social engineers. The social sciences remain irrelevant for European law faculties and courts but have become a core reference in the United States’ legal culture. Approaches based on Bourdieu often lead to new insights when they focus on power struggles within social fields. Thus, the marginal academic position of sociologists of law in Europe and the strong Law & Society Movement in the United States are well explained by García Villegas. Since he admits risks of overgeneralisation it seems trivial to point to counter evidence in eg Germany or the Scandinavian countries. Legal cultures have their specific ways of bringing law in relation to social practice and it would be a mistake to take the use of social scientific knowledge as the only indicator. Civil society participation, mass communication, education on all levels, expert consultation (comitology), networks or lobbies are alternative forms of information about social problems and legal needs—and those factors might have a different weight from one legal culture to another. In addition, what is definitely missing in García Villegas’s text is an account of developments in the last two decades characterised by more pragmatic approaches to law in most European legal cultures, of developments in the European Union with its strong judicial activism and informal law making processes, and of emerging global or at least transatlantic networks between scholars interested in socio-legal approaches. Hence, the chapters in this collection to a certain degree correct the picture of transatlantic divergences drawn by García Villegas and add many aspects of convergence of law and of sociolegal approaches.

III. EUROPEAN WAYS OF LAW—A SUMMARY OF CHAPTERS

The papers that we have chosen to publish in this volume raise many points that are relevant to any future agenda for a European sociology of law. They have been organised here in terms of their specific contribution to the

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theme of the original conference—how far can we characterise common elements in the European way or ways of law, as Kagan set out to do in his description of ‘the American way of law’? (Kagan, 2001). The first section, entitled ‘Theorising “European” Legal culture’, contains chapters that try to theorise the place of law in European societies. This is followed by a section called ‘Re-constructing Europe’ that discusses the role of law in European integration. The last section—European styles of legal regulation— provides various descriptions of European styles of law. The first section opens with a chapter by Roger Cotterrell called ‘Images of Europe in socio-legal traditions’. This looks at what classical authors can tell us about ‘Europe’ as an idea or image of the future. Many issues essential to this examination are about regulation—its scope and legitimacy, its democratic and cultural foundations and its social and economic effects. So it is clear that socio-legal scholars have an essential part to play in re-imagining Europe. Looking back to what Ehrlich, Weber and Durkheim had to say, or might have to say now, the author discovers sociolegal dilemmas facing Europe. Ehrlich, of course, offers us important insights into legal and cultural pluralism; Weber wrote about the problem of leadership as something that cannot be reduced to bureaucracy; Durkheim charted the possibility of finding shared values even under conditions of modern individualism. But any ‘solutions’ these great thinkers proposed are perhaps less useful than the recognition that they too wrestled with problems that are recognisably similar to our own. The paper contrasts these images with Jürgen Habermas’s recent ideas on the European Union as a vehicle for a kind of cosmopolitanism. Habermas’s view that a constitution can help to form a demos is contrasted with the approach taken by empirical socio-legal scholars who seek more concrete evidence of processes of European will-formation and opinion-formation. By imagining Europe as a socio-legal entity these past and present socio-legal theorists together provide a valuable map of issues about aspects of the European project that remain centrally important today. Robert Kagan in his contribution ‘American and European Ways of Law: Six Entrenched Differences’, continues his well-known examination of differences between the United States and Europe in relation to the extent of ‘adversarial legalism’. This influential term created by the author refers to a style of decision-making in which the assertion of claims is dominated, not by judges or governmental officials, but by disputing parties or interests, acting primarily through lawyers. This approach to law is contrasted with European ‘bureaucratic legalism’—a style of policy-making and dispute resolution in which legal authority and decision-making is hierarchically organised and disputants and their lawyers play a more restrained role. The paper provides rich data to suggest that the US and Europe are fundamentally different in their methods of governance and are unlikely to converge. The main impediments to convergence are the tenacity of European national legal cultures and its political structures.

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Antoine Garapon in ‘La Place Paradoxale de la Culture Juridique Americaine dans la Mondialisation’ offers another analysis of American legal culture. He takes issue with the Italian comparative lawyer Ugo Mattei’s accusations of American legal imperialism. This critique, says Garapon, belongs to Cold War discourses and is outdated in times of globalisation where cultures—including legal cultures—are in constant flux and where the adoption of foreign cultural elements is common. Rather than speaking of US domination Garapon prefers to describe law in the United States as both an appealing and at the same time appalling example of a legal culture that stimulates imitation and innovations. He sees American law as contradictory and in many aspects paradoxical. It is liberal internally and imposing externally, it is sometimes moral and sometimes cynical. It is decentralised to the extreme but knows how to centralise when important interests are at stake. Garapon thus offers a sophisticated European view of US legal culture—sympathetic but critical. Wolf Heydebrand, in his chapter ‘Globalisation and the Rise of Procedural Informalism in Europe and America’ sees more commonality than Kagan does. He argues that in Europe, just as in the US, there is a close historical and structural relationship between the political economy of globalisation and the emergence of informal, flexible, and soft legal procedures. The significance of procedural informalism during the current round of globalisation is attributed to the strategic combination of formal adjudication, alternative dispute processing as well as hard and soft procedures that help to expand the scope of discretion in legal, political and economic decisionmaking and transnational governance. Procedural informalism is attractive not only to judges and lawyers, but also to organisational policy makers in administrative, commercial, and international law. Likewise, informal bargaining and negotiation are increasingly used in domestic courts and government agencies. Not least, alternative procedures of conflict management are highly valued by agencies of international governance and transnational corporations that seek to expand the scope of discretion and control while trying to reduce the level of uncertainty and transaction costs in their respective institutional spheres. Richard Münch’s contribution, ‘American and European forms of social theory reflecting Social Practice’ follows up his previous work in contrasting American and European Forms of Social Theory (Münch, 1991). It elaborates an intricate comparison of the American and three European traditions of theorising the production of social order. In pursuing this aim he selects Anselm Strauss’s theory of negotiated order to represent American traditions, Anthony Giddens’s theory of structuration to represent English traditions, Michel Foucault’s theory of order reproduction by power structures to represent the French tradition. Finally, he selects both Jürgen Habermas’s and Niklas Luhmann’s approaches to represent different traditions in German understanding of social order. He suggests that these

10 Volkmar Gessner and David Nelken theoretical traditions not only reflect reality but at the same time construct it and thereby influence legal practice. He provides as an empirical example an account of the way clean air regulation is institutionalised and carried out in the US, England, France and Germany. The studies in the second section of this volume focus on how the institutions of the European Union seek to produce an integrated idea of Europe on the ground. In the first chapter Antonin Cohen and Mikael Madsen write about ‘“Cold War Law”. Legal Entrepreneurs and the Emergence of a European Legal Field (1945–1965)’ and draw on Bourdieu’s theoretical approach in order to explain the emergence of European law in the years 1945–65. They show how transnational communities of jurists composed of the staff of administrative and judicial European institutions, legal academics and practitioners exercised considerable influence over the specifics of European Law. In turn, legal practitioners specialising in European law used these European accomplishments in their national legal battles. Basing itself on individual biographies of the agents concerned, the chapter aims to show how these actors sought new resources for strengthening their national and international positions in a loosely institutionalised social space. Victoria Jennett’s chapter, ‘The Transformation of Sub-State Nationalism in Conflicted Societies: the Impact of European Constitutionalism’, provides new insights into the problem of nationalist movements in Europe. She shows how EU constitutionalism offers new possibilities for the political accommodation of sub-state nationalists who articulate aspirations for self-determination. Although the background to her argument is the conflict in Northern Ireland, she also refers to other European sub-state nationalisms, like the ones to be found in Spain. Important approaches to this topic in political science are discussed and developed further. She argues that the European Union represents a particular conception of democracy, liberty, human and civil rights, and the rule of law. It has developed values special to its political community that make the European Union unique in constitutional design, and especially capable of responding to the instrumental and expressive dimensions of national cultures. These European Union values include the principle of constitutional tolerance, the desire for a lasting peace between the peoples of Europe and prosperity for all, and market values modified by the visions of the European social model. Together they make up a ‘high culture’ that seeks to bond the many peoples of Europe in the EU post-national political community. The following chapter by Jiri Priban discusses much the same issue but from a less sanguine point of view. In his contribution ‘Is there a Spirit of the European Laws? Critical remarks on EU constitution-making, enlargement and political culture’ he offers an original approach in European socio-legal studies by linking the concept of the spirit of the laws to that of political identity. He examines, from a legal theoretical perspective, the conflict between political identities of demos and ethnos and the way this

Introduction

11

is reflected in the European Union’s civil and democratic identity-building. The Union’s strategy of taming ethnos was particularly successful during the EU accession talks in the 1990s, and this significantly affected the enlargement process of 2004. Priban sees European demos as a reflection of civil democratic culture existing at the level of the Union’s Member States and extending to the European Union level. European constitutional patriotism supports the notion of European demos as a hybrid mixture of political identification with a culture of civil liberties and democratic values and the persistence of national and regional communal identities. But, in contrast to the previous chapter, the author concludes that the building of a European political identity can proceed only by marginalising ethnically established loyalties and traditional communal identities. This marginalisation is part of the internal logic and constitution of the European Union as an answer to modern European history, its nationalism and ethnically incited political violence. Bettina Lange in her chapter ‘How to conceptualise law in European Union integration processes’ draws attention to the various ways European Union law is conceptualised in the literature. She distinguishes instrumental, relatively autonomous and formal law conceptions from broader concepts that recognise the normative force of belief systems, culture and values, as well as from concepts that have to do with the smaller-scale social norms that organise institutional life. In order to flesh out these various concepts she offers empirical insights drawn from three case studies she carried out on the implementation of the European Union Directive on Integrated Pollution Prevention and Control. She finds a European Union law ‘in action’ which is neither instrumental, nor formal nor autonomous but ‘open’ in the way it is implemented by civil servants, engineers and environmental scientists in national regulatory agencies. She rightly emphasises the importance of empirical research for deciding what type of law is actually generated in practice through European Union integration processes. The final section of the volume offers examples of a variety of attempts to use case studies and other methods of empirical research to provide descriptions of European ways of law. The first of these, by Bärbel Dorbeck-Jung and Mirjan van Heffen-Oude Vrielink deals with ‘European Union ways of governing risks of pharmaceuticals’. The authors see this as a particularly interesting example of an emerging European legal culture. They examine the combination of hard law and soft law, ‘old style’ and ‘new style’ harmonisation and other methods and tools of governance in the complex and dynamic multi-level and multi-actor regulatory system related to the authorisation of medicines. Of particular interest is the way they discuss the effort to shape the marketing of pharmaceuticals in terms of the aims of ensuring greater European integration, better consumer protection and better regulation. Though they see such regulation as introducing a closer form of European integration they are less impressed with the extent to which

12 Volkmar Gessner and David Nelken it provides more protection for patients. They caution that the present EU governance approach related to authorisation procedures cannot prevent a ‘race to the bottom’ concerning the level of these standards. Gerd Winter, in his contribution ‘Embedded and disembedded rationality: European and US American legal contributions to global governance’, deals with regulatory rationality in the EU and the United States, exemplified in the areas of climate policy, chemicals regulation and biotechnology. All three case studies show different approaches in both legal cultures regarding regulatory legitimation and justification. Whereas the EU uses a complex approach (embedded rationality) by applying dimensions like fairness, proportionality and utility, the US approach (purified rationality) is monetarised using a strict and narrow cost-benefit method. The policy goals behind these different forms of rationality seem obvious: the EU facilitates environmental protection, the US restricts it in order to protect economic interests. The EU considers the environment as a public good to be regulated by reasonable and democratic governance, the US regulators define it as a resource for humankind to be allocated to individual actors according to market criteria. Winter thus points to a crucial difference between the two legal cultures, which is also discussed between sociolegal communities in transatlantic discourses: the EU chooses a philosophical and sociology-of-law approach whereas the US tends to prefer a utilitarian and law-and-economics approach. Winter’s position is straightforward: at least in the environmental field the former method of legitimation for the governance of public goods achieves better protection than the latter. In the next chapter ‘Dutch legal culture and technological transition’ Helen Stout and Martin de Jong challenge the widespread assumption in the Netherlands that Dutch legal and administrative cultures are positively inclined towards ‘daring’ private firms and that their initiatives will usually land in fertile soil. To document their argument they offer a careful case- study of the transition from (electromagnetic) telegraphy to telephony in the Netherlands in the nineteenth century. The government, they show, had a very marked involvement in this technological transition, and tried to influence it in various ways with the aid of formal legal instruments. Surprisingly, however, this involvement was negative from the point of view of technical innovations. The authorities used legal instruments to impede the progress of private parties who tried to launch new technologies on the market. The authors report on complementary studies carried out in 2004 that confirm these observations. Briefer case-studies of five other transitions: from (coal-powered) gas light to electric light, from radio telephony to radio broadcasting, from ether television to cable television, from analogue to digital ether television and from gas-powered heat to hydrogenpowered heat, all suggest a similar pattern. In the final chapter in this volume ‘ The Cultures of Youth Justice’, Stewart Field and David Nelken discuss what is involved in carrying out

Introduction

13

a comparison of two contrasting ways of law within Europe. Their paper draws on provisional findings of their comparative study of the handling of juvenile crime in Italy and in Wales. Their starting point is that different levels of youth incarceration require interpretation in the light of the legal and broader cultures that have produced them. The fact that the two youth justice cultures seem currently to be going in different directions is most obvious in the different priority given to ‘early intervention’ in both systems. Whereas in England and Wales the authorities try to use the criminal justice system both to reduce offending and improve childrens’ lives, in the Italian system the concern is to limit as far as possible any iatrogenic effects on children of contact with officialdom. In examining the differences between the two systems the authors focus on the relationship between civil and criminal intervention, the different ‘tonal quality’ of youth justice discourse in the two jurisdictions, the different assumptions about child development and the responsibility of young persons, and, finally, different kinds of relationships within the family and community. As these summaries suggest, the idea of European Ways of law has, and was intended to have, various meanings. What is meant by the term ‘European’ in the European Union? Is this yet another ‘invented tradition’ or ‘virtual community’ (and could it be otherwise)? Many commentators identify what is specifically European on the basis of European institutions and European law. How far is this ‘just’ a construction of legal entrepreneurs, as described by Cohen and Madsen? Why did something first developed under the spread of American hegemony come to be seen as an alternative to it? As a regulator, the European Union has been criticised for being too interventionist and too ineffectual, for going too far towards federalism or not far enough, for being too slow in creating a common legal framework, or for seeking to harmonise what should not (and/or cannot) be harmonised. But it is important that this volume does more than focus on the regulatory activities of the European Union or on the harmonising tendencies of European law. It is right not to limit ourselves to activities that are sui generis in respect of what else goes on in single nation states (and it is well not to confuse aspirations to harmonisation or convergence with actual outcomes). That there is more involved in comparing law in the US with law in Europe than describing the activities of the European Union or European courts can also be seen from the small role that the latter plays in Kagan’s book about American as opposed to other ways of law (Kagan, 2001). The problem with Kagan’s comparison is rather that it is far from certain that the bureaucratic regulatory practices he sees as characterising Europe are reflected throughout their ways of law (Nelken, 2003). But why should we compare the US and Europe? For Robert Kagan, Richard Münch and Gerd Winter this is essential if we are to show that there is an alternative model to that of neo-liberalism. For Wolf

14 Volkmar Gessner and David Nelken Heydebrand, on the other hand, it can be misleading to focus on these differences when what really matters is the rise of procedural informalism as the handmaiden of globalising capitalism. Likewise, as Boaventura De Sousa Santos has reminded us, the differences between the US and Europe may pale into insignificance from the perspective of the ‘third world’, or what he prefers to call ‘the South’ (Santos, 2002). It is also not always clear where the boundaries should be drawn. Kagan chooses to include England and Wales in the sample of states which he uses as his foil for contrasting the American way of law (Kagan, 2001). Field and Nelken, in their study of responses to juvenile crime do show, as Kagan would hypothesise, that England and Wales do have more space for government welfare initiatives in this field than in the (contemporary) United States. But, at the same time, their study also reveals that England and Wales has more in common with the United States than with a continental country such as Italy when it comes to the effort to mobilise individual and ‘community’ responsibility. The perspectives that emerge from the various chapters in this volume regarding the specificity of European ways of law are not always the same. But, arguably, it is exactly through dialogue, whether explicit or implicit, that this volume becomes more than the sum of its parts (like the European Union itself?). Kagan and Heydebrand offer different accounts of the futures of law in the US and Europe. But this is to some extent the result of each author choosing to emphasise differences or similarities. Jennett and Priban may be disagreeing at least in part about the relationship between European law and sub-state nationalisms. But they may also be speaking about more or less worthy kinds of sub-state nationalisms (though it is not entirely clear how the line is to be drawn). There is much in common in the portrayals of American law advanced by Heydebrand, Münch and Winter. But perhaps they pass too lightly over the contradictions in American law on which Garapon concentrates. Putting different case-studies together allows us to look for the common denominator in, for example, European ways of governing the marketing of pharmaceuticals, regulating industrial pollution or seeking to defend natural resources. But if theory needs to be tested with case-studies, theoretical concepts themselves are not immune to criticism. Following Münch, when seeking to understand Dutch approaches to regulation we might be tempted to use the same method he does in arguing for a connection between theorising and practice(s). But we can also ask how confidently we can speak of ‘Dutch legal culture’, as one contributor does, when the author of a book with such a title recently decided to abandon it in the face of adverse comment (Blankenburg and Bruinsma, 1994; Kenny, 1996; Bruinsma, 2003)? And, if this or equivalent terms do not work well at the level of the nation state, can they really be sustained at the European level? At the least, the use of such terms needs careful clarification and justification.

Introduction

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There are also interesting overlaps between chapters. It could be valuable for example to tease out the relationship between what Cotterrell has to say about the Habermasian project for a new form of citizenship and the accounts of what European institutions have so far managed to achieve, as discussed in the second section of the book. Some papers can be interrogated in the light of others. How do Münch’s ideas about intimate national connections between ideas and practices bear up in the light of the cross-national trends analysed by Heydebrand? (and what of the fact that so many regulations in a given society derive from elsewhere? (Nelken and Feest, 2001)). As significant, however, is the way some papers, such as that on European public law, describe how transnational answers are being provided to ‘problems’ that have not been well-formulated with full specificity at each national level. Readers will rightly note the many gaps in what is included here. There is too little for instance about Eastern European countries and the challenges posed by the ongoing enlargement of the Union. We would also have liked to publish examples of comparative projects looking at the differential effects of European Union law in different nation states (Gessner, 1994), given that there are a considerable number of such projects underway. The chapters in this volume give the impression that European Sociology of Law has to a certain degree lost its critical elements (and that it follows in that regard the withdrawal of political issues from the Law and Society agenda). This impression is not totally misleading, although one should point to a considerable number of recent studies which deal with political issues from Holocaust and other Nazi crimes to crimes committed in Iraq (Ambos, 2005; Kramer and Michalkovski, 2005). In Germany, important research has been carried out about the administration of justice in the former GDR (Rottleuthner 1994a; 1994b; 1995), central and eastern European authors deal critically with Human Rights, rule of law, corruption, organsed crime and transitional justice issues (see eg Priban et al, 2003). The ‘darker legacies of law in Europe’ under National Socialism and Fascism are discussed in an important collection edited by Christian Joerges and Navraj Singh Ghaleigh (2003)—a necessary contribution in times of a general reluctance to glance in the mirror of the more recent European law history. In a different and more ‘transatlantic’ discourse European legal sociologists observe and criticise consequences of economic globalisation (Santos, 2002) and the ‘Americanisation of law’ (see the collection Américanisation du droit, 2001). But, to some extent, even what is missing can illustrate aspects of European legal culture (as compared to the US). Despite the frequent celebration of democratic participation as a value, since the 1970s there has been much less interest in empirical research into ‘everyday legal consciousness’ (but see Hertogh, 2004). We can only hope that both the chapters that we have included and the signs of what we were unable to include will stimulate others to do more.

16 Volkmar Gessner and David Nelken REFERENCES Ambos, K (2005) Derecho penal y guerra. Intervención punible del gobierno alemán en la guerra de Irak, Revista de Derecho Penal 171–195. Américanisation du droit (2001) Archives de philosophie du droit 45 (Paris, Dalloz). Appadurai, A (1991) Modernity at Large: Cultural Dimensions of Globalization (Minneapolis, University of Minnesota). Becher, T (1989) Academic Tribes and Territories: Intellectual Enquiry and the Culture of Disciplines (Milton Keynes, SRHE and Open University Press). Blankenburg, E and Bruinsma, F (1994) Dutch Legal Culture 2nd edn (Amsterdam, Kluwer). Bruinsma, F (2003) Dutch Law in Action (Nijmegen, Ars Aequi). Cownie, F (2004) Legal Academics—Culture and Identities (Oxford, Hart Publishing). Ferrari, V (1990) Developing Sociology of Law: A Worldwide Documentary Enquiry (Milan, Guiffre). García-Villegas, M (2006) ‘Comparative Sociology of Law: Legal Fields, Legal Scholarships, and Social Sciences in Europe and the United States’, Law & Social Inquiry 31, 343–382. Gessner, V (1994) Global Legal Interaction and Legal Cultures, Ratio Juris Vol 7, 132–45. Gessner, V, Höland, A and Varga, C (eds) (1996) European Legal Cultures (Aldershot, Dartmouth). Griffiths, J (2006) ‘Sociology of Law in the Netherlands’, in RCLS Newsletter, Spring 2006: 9–11. Hertogh, M (2004) ‘A ‘European’ Conception of Legal Consciousness: Rediscovering Eugen Ehrlich’, J Law Soc 31(4): 455–81. Hesselink, M (2001) The New European Legal Culture (Deventer, Kluwer). Joerges, C and Singh Ghaleigh, N (2003) Darker Legacies of Law in Europe—The Shadow of National Sociallism and Fascism over Europe and its Legal Traditions (Oxford, Hart Publishing). Kagan, R (2002) Adversarial Legalism; The American Way of Law (Cambridge, Harvard University Press). Kenney, SJ (1996) ‘Review of Blankenburg and Bruinsma’, Law and politics book review Vol 6 No 9 (August): 122–123. Kramer, R and Michalkovski, R (2005) ‘War, Aggression and State Crime: A Criminological Analysis of the Invasion and Occupation of Iraq’, British Journal of Criminology 446–469. Münch, R (1991) ‘American and European Social Theory. Cultural Identities and Social Forms of Theory Production’, Sociological Perspectives 34 (3), pp 313–335. —— (1993) Das Projekt Europa—Zwischen Nationalstaat, regionaler Autonomie und Weltgesellschaft (Frankfurt/M, Suhrkamp). Nelken D (2003) ‘Beyond Compare? Criticising the American Way of Law’, Law and Social Inquiry, 28.3: 181–213. —— (2006a) ‘Rethinking legal culture’, in M Freeman (ed), Law and Sociology (Oxford, Oxford University Press).

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—— (2006b) ‘Italy: A lesson in tolerance?’ in J Muncie, and B Goldson (eds), Comparative Youth Justice: Critical Issues (London, Sage). Nelken, D and Feest, J (2001) Adapting Legal Cultures (Oxford, Hart Publishing). Priban J, Roberts, P and Young J (eds) (2003) Systems of Justice in Transition— Central European Experiences since 1989 (Hampshire, Ashgate). Rifkin, J (2004) The European Dream (New York, Tarcher/Penguin). Rottleuthner, H (1994a) Steuerung der Justiz in der DDR (Cologne, Bundesanzeiger). —— (1994b) ‘ Das Ende der Fassadenforschung: Recht in der DDR (Teil 1)’, Zeitschrift für Rechtssoziologie 208–243. —— (1995) ‘ Das Ende der Fassadenforschung: Recht in der DDR (Teil 2)’, Zeitschrift für Rechtssoziologie 30–64. Santos, B de Souza (2002) Toward a New Legal Common Sense 2nd edn (London, LexisNexis Butterworths). Zweigert, K and Kötz H (1998) An Introduction to Comparative Law 3rd edn (Oxford, Oxford University Press).

A

Theorising ‘European’ Legal Culture

1 Images of Europe in Sociolegal Traditions ROGER COTTERRELL1

T

he referenda rejections in 2005 of the proposed European Union Constitution, and their immediate consequences, have been described as the biggest crisis that the Union has faced. Contrary to what some have claimed, however, these referenda results have not derailed the European project, if this is taken to be an increasing political, economic and social integration of Europe. The momentum towards this integration may be unstoppable and there are no ultimately attractive alternatives to it. Nevertheless, recent events indicate that fresh thinking and new directions are needed. As much as at any previous time, Europe as an idea or as an image of the future demands examination. Many issues essential to this examination are about regulation—its scope and legitimacy, its democratic and cultural foundations and its social and economic effects. So it is clear that sociolegal scholars have an essential part to play in re-imagining Europe. Many are currently actively engaged in it. In pursuing that engagement it should be remembered that concern with the nature of Europe goes back to the beginnings of modern social theory. Within the broader theme of European ‘ways of law’ this chapter revisits general ideas of Europe that can be found in the work of some of the greatest sociolegal theorists. I hope to show that classic writings are still relevant to current issues about the European project; they help to link these issues to sociolegal traditions. What follows examines the images of Europe that are present in the work of three founders of these traditions—Eugen Ehrlich, Max Weber and Emile Durkheim—writing at the beginning of the twentieth century when Europe as a legal entity was only a dream. Then I will contrast these images with Jürgen Habermas’s recent ideas on the European Union as a vehicle for a kind of cosmopolitanism. My argument is that—by imagining Europe as a sociolegal entity—these past and present sociolegal

1

I am grateful to Kenneth Armstrong for valuable references on European Union law.

22 Roger Cotterrell theorists together provide a valuable map of issues about regulatory aspects of the European project that remain centrally important today.

I. EHRLICH AND THE END OF EMPIRE

Eugen Ehrlich’s significance here is in pioneering the study, in modern European law, of legal pluralism—‘the presence in a social field of more than one legal order’ (Griffiths, 1986: 1). The ‘living law’ that Ehrlich studied empirically grows out of everyday life rather than being imposed or codified by the state. Intimately embedded in custom and experience and varying between different population groups, it is learned not in law schools but in ‘the university of life’ and needs no state legitimation to give it authority (Ehrlich, 1936). It points to social diversity confronting juristic universals. Ehrlich’s distinction between living law and state law is formulated in a specifically European context, that of the old Austro-Hungarian Empire, made up of many nationalities, languages and cultures. Ehrlich’s academic base, the Franz-Josef University of Czernowitz in the Bukowina, now part of Ukraine, was often seen, in a late-nineteenth century Western European imagination, as a symbolic bastion of German culture at the eastern edge of Europe (Likhovski, 2003: 640). Some Austrian settlers in the Bukowina thought they were there to protect ‘Europe against the wild hordes who kept breaking in from the East’.2 As for Ehrlich, the loyal servant of a fragile state, all his cultural and intellectual allegiances seem to have been turned westwards. His reference point was the European community of German-speaking jurists and, beyond that, modern Western law and culture as a whole. But his geographical placement made him aware that modern European law must address multiculturalism, and the varied regulatory expectations of different populations held together in a single legal frame. As David Nelken (1984) has insisted, Ehrlich is not a theorist of ‘law in action’, like Roscoe Pound. He wished not so much to impose state law effectively as to negotiate legal unity through appreciation of difference. In a sense, he is a prophet of subsidiarity, or perhaps of a Europe of the regions. But these political-administrative notions seem pale and thin, set alongside Ehrlich’s passionate cultural concern with the diversity of social associations. Although he is a great pioneer, we should not ask more of his work than it can offer. It quickly attracted criticism for its conceptual imprecision and failure to connect with wider sociological scholarship (Vinogradoff, 1928: 224). Living law is an opaque idea, mixing values, traditions, affective and instrumental elements indiscriminately. It treats the social as an 2

Gregor von Rezzori, quoted in Likhovski, 2003: 640.

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analytically undifferentiated phenomenon, the categories of living law being given meaning only by their correspondence with lawyers’ legal categories (Cotterrell, 2006b). If Ehrlich points to a need to consider Europe pluralistically, the question of what constitutes this plurality for regulatory purposes remains unanswered. In more recent times, legal pluralism has often been invoked in sociolegal studies of Europe. Europe clearly contains many kinds of ‘official’ regulation or ‘lawyers’ law’. Recent literature discusses the interrelation of different types of regulation, sometimes contrasting European ‘hard’ law with ‘soft’ law, ‘co-regulation’ and self-regulation (see eg Senden, 2005). Official law in the European context is sometimes seen in a hierarchy, with national law viewed as most developed, European Union law as intermediate and international law as least developed (Zürn and Wolf, 1999). Writers such as André-Jean Arnaud (1995) and Massimo La Torre (1999) have characterised the interpenetration of regimes of European regulation in explicitly legal pluralist terms (see also Delmas-Marty, 2002: 147–9). Joanne Scott and David Trubek have explored tensions between what they call the ‘classic Community method’ of legal regulation and various kinds of ‘new governance’ in the European context (Scott and Trubek, 2002). Christopher Harding has surveyed Europe’s ‘rich and interrelated patchwork of legal “regimes”, “orders” or “spaces”’ (Harding, 2000: 129), these being best seen as distinct normative fields rather than legal systems. For Francis Snyder (1999), Europe is a meeting place of regulatory regimes that have sources or centres not necessarily inside its boundaries. For Volkmar Gessner (1994), acute legal cultural differences within Europe pose major problems for European legal integration. Few of these studies have direct links to Ehrlich but underlying issues that they imply have long been discussed in relation to his work. What is a legal pluralist approach for? For Ehrlich it is to remind the state about the existence of the social, and to remind jurists and philosophers that talking about ‘society’ without empirically studying its diversity is inadequate. He was well placed to issue these warnings. A scholar of legal pluralism should be, like Ehrlich, central and peripheral at the same time: an insider-outsider, engaged with and expert in the various types of official law but also mentally distanced from them and sensitive to many kinds of social regulation that are entirely outside lawyers’ normal experience. To be such an insideroutsider consistently is not easy. This is surely one reason why social scientific legal pluralism remains less intellectually central in sociolegal studies than it deserves to be. European lawyers usually know much more about the law of the Union than about its diverse populations and their expectations. Yet this must surely change if the remoteness of European institutions from Europe’s populations is to be reduced. Ehrlich was one of the first modern writers to study empirically the moral distance between regulators and regulated. Law morally distanced

24 Roger Cotterrell from the regulated appears inflexible, impressionistic (ignorant of social facts), too generalised, too absolutist in its values or democratically weak (Cotterrell, 1995: 305). Often it is all of these. In Europe these problems are clear enough. But, in addressing them, Ehrlich’s living law concept needs replacing with more precise characterisations of basic types of communal relations (built on shared values, common heritage, convergent projects or emotional ties) (see generally Cotterrell, 2006a). The different regulatory problems which these abstract types of relationships pose need to be separated, and sociolegal inquiry should analyse the ways in which the types combine in complex ways in social experience. Ehrlich’s social scientifically-oriented legal pluralism requires empirical study of social life combined with sensitivity to juristic concepts. By contrast, what has been called juristic legal pluralism requires the study of different juristically-recognised legal regimes co-existing in the same social space (Griffiths, 1986). Juristic legal pluralism is easily seen in Europe with its many overlapping, intersecting forms of state and European law. But a clear distinction between juristic and social scientific legal pluralism is hard to make today. As new forms of regulation and governance develop, sharp lines between juristic law and social regulation become controversial. It may be that Europe is now a particularly important laboratory in which the reshaping of the very idea of law is taking place. Juristic legal pluralism has been associated with the treatment of indigenous law in colonial territories, or with situations where ‘the sovereign commands different bodies of law for different groups of the population varying by ethnicity, religion, nationality, or geography’ or where ‘parallel legal regimes are all dependent on the state legal system’ (Merry, 1988: 871). None of these cases is that of contemporary Europe. But conflicts, disagreements or inconsistencies arise as different European and state agencies create and interpret official law and regulation. Unresolved differences in the effective meaning of legal rules or procedures may arise through contrasting practices of different governmental agencies (eg Graver, 1990; and see Dalberg-Larson, 2000: 103–14), for example between courts and administrative or enforcement agencies, or between different court systems. And contrasts in legal interpretive cultures may exist between different member states in the European context (Gessner, 1994: 134–6). The potential is for a legal plurality that is official in some senses, unofficial in others, and demands both juristic and sociological recognition. The pluralist message in sociolegal inquiry remains the same as it was in Ehrlich’s time: law’s meaning and authority are never to be taken for granted and are often a matter of competition and struggle. In this context, the diverse perceptions of the regulated are important because law must have moral meaning for those it addresses. Ehrlich’s still salient challenge is

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to minimise moral distance and ensure law’s meaningfulness in this sense. The crucial political issues are: What should be seen as the ‘units’ of plurality? And how much plurality must European law recognise or deny if it is to be both authoritative and responsive?

II. WEBER AND EUROPEAN GOVERNMENT

Sociolegal scholars know Max Weber best as the classic theorist of modern legal rationality and for his historical studies of rationalisation processes— in, for example, economy, government, law, religion and art—which he associated with the West’s uniqueness. European history is Weber’s primary focus. ‘The tremendous after-effect of Roman law... stands out in nothing more clearly than the fact that everywhere the [European] revolution of political management in the direction of the evolving rational state has been borne by trained jurists. This also occurred in England, although there the great national guilds of jurists hindered the reception of Roman law.’ Weber insists: ‘There is no analogy to this process to be found in any [other] area of the world.’ Thus, Europe’s governmental traditions are unique and pervaded by the ‘spirit of the jurists’ (Weber, 1948: 93, 94).3 This idea of a Europe of juristically-managed official rules merges easily with familiar Weberian images of bureaucratic and technical administration and the ‘iron cage’ (Weber, 1930: 181)—the regulation and routine that he sees as becoming the welcome prison of modern individuals who ‘need “order” and nothing but order’ and are ‘nervous and cowardly’ whenever this order is threatened (Weber quoted in Mayer, 1956: 127–8). Formal legal rationality underpins the legitimacy and efficiency of the modern European bureaucratic state, even if substantive demands on law can disrupt it and even if rational administration is actually only an island in a sea of non-rational (for Weber, non-rule governed) social action in citizens’ everyday lives (Brubaker, 1984). Though formal legal rationality and the bureaucratic state are the topics of Weber’s work that are most familiar in sociolegal scholarship, they are only part of the picture of modern government that he provides, and arguably, for Weber himself, the politically less important part. To appreciate this, we should look more closely at his idea of legal domination (authority based on a system of formally integrated rational rules) and then at what must supplement it. Legal domination provides, for Weber, the basic legitimacy of modern administrative structures such as those of European states. This legitimacy

3 For an interesting discussion of the ambiguities of Weber’s views on Europe’s uniqueness see Harrington, 2003: 12–16.

26 Roger Cotterrell requires no sovereign power and so it can surely apply to a rule system and bureaucracy extending beyond states, such as that of the European Union. But this is not simply legitimacy produced by legality. Apart from customary or purely emotional bases of allegiance, which Weber distinguishes from legal domination, allegiance to an order (or regulatory structure) as legitimate can, for him, be purpose-rational (that is, instrumental) or valuerational (that is, the order represents ultimate values which are themselves accepted as legitimate). Weber saw natural law theory as the last viable value-basis of political legitimacy in Europe. Thus, after the decline of natural law, legal domination could only be instrumentally based (Cotterrell, 1995: ch 7). In other words, the web of rules, the iron cage, is accepted because its overall usefulness is accepted. It provides a framework of order within which individuals’ projects can be pursued and their security guaranteed. If positive law’s authority in the modern state seems unassailable this is because the sheer complexity and scale of this law normally prevent anyone seeing enough of it to be able realistically to question its utility as a whole, that is to deny the worth of the established rule of law. Could, however, the seemingly self-sustaining character of legal domination break down when a choice becomes possible between rule-systems, for example between the laws of European member states and the regulatory structures of the European Union? Perhaps some issues in the 2005 referenda on the European Constitution can be seen in this light. Individuals may sometimes have the chance to choose which prison of order and security to inhabit, which iron cage to submit to. My argument is that Weber’s logic does not necessarily point to the idea of law as a self-founding system—an idea that leads towards contemporary autopoiesis theory or some postmodernist positions. His ultimate sociological focus on the individual social actor prevents a move to systems-thinking as such. We might go on to ask why the iron cage is, in Weber’s portrayal, such a dismal place. Surely it is not because of its rule-governed nature, which should provide a framework for individual freedom and security. It is because of its changelessness, its inertia and cocoon-like stillness. This must be why Weber’s political sociology devotes so much attention to the question of leadership—the capacity for dynamic political action. If this question is rarely addressed by sociolegal scholars it may be because Weber’s ideal of political leadership seems to stand in stark opposition to the governance of rules. In a famous conversation with the military commander General Ludendorff, at the end of World War I, when the question of a new form of government for Germany needed to be settled, Weber unequivocally advocated plebiscitarian democracy, under which the people directly elect a leader. They give him a free hand in government (‘…the chosen man says, “Now shut your mouths and obey me.”’). Then, at the end of his term of

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office, the people judge, again by plebiscite, throwing him from power if they think he has failed.4 Such a leader stands above parliamentary processes or bureaucratic structures, exemplifying a kind of charismatic rather than legal domination (Weber, 1968: 266–9). On a different occasion, speaking as a sociologist rather than a political advocate, Weber noted that a plebiscitary process of leader election (which he observed in the United States and some European countries) may in practice be a caucus system, involving exchanges of favours and party machines (Weber, 1948: 103–11). The process may be one of public acclamation or private bargaining. Either way, leaders, good or bad, emerge. Weber’s value-free sociology merely observes this process as a necessary complement to legal domination. What significance do these ideas have in today’s European context? Weber’s advocacy of the plebiscite—or referendum—is linked with his ambivalence about parliamentary government. His plebiscite preserves democracy of a kind against the impasse of irreconcilable conflicts of interest in a diverse population and is a means of directly, if only momentarily, linking leaders and led, leap-frogging over the layers of rule-bound bureaucracy that often characterise modern European governmental structures. Weber’s emphasis on a populist rather than parliamentary basis of democracy brings to mind Carl Schmitt here. Schmitt’s solution to what he saw as the impasses of liberal parliamentarianism was to call for a homogeneity of the populace (and so of leaders and led) at least as regards acceptance of the unifying mythical bases of sovereignty (eg Schmitt, 1988). By contrast, Weber seems to accept social, political and cultural diversity and conflict as normal and to seek a strong legitimation of leadership despite these. The message is surely that, while the iron cage is here to stay and more or less legitimates itself in normal conditions, modern political societies need direction from leaders created and given legitimacy by means that escape everyday bureaucratic routine or ad hoc compromises. Weber has remarkably little to say about constitutions. Can there be a plebiscitarian constitutionalism? This seems to be what was recently attempted in the European Union—legitimation of a constitutional document by referendum. But how is a constitution’s legitimacy to be judged in Weberian terms? Alongside its instrumental aspects as part of a structure of legal domination, the constitution’s symbolic aspects are surely relevant (see eg Cotterrell, 1996; Witteveen, 1993). An aura surrounds a successful constitution. This is projected on to it, as assumed qualities are projected on to a charismatic leader. Assumptions are made about its provenance and what it stands for. This aura is a basis of emotional allegiance as in Weberian charismatic domination—ideas and associated feelings are created that go beyond the words of the document, just as legends of the charismatic

4

The Weber-Ludendorff conversation is quoted in Marianne Weber, 1975: 653.

28 Roger Cotterrell leader’s prowess or wisdom may outstrip the evidence that supports them. But how is it possible to imbue a document with charisma? For Weber, charisma is irrational, a crystallisation of emotional power that social science cannot predict. How to ensure an adequate supplement to legal domination in contemporary politics thus remains, for Weber, unfathomable. Yet he provides lessons worth remembering in a European context. Utility is surely a very important basis of legitimacy: a legal order that is assumed to be compatible with the best chance of personal security and prosperity derives powerful legitimacy from that assumed compatibility. But European law is not inevitably self-legitimating and its legitimacy based on utility can sometimes be questioned. In any case, this kind of legitimacy is enough only for those who are content to be sleepy, docile inhabitants of the iron cage.

III. DURKHEIM AND EUROPEAN LEGAL VALUES

Emile Durkheim declared in 1907 that ‘beyond this country [France], there is another in the process of forming, enveloping our nation; it is the country of Europe [patrie européenne] or of humanity’ (Durkheim, 1987: 294). Weber, at much the same time, viewed Europe as a continent of competing states; his own, Germany, standing between Anglo-American power and, as he thought, the threat of Russia (Jaspers, 1989: 53–54). Durkheim doubted that separate European states would disappear, yet his vision of Europe’s future is entirely different from Weber’s. It is not arrived at through analysis of structures of state power but by elaborating a view of European values: Europe, in Durkheim’s view, could become unified in so far as its nation states gradually turned to cultivate those values which were objectively necessary for each of them as complex modern societies. The appropriate values of each nation would tend to become the uniform values of all. Thus, the distinction between cosmopolitanism and nationalism would break down. Durkheim sees European nations as, in certain respects, ‘all part of the same society, still incohesive, it is true, but one becoming increasingly conscious of itself’ (Durkheim, 1984: 76–77, 337). Twenty-one years after he published these words in The Division of Labour in Society, World War I broke out and the ‘short’ twentieth century (Hobsbawm, 1994) began. In it, European nation states tried, by every available means, to dominate, defeat or destroy each other. What is to be made of Durkheim’s ideas today? He is not a federalist: a confederation of European states could be only ‘like an individual state, having its own identity and its own interests and features. It would not be humanity’ (Durkheim, 1957: 74). He might be called a cosmopolitan nationalist. If each state aimed not to expand its borders at the expense of others, he suggests, ‘but to set its own house in order and to make the widest appeal to its members for a moral life on an ever higher level, then all

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discrepancy between national and human morals would be excluded... civic duties would be only a particular form of the general obligations of humanity’ (1957: 74). Societies could ‘have their pride, not in being the greatest or the wealthiest, but in being the most just, the best organised and in possessing the best moral constitution’ (1957: 75). But this, he recognises, is only an ideal: Europeans’ allegiance, for now, is to their own state and its well-being, if necessary at the expense of others. Ultimately Durkheim’s sociology of law grounds these ideals, suggesting reasons for their appropriateness. But sociolegal readings of Durkheim have generally been misleading, being centred mainly on the treatment of law in his first book, The Division of Labour (Durkheim, 1984). Little attempt has been made until very recently to explore the wholly different and much more satisfactory approach taken in the fragmentary but extensive discussions of law in his later writings. Durkheim ‘Mark I’, the Durkheim familiar in sociolegal studies, is the Durkheim of the index thesis, which rigidly links a distinction between mechanical and organic solidarity with one between repressive and restitutive law. Durkheim ‘Mark II’, who starts to emerge around 1897–8, some four years after The Division of Labour was first published, no longer writes about repressive and restitutive law as indices or visible representations of solidarity and avoids use of the mechanical/ organic solidarity opposition altogether. Instead, he writes about law, in all its forms, as an expression of values. He associates modern (European) society with a particular, distinctive value system, which he calls the ‘cult of the individual’ or – with overtones of Comte and Rousseau—the religion of humanity (Cotterrell, 1999: ch 7). The cult of the individual, or individualism (Durkheim, 1969) is entirely opposed to contemporary neo-liberal celebration of the individual, which speaks incessantly of individual freedom and choice and rarely of individual duties to others. Durkheimian individualism demands respect for the autonomy and dignity of all individuals, whoever and whatever they are. If it celebrates individual rights, these are, at base, human rights, for which each person qualifies equally. And it demands that one should promote other individuals’ rights at least as much as one’s own. The cult of the individual is the opposite of a cult of egoism. Durkheim plots the halting progress of this altruistic individualism in contract, criminal, property, succession and family law and in penology (Cotterrell, 1999: chs 5, 7, 8 and 9). Whereas in The Division of Labour, forms of law are seen as directly reflecting forms of social solidarity, Durkheim’s later work suggests no such automatic link. One can say only that complex, diverse, modern societies are most likely to achieve solidarity under a value system that recognises and welcomes difference (for example, in beliefs, ambitions, experiences and allegiances) between individuals but treats every individual as deserving equal respect and dignity. If such a value system is in fact developing in Europe it is for complex and unique historical reasons, with religious (primarily Christian),

30 Roger Cotterrell economic, political and other influences. But in advanced European societies, where occupational specialisation and functional differentiation have developed very extensively, such a value system is more conducive to social solidarity than any other. So it might be expected to be favoured officially and elaborated in law. When or if a ‘European nation’ materialises, for Durkheim it is less likely to be unified politically than by common adherence to the cult of the individual, the only value system that can be universally meaningful in a modern European society. Is his view of the possibility of value consensus naive? I do not think so. He narrows shared values down to the minimum; the most basic, irreducible formula. And his writings are cautious (or at least ambiguous) as to whether the cult of the individual will ultimately be internalised by Europe’s populations, or remain only an official value system which the state will try (no doubt with numerous lapses) to apply in policy and law. In fact, many aspects of individualism as Durkheim understands it are invoked in literature on the idea of Europe, and treated as ‘European values’ in some sense. For example, taking an individual’s life is a gross affront to the cult of the individual, which condemns all assaults on an individual’s body. So Europe’s firm current rejection of capital punishment is clearly mandated by it. So also is the general discarding of corporal punishment. Consumer protection and controls on unfettered market freedom are aspects of Durkheim’s idea of ‘just contracts’. Welfare rights contribute to a universalisation of individual dignity and autonomy, and so express individualism. Clearly this is also true of such basic protections as the principle of no punishment without trial, and no punishment without a proven crime. Most obviously, the cult of the individual is expressed in human rights. Thus, the sociologist Göran Therborn claims, Europe has become ‘an area of human rights, more binding than in any other area of the world’ (quoted in Habermas, 2001b: 20). He also refers to trade unionism, collective bargaining, universal welfare provision and the rights of women and children as ‘all held more legitimate in Europe than in the rest of the contemporary world’ (quoted in Habermas, 2001b: 10). If there has been a recent decline in support for the first three of these it goes along with suspicions that in practice they have tended to favour sectional interests. Scepticism here is often consistent with Durkheimian individualism and not a rejection of it. Is the cult of the individual simply liberalism? I think not. Durkheimian individualism is rooted in a specific historical context and related only to a particular kind of society. It is sociologically, not philosophically justified, by its relevance to the distinct characteristics of that society—vastly diversified, complex, heterogeneous, technologically and economically advanced. By contrast, liberalism tends to treat its outlook as universally valid, not tied to specific historical conditions. Liberals often demand democracy, elections or human rights everywhere in the world, and see no need to

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reinterpret values in relation to specific social contexts. But, for Durkheim, values are never philosophical absolutes. They are justified by the nature of the kind of society in which they exist. His writing about the cult of the individual is always in a modern western European context. Liberal human rights are universal and absolute, but for Durkheim all rights are socially produced, as is the very idea of the individual in the fullest sense (Durkheim, 1960). I think that the complacency at the heart of Durkheim’s thinking lies not in his analysis of the cult of the individual but in his assumption that social solidarity must be significant in complex contemporary societies. Is solidarity needed? Is extensive mutual trust necessary to social life? Or does impersonal confidence in systems replace personal trust in each other (cf Luhmann, 1979: Part 1)? Could the pursuit of Weberian purposerationality by citizens following rational law be enough to secure order in society without solidarity? Durkheim does not provide an adequate sociological explanation of what he treats as nascent European values, and so of European law and society. Neither can he give much guidance in understanding and confronting the gross affronts to moral individualism that historical emergencies often provoke. But he reminds us that a certain idea of solidarity does matter in modern European culture. By relating it systematically to law and legal values he highlights its practical relevance to the building of European institutions.

IV. HABERMAS AND EUROPEAN COSMOPOLITANISM

Why does solidarity matter? Recently, Jürgen Habermas (2001b: 20, 21) has suggested that a ‘painful learning process’ has led Europeans to value solidarity and build institutions to foster and protect it: ‘In the course of painful, if not fatal struggles, [Europe]... has learnt how to cope with deep cleavages, schisms and rivalries between secular and ecclesiastical powers, city and countryside, faith and knowledge, and how to get along with endemic conflicts between militant religious confessions and belligerent states.’ Perhaps it has learnt by direct experience that modern nations cannot bomb or terrorise each other into permanent submission, and that the best way to live is to respect difference, to co-ordinate it in structures of interdependence and to frame it with legal protections of individual dignity and autonomy. Habermas sees, as part of contemporary European political culture, a tendency to self-criticism and an avoidance of absolutes that history has often shown to be disastrous. The excesses of nationalism have given way to a willingness to pool sovereignty in European Union institutions; the futility of class conflict has given way to a pride in welfare states (Habermas and Derrida, 2003: 294, 297). This characterisation of European values is consistent with Durkheim’s, but historical rather than

32 Roger Cotterrell sociological. Maybe the difference is not so great: both writers see distinctively European conditions as making these values meaningful.5 Habermas maps what he sees as a European outlook. Secularisation is relatively far advanced and there is a relative trust in the state’s organisational and steering capacities, as well as a recognition of the limits of what markets can achieve, a preference for welfare state guarantees of social security, and a desire for a multilateral and legally regulated international order. The benefits of technological progress are not seen with naive optimism and there is a relatively low threshold of tolerance of the use of force against individuals (Habermas and Derrida, 2003: 295–6). Each listed item seems to invite a comparison with Europe’s great moral competitor across the Atlantic and words are not minced. Europe must confront ‘the blunt hegemonic politics of its ally’, which are ‘the unilateral, world-ordering politics of a self-appointed hegemon’. In international relations, ‘the normative authority of the United States of America lies in ruins’ and its recent actions have set disastrous precedents for the world’s future superpowers to follow (Habermas, 2003: 703, 706; Habermas and Derrida, 2003: 295). Given the centrality of law in Habermas’ work it is unsurprising that he discusses European legal structures in the light of his general sociolegal theory. He sees legal and moral rules as complementary but distinct kinds of action norms, valid action norms being those ‘to which all possibly affected persons could agree as participants in rational discourses’ (Habermas, 1996: 107). Morality, on this view, is a diffuse cultural knowledge justifiable discursively, but law has a more focused institutional dimension. It requires a procedure of democratic lawmaking: ‘only those statutes may claim legitimacy that can meet with the assent of all citizens in a discursive process of legislation that in turn has been legally constituted’ (1996: 110). Citizens must be able to see themselves as authors of the rules they live by. In this process of law creation, not just a universalistic morality is relevant, but also pragmatics (reasoning aimed at securing particular chosen goals) and ethics (values specific to the particular individual or community). Thus, while morality relates to humanity as a whole, legal rules always relate to ‘a concrete society... a geographically delimited legal territory’ (1996: 124). Pablo De Greiff (2002) has pointed out the ambiguity in Habermas’s formulations here. Norms are valid only if all potentially affected persons could agree on them; the legitimacy of legal norms, however, is determined in a

5 James Whitman (2000) argues that, while contemporary European law strongly emphasises ‘human dignity’, this concept is largely absent from American legal culture. A Durkheimian approach would, however, suggest that some notion of individual human dignity and autonomy should be a key value for all highly developed, complex, differentiated societies. A Habermasian approach, by contrast, might emphasise the significance of Europe’s distinctive history in shaping its particular contemporary understanding of human dignity as a legal idea.

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delimited territory. But many laws apply extraterritorially or affect people beyond their jurisdiction. Does this mean that, to secure full legitimacy, law should eventually become cosmopolitan, both its applicability and its validity judged in processes that transcend the borders of all nation-state legal systems? Does it mean that state law should at least be supplemented by cosmopolitan law—a world law of humanity, not limited by jurisdictional boundaries—given that in contemporary conditions the effects of laws can be felt anywhere? Or does it mean only that a universal morality is available as a reference point for critique of state law? In any case, Habermas suggests, the nation state is too weak in the face of transnational economic, political and other influences adequately to protect democracy, human rights and its own mechanisms of solidarity, such as the welfare state. Habermas defends a strong politico-legal structure for Europe as a way of defending European values and bases of solidarity in the face of globalisation and the declining power of nation states (Habermas, 1999; Grewal, 2001). A fully cosmopolitan law may be impossible because any ‘political community that wants to understand itself as a democracy must at least distinguish between members and non-members.... This ethical-political self-understanding of citizens of a particular democratic life is missing in the inclusive community of world citizens’ (Habermas, 2001a: 107). In other words, cosmopolitanism abolishes boundaries but any legitimate (democratically founded) legal system requires them. The European Union, however, has such boundaries and Habermas (2001b: 23) insists that any constitution for it must clearly delimit these. In part, therefore, the EU seems to be envisaged, perhaps in the absence of anything better, as a legal bearer of cosmopolitan values (Fine and Smith, 2003: 482–3),6 alongside a reformed United Nations (Zolo, 1999). For Habermas, any process of constitution-making is a public discourse in which free and equal participants seek to agree about the rights they must mutually recognise to regulate their common life legitimately by law (Habermas, 2000: 523). And, for him, a constitution should be, in itself, a focus of patriotism. Its universal moral aspect is its affirmation of human rights and democratic participation. Its ‘local’ element is its elaboration of these principles in a specific political culture (Fine and Smith, 2003: 471). Habermas seems to envisage that ‘constitutional patriotism’ could be wholly or partly detached from nationalism, and this is what the European Union must eventually aim to achieve. If it can do so, it bypasses all ‘no-demos’ arguments; that is, it would show that a European demos (a homogeneous people) is not needed for European politico-legal identity. A different 6 Habermas’s linking of Europe and cosmopolitanism can be compared with Durkheim’s no less bizarre occasional use of ‘Europe’ and ‘humanity’ as near synonyms. Ultimately, however, Durkheim’s sociological interpretation of individualism ties it not to humanity but to modern, complex, highly differentiated societies.

34 Roger Cotterrell focus of unity—appropriate to Europe’s multicultural, mobile and diverse society—could be secured via a constitution. The key to this argument is in Habermas’s civic conception of the nation ‘which exists neither independent of nor prior to the democratic process from which it springs’ (2001b: 15) Civic (as opposed to ethnic) solidarity is produced in a circular process by which democracy and the nation state stabilize each other. Thus, democratic citizenship establishes an abstract, legally mediated solidarity between strangers and a constitution can play a vital role in the process by which a stable polity is created. A European constitution, for example, could have a ‘catalytic’ effect, changing the foci of European politics and social movements. Quite apart from the fact that it is needed to govern a newly enlarged European Union, the process of making it would provide ‘a unique opportunity for transnational communication... a Europe-wide debate’ (2001b: 16, 17). Thus, such a constitution has an innovative role. Its catalytic effect might be the equivalent of the inspirational role of Weber’s charismatic leader.

V. CONCLUSION

Clearly, for the moment, things are not turning out as Habermas envisages. Recent debates on the proposed European Constitution were often not Europe-wide as far as the general public was concerned. They were, for the most part, firmly based in national and local contexts, despite the efforts of Habermas and others to speak across frontiers to rally a ‘European’ opinion (eg Habermas and Derrida, 2003). Law needs meaningful substance as well as form, and the substance of European law must come from the European society that it is to regulate. Habermas’s view seems to be that a constitution can help to form a demos (see also Grewal, 2001: 121). But empirical sociolegal scholars are likely to seek much more concrete evidence of processes of European will-formation and opinionformation than Habermas’s mainly abstract references to communication and discourse provide. There seems a deep complacency in Habermas’s claims about the potential of a constitution produced by ‘officials’, and presented ready-formed for the acclamation of a vast, disparate European populace. The shadow of Carl Schmitt has not entirely disappeared. The issue of sovereignty remains. When European states pool part of their sovereignty, it is necessary to ask where the pooled part resides, and how it is to be conceptualised. Weber’s ideas on charisma and leadership remain significant here. The idea that charisma might attach to a constitution is close to Habermas’s idea of the constitution’s catalytic effect. But charisma is, for Weber, inexplicable and constitutional catalysis might be wishful thinking. Certainly Habermas does not explain its source or even its nature.

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Much more analysis is needed to identify what a particular constitution represents—as an expression of ultimate values or beliefs, a framework for the pursuit of citizens’ interests and an embodiment of traditions. Most problematic here are emotional aspects of allegiance. It is the emotional character of charisma that makes it, for Weber, so resistant to sociological analysis. But the European Union, like any state, needs symbols, memories and myths that can be the foci or catalysts of emotional attachment. None of the theorists discussed in this chapter implies clear solutions to Europe’s notorious democratic deficit. For Ehrlich, living under a benevolently pragmatic autocracy governing through compromises, the problem was not purely one of lack of democracy, but more generally of moral distance: how are regulators to rule with a sophisticated understanding of and sympathy for the regulated? Both Durkheim and Habermas toy with the idea that democracy is as much about effective, conscientious and well-informed deliberation to serve a common good as it is about formal popular representation (Habermas, 2001a: 110–11; Fine and Smith, 2003: 476–7; Cotterrell, 1999: ch 10). Again the central problem is perceived as one of moral distance and the key to legitimacy is in varied mechanisms for overcoming it in different contexts. As we have seen, Durkheim and Habermas also have much to say about European values. The building of Europe may well depend on clarifying, defending and strengthening these values by setting them in both a functional sociological context and a critical interpretation of Europe’s history. But nothing justifies claims that these values are unalterable, uncontroversial, secure, consistently applied or free from ambiguity or hypocrisy. The trajectory of history that, for the moment, makes a commitment to a certain kind of moral individualism a reasonable outcome of ‘painful learning’ may not continue to do so. As Durkheim recognised, the cult of the individual needs continuous reinforcement through law, education and collective reflection on experience. Again, while certain core European values can be identified, they are strictly limited in scope, as a basis for regulation. They cannot justify coercion to life-style uniformity—as, for example, in the prohibition of all religiously-mandated forms of dress (see eg Shadid and Van Koningsveld, 2005) or behaviour.7 Rather, they are a blueprint for unity within difference, the moral integration of social and cultural diversity, and for promoting mutual respect. Durkheimian individualism is necessarily a thin value system but its protection and extension throughout Europe should nevertheless be central to the European project.

7 An important test would surely be whether these forms substantially prevent or seriously impede processes of social communication and interaction that are fundamental in fostering mutual respect, and individual dignity and autonomy, for all citizens within a diverse society.

36 Roger Cotterrell The appeal to a common European history and experience that underpins some of Habermas’s discussions also emphasises the continuing significance of shared tradition, in a broad sense, in European identity. But Europe is divided as well as united by its collective memory. For example, contemporary views of Europe as an environment of co-existence are inevitably influenced by different understandings of the history of changes in its internal and external political, national, linguistic and other boundaries. Up to a point, law can mediate between or influence these understandings or their effects (Misztal, 2003). By contrast, Weber’s emphasis on the legitimating power of rules that seem to guarantee order and security within which people can pursue their projects, reminds us of the importance of purely instrumental foundations of European cohesion. European Union regulation must be designed so that in general it seems to its citizens to be an appropriate overall framework in which to pursue their economic and other projects, and more obviously appropriate than any alternative general structure of legal regulation that could realistically be envisaged. Perhaps it can be said at least, on the basis of this chapter’s account of classic and contemporary theory, that sociolegal traditions allow us to identify many different regulatory aspects of European organisation. These resources help in clarifying problems and in pointing out directions for their possible solution. Most importantly, they illustrate, through their contrasting emphases, that the European project in its regulatory aspects demands attention to tradition, to ultimate values or beliefs, to the everyday demands of utility and to elusive emotional components of association and allegiance. In this irreducible complexity lie both the difficulty and the promise of the idea of Europe today.

REFERENCES Arnaud, A-J (1995) ‘Legal Pluralism and the Building of Europe’ in H Petersen and H Zahle (eds), Legal Polycentricity: Consequences of Pluralism in Law, pp 149–69 (Aldershot, Dartmouth). Brubaker, R (1984) The Limits of Rationality: An Essay on the Social and Moral Thought of Max Weber (London, George Allen & Unwin). Cotterrell, R (1995) Law’s Community: Legal Theory in Sociological Perspective (Oxford, Clarendon Press). —— (1996) ‘Some Aspects of the Communication of Constitutional Authority’ in D Nelken (ed), Law as Communication, pp 129–51 (Aldershot, Dartmouth). —— (1999) Emile Durkheim: Law in a Moral Domain (Stanford: Stanford University Press/Edinburgh, Edinburgh University Press). —— (2006a) Law, Culture and Society: Legal Ideas in the Mirror of Social Theory (Aldershot, Ashgate).

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—— (2006b) ‘Living Law Revisited: Communitarianism and Sociology of Law’ in P Van Seters (ed), Communitarianism in Law and Society, pp 17–32 (Lanham, Rowman and Littlefield). Dalberg-Larson, J (2000) The Unity of Law: An Illusion? On Legal Pluralism in Theory and Practice (Glienicke, Berlin, Galda & Wilch Verlag). De Greiff, P (2002) ‘Habermas on Nationalism and Cosmopolitanism’ 15 Ratio Juris 418–38. Delmas-Marty, M (2002) Towards a Truly Common Law: Europe as a Laboratory for Legal Pluralism, transl N Norberg (Cambridge, Cambridge University Press). Durkheim, E (1957) Professional Ethics and Civic Morals, transl C Brookfield (London, Routledge & Kegan Paul). —— (1960) ‘The Dualism of Human Nature and Its Social Conditions’ in KH Wolff (ed), Essays on Sociology and Philosophy by Emile Durkheim et al, pp 325–40 (New York, Harper & Row reprint, 1964). —— (1969) ‘Individualism and the Intellectuals’ reprinted in WSF Pickering (ed), Durkheim on Religion: A Selection of Readings with Bibliographies, pp 59–73 (London, Routledge & Kegan Paul). —— (1984) The Division of Labour in Society, transl WD Halls (London, Macmillan). —— (1987) La science sociale et l’action, 2nd edn, (Paris, Presses Universitaires de France). Ehrlich, E (1936) Fundamental Principles of the Sociology of Law, transl WL Moll (New Brunswick, Transaction Publishers reprint, 2002). Fine, R and Smith, W (2003) ‘Jürgen Habermas’s Theory of Cosmopolitanism’ 10 Constellations 469–87. Gessner, V (1994) ‘Global Legal Interaction and Legal Cultures’ 7 Ratio Juris 132–45. Graver, HP (1990) ‘Administrative Decision-Making and the Concept of Law’ in A Görlitz and R Voigt (eds), Postinterventionistisches Recht, pp 177–94 (Pfaffenweiler, Centaurus Verlagsgesellschaft). Grewal, SS (2001) ‘The Paradox of Integration: Habermas and the Unfinished Project of European Union’ 21 Politics 114–23. Griffiths, J (1986) ‘What Is Legal Pluralism?’ 24 Journal of Legal Pluralism 1–55. Habermas, J (1996) Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, transl W Rehg (Cambridge, Polity). —— (1999) ‘The European Nation-State and the Pressures of Globalization’ 235 New Left Review, 1st ser 46–59. —— (2000) ‘Remarks on Erhard Denninger’s Triad of Diversity, Security and Solidarity’ 7 Constellations 522–8. —— (2001a) The Postnational Constellation: Political Essays (Cambridge, Polity). —— (2001b) ‘Why Europe Needs a Constitution’ 11 New Left Review 2nd ser 5–26. —— (2003) ‘Interpreting the Fall of a Monument’ 4 German Law Journal 701–8. Habermas, J and Derrida, J (2003) ‘February 15, or What Binds Europeans Together: A Plea for a Common Policy, Beginning in the Core of Europe’ 10 Constellations 291–7.

38 Roger Cotterrell Harding, C (2000) ‘The Identity of European Law: Mapping Out the European Legal Space’ 6 European Law Journal 128–47. Harrington, A (2003) Concepts of Europe in Classical Social Theory: Themes in the Work of Ernst Troeltsch and his Contemporaries and their Status for Recent Conceptions of Modernity in Europe EUI Working Paper SPS 2003/15 (Florence, European University Institute). Hobsbawm, E (1994) Age of Extremes: The Short Twentieth Century 1914–1991 (London, Michael Joseph). Jaspers, K (1989) On Max Weber, transl RJ Whelan (New York, Paragon House). La Torre, M (1999) ‘Legal Pluralism as an Evolutionary Achievement of Community Law’ 12 Ratio Juris 182–95. Likhovski, A (2003) ‘Czernowitz, Lincoln, Jerusalem and the Comparative History of American Jurisprudence’ 4 Theoretical Inquiries in Law 621–57. Luhmann, N (1979) Trust and Power, transl H Davis, J Raffan and K Rooney (Chichester, John Wiley). Mayer, JP (1956) Max Weber and German Politics: A Study in Political Sociology, 2nd edn, (New York: Arno reprint, 1979). Merry, SE (1988) ‘Legal Pluralism’ 22 Law and Society Review 869–96. Misztal, BA (2003) ‘Durkheim on Collective Memory’ 3 Journal of Classical Sociology 123–43. Nelken, D (1984) ‘Law in Action or Living Law? Back to the Beginning in Sociology of Law’ 4 Legal Studies 157–74. Schmitt, C (1988) The Crisis of Parliamentary Democracy, transl E Kennedy (Cambridge, Mass, MIT Press). Scott, J and Trubek, D (2002) ‘Mind the Gap: Law and New Approaches to Governance in the European Union’ 8 European Law Journal 1–18. Senden, L (2005) ‘Soft Law, Self-Regulation and Co-Regulation in European Law: Where Do They Meet?’ 9 Electronic Journal of Comparative Law, no 1 (January) . Shadid, W and Van Koningsveld, PS (2005) ‘Muslim Dress in Europe: Debates on the Headscarf’ 16 Journal of Islamic Studies 35–61. Snyder, F (1999) ‘Governing Economic Globalisation: Global Legal Pluralism and European Law’ 5 European Law Journal 334–74. Vinogradoff, P (1928) ‘The Crisis of Modern Jurisprudence’ in HAL Fisher (ed), The Collected Papers of Paul Vinogradoff, pp 215–25 (Oxford, Clarendon Press). Weber, Marianne (1975) Max Weber: A Biography, transl H Zohn (New Brunswick, Transaction reprint, 1988). Weber, Max (1930) The Protestant Ethic and the Spirit of Capitalism, transl T Parsons (London, Unwin reprint, 1985). —— (1948) ‘Politics as a Vocation’ in HH Gerth and CW Mills (eds and transl), From Max Weber: Essays in Sociology, pp 77–128 (London, Routledge & Kegan Paul). —— (1968) Economy and Society: An Outline of Interpretive Sociology, transl E Fischoff et al (Berkeley, University of California Press reprint, 1978). Whitman, JQ (2000) ‘Enforcing Civility and Respect: Three Societies’ 109 Yale Law Journal 1279–1398.

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Witteveen, WJ (1993) ‘The Symbolic Constitution’ in B van Roermund (ed), Constitutional Review: Theoretical and Comparative Perspectives, pp 79–104 (Deventer, Kluwer). Zolo, D (1999) ‘A Cosmopolitan Philosophy of International Law? A Realist Approach’ 12 Ratio Juris 429–44. Zürn, M and Wolf, D (1999) ‘European Law and International Regimes: The Features of Law Beyond the State’ 5 European Law Journal 272–92.

2 American and European Ways of Law: Six Entrenched Differences* ROBERT A KAGAN

A

re european and American legal systems moving toward convergence? There surely are many pressures in that direction. An increasingly integrated, competitive international economy, demographic changes and immigration flows confront all rich democracies with similar social, economic, political and environmental problems. Proposed legal solutions circulate in a global communications network. The European Union and international treaties demand cross-national harmonisation of domestic laws on important aspects of pollution control, bank safety, human rights, public health and much more. As political scientist Beth Simmons (2004) argues, in an increasingly interdependent world, when powerful polities such as the US and the European Union (or important constituencies within them) suffer significant costs or disadvantages from divergent national legal or regulatory standards, they are likely to use international or supra-national institutions, as well as their own economic and political leverage, to push for legal convergence. Some scholars (Garth and Dezalay, 1995) suggest that these pressures, abetted by aggressive American businesses and law firms, are resulting in the ‘Americanisation’ of law in Western Europe, compelling European nations to emulate neoliberal American policies and laws and adopt America’s adversarial, litigation-encouraging modes of governance (Kelemen, 2006; Kelemen and Sibbett, 2004) and thereby eroding the ‘European Way of * This chapter is a substantially revised version of a paper prepared for the First European Socio-Legal Conference, Onati, Spain, 6–8 July 2005. Margaret Boittin provided excellent research assistance, and support was provided by the Center for the Study of Law and Society, University of California, Berkeley. Daniel Kelemen, Erhard Blankenburg, Tom Burke, John Cioffi, Jacqueline Gehring, Helen Hartnell, Keith Hawkins, Frank Zimring, Alec Stone Sweet, James Whitman, Ralf Rogowski, Oscar Chase and participants in Columbia Law School’s Legal Theory Workshop, as well as an anonymous peer reviewer, provided valuable references and comments on earlier versions of this paper. Errors, omissions, and overgeneralisations in the author’s assertions about law and legal institutions in Europe are his responsibility alone.

42 Robert A Kagan Law’. This chapter addresses that thesis, analysing the factors that push in that direction and the general direction of the resulting legal change. But it questions the extent to which the forces of change have led or might lead to convergence with the American ‘way of law’, particularly at the level of European nation states, whose domestic legal systems and institutions still feature large in the lives of individuals, business firms and other organisations. In every European nation, I suggest, there are political institutions, political constituencies and legal elites who would be disadvantaged or philosophically disturbed by adopting many laws and legal practices that are characteristically ‘American’.1 They often fight hard against adopting such measures, or if prodded to do so by European Union directives and court decisions, they strive to make them more congruent with national legal and administrative traditions. In conclusion, I discuss six important and distinctive features of the American law and legal practice, both substantive and ‘stylistic’, that European countries are unlikely to emulate. Generalising about entire legal systems, each of which is pervaded by complexity and contradictory features, is dangerous, particularly when one subject is the United States, with its many different jurisdictions and administrative agencies, and the other subject is the ‘legal systems of Western European nations’, each of which has its own distinctive traditions. The best available ‘data’ on which to base comparisons are sociolegal case studies which compare specific legal processes in the US and one or two Western European countries. But some of these case studies are now twenty years old. There are far from enough comparative case studies to provide a reliably representative picture of the entire legal landscape. Nor are there many empirical studies of how European member states actually implement EU law and legal notions that arguably have been imported from the United States. Nevertheless, this article plunges incautiously ahead, in hopes that some tentatively-offered generalisations and speculations will stimulate further debate and inquiry.

I. WHAT IS ‘AMERICAN’ LAW?

The legal systems of the United States and Western European nations almost surely are more similar than they are different. Legal ideas continuously cross the Atlantic in both directions, as do travellers, who rarely worry that they are landing in an alien legal environment. The same fundamental individual and political liberties and concepts of equal treatment are enshrined

1 Throughout this chapter, I identify ‘Americanisation’ and ‘American’ with the United States alone, ignoring all other countries in North, Central, and South America, because that is the sense in which the term has been used in popular and scholarly discussion of the Americanisation of European law.

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in the laws of both continents. When a US tyre manufacturer discovered that polyvinyl chloride fumes can cause liver cancer in exposed workers, regulatory officials in the US and Western Europe (as well as Japan) quickly adopted roughly similar regulatory controls (Badaracco, 1986). Two recent cross-national studies indicated that multinational corporations that conduct parallel business operations in the U.S. and in other OECD countries face similar environmental laws and employ similar environmental control measures on both continents (Kagan and Axelrad, 2000; Gunningham, Thornton and Kagan, 2003). In light of the many points of legal convergence, what does it mean to refer to the ‘Americanisation’ of European law? For this chapter, I will define it as the adoption by Western European countries of laws, legal practices and legal frameworks that had been adopted in the United States significantly earlier and that represent significant departures from longstanding European legal traditions. Thus defined, the ‘Americanisation of European law’ would exclude many instances of legal convergence that emerge through nearly simultaneous adaptation to similar new problems, as in the polyvinyl chloride case mentioned above, or the control of computer software piracy. Rather, it refers to legal changes in Europe that represent sharp departures from those aspects of European law and legal practice that previously had been significantly different from American legal traditions. What, then, might be considered ‘distinctively American’ laws or legal practices?2 Some traditionally significant differences between the United States and Western Europe have concerned substantive law, others what might be called ‘legal style’. Proceeding in view of space constraints at a high level of generalisation, I will discuss each in turn.

A. American Distinctiveness in Substantive Law A detailed list of US-European substantive legal differences would be quite long. At the risk of being too selective, therefore, I will point to two clusters of particularly salient legal contrasts. Social Provision, Workers’ Rights and Taxes As often noted, in the last forty years, Western European governments have provided a wider array of legally-guaranteed rights to social welfare benefits and health care than those provided by American law (Wilensky,

2 In using the term ‘American distinctiveness’, I refer to ways in which the US is legally different from Western European countries. I intend no normative or evaluative judgment thereby, and do not wish to imply that European legal models are somehow the ‘normal’ base point from which other legal systems should be measured.

44 Robert A Kagan 2002; Kagan, 2001). Since World War II, the US consistently has spent significantly less on legally-guaranteed social benefits, as a percentage of GNP, than Western European countries.3 In addition, governmentlegislated employee rights and benefits—minimum wage levels, restrictions on dismissal, severance pay, unemployment benefits, vacation pay—in the US have long been significantly sparser than in most European countries (Gornick et al, 1997: 138; McFate, 1995: 636; Freeman, 1994; Freeman and Katz, 1994; Abraham and Houseman, 1993).4 Concomitantly, the US has long been near the bottom of the list of rich democracies in tax revenue as a proportion of gross national product (Steinmo, 1993). Personal income tax rates in the US generally have been lower than in Western European countries, as have sales taxes (most notably, the EU value added tax, taxes on gasoline and cigarette taxes). The United States, however, has relied much more on local property taxes for municipal services and public education. Legal Sanctions Compared to Western European nations, American law, state and federal, generally has called for (and imposed) more severe legal sanctions for violations—in civil, regulatory and criminal law. For example, civil damage awards in personal injury cases are much higher than in European courts, due to significant differences in tort law and in government-guaranteed rights to medical care (Schwartz, 1991).5 The US has also been distinctive in enabling entrepreneurial lawyers to aggregate many individual tort claims into a single class action, not infrequently demanding millions of dollars in damages. Thus there has been no counterpart in Europe to the American ‘tort industry’ or to the gigantic asbestos class actions that have driven tens of corporations into bankruptcy (even though the rate of asbestosis in some Western European countries is higher than in the US). No European nation has authorised or imposed civil or criminal penalties for violations of regulatory laws as weighty as those imposed in the

3

See note 24, below. It should also be mentioned, however, that in the last 25 years, the American economy, less burdened by taxes and restrictive labour laws, has been more successful than most European welfare states in fostering entrepreneurial innovation, generating jobs, and holding down youth and long-term unemployment. 5 In the United States, in contrast with European countries, tort law historically has enabled victims to recover full damages from their injurers, including future lost earnings and medical expenses, disregarding any amounts the plaintiff has or will receive from public or private insurance coverage (although some state legislatures have moderated this rule in recent years (ATRA, 2004). And in most Western European tort law systems, non-economic damages —what Americans call ‘pain and suffering’—are assessed not according to the discretion of lay juries but by detailed judge-applied legal rules or schedules that, by American standards, provide only moderate amounts. 4

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United States.6 In the last decade, criminal prosecution of corporate officers and prison sentences for environmental offences have been quite common (Blabolil, 1997; Kagan and Lochner, 1998; Gunningham et al, 2005). US law has been distinctive, too, in authorizing and often imposing both criminal and large private civil sanctions for the same regulatory violation.7 With respect to criminal law, the United States differs sharply from European nations, of course, in employing capital punishment (Zimring and Hawkins, 1997: 33–39), although executions are concentrated in just a few states. But for the whole range of felonies, as well as the sale of psychoactive drugs, American courts impose much longer prison terms than Western European courts (Lynch, 1987; Frase, 1990: 658; Selke, 1991; Whitman, 2003), and are much more likely to impose jail sentences for ‘victimless’ public-order infractions such as disorderly conduct, prostitution and public drunkenness (Frase and Wiegend, 1995: 320–21; Frase, 1990: 569–70).

B. Legal Style: American Adversarial Legalism Viewed in relation to Western European governments (including the United Kingdom), the United States has developed a distinctive ‘legal style’—by which I mean its way of implementing public policies, crafting and enforcing laws and regulations, conducting litigation, adjudicating disputes and empowering courts. American laws generally are more detailed, complicated and prescriptive. American methods of litigating and adjudicating legal disputes are more adversarial and costly. Legalistic (as opposed to cooperative) enforcement and legal conflict is much more prevalent in American regulatory programs. American judges generally have been bolder in scrutinising and ordering changes to governmental plans, regulations, practices and decisions. Interest groups in the United States, consequently, more often use courts as an alternative political forum for seeking policy goals. American civic, economic and political life is more deeply pervaded by legal conflict

6 In 1988, for example, Congress increased criminal fines for insider trading to $1,000,000 for individuals and $2,500,000 for entities, and doubled the maximum prison term for violations of any securities law provision from 5 to 10 years (Pitt and Shapiro, 1990:238). Under both federal and California law, courts can impose a criminal fine of up to $1,000,000 on a corporation for violations of water pollution law that ‘knowingly endanger another person’; individuals can be fined up to $250,000 and sentenced to prison for up to 15 years. The federal Truth-in-Lending Act granted prevailing plaintiffs a $100 minimum award, regardless of actual losses, plus their attorneys’ fees; enterprising attorneys could then bundle tens of thousands of bank customers together in a class action, ‘raising the specter of enormous damages suits for minor violations of the statute’ (Rubin, 1991: 237). 7 Under the federal anti-trust law, defendants can be (and not infrequently have been) prosecuted criminally by the government and then sued for ‘treble damages’ by private plaintiffs. With respect to multiple penalties for environmental violations, see Kagan, 2001: 193–94).

46 Robert A Kagan and by political controversy about regulations, judicial decisions, judicial selection and legal processes. Most of these generalisations reflect the recurrent findings of sociolegal studies in the 1980s and 1990s that compared a particular legal, governmental or regulatory process in the United States with parallel processes in other economically advanced democracies.8 To encapsulate some of these distinctive qualities of governance and legal process in the United States, I use the shorthand term ‘adversarial legalism’— a mode of policy implementation and dispute resolution that encourages lawyer-dominated litigation. Organisationally, adversarial legalism is associated with decision-making institutions in which authority is fragmented and in which hierarchical control is relatively weak. At the level of policy-implementation, adversarial legalism is associated with deliberate governmental encouragement of litigation and judicial sanctions, rather than bureaucratic administration alone, to implement public policy, from the promotion of equal employment opportunity and environmental protection to control of malpractice by police, physicians, business firms, schools, electoral commissions and local government. At the level of litigation and adjudication, a key feature of adversarial legalism is litigant activism: the assertion of claims, the search for controlling legal arguments and the gathering and submission of evidence is dominated not by judges or governmental officials but by disputing parties or interests, acting primarily through lawyers. Adversarial legalism thus can be contrasted with ‘bureaucratic legalism’—a style of policy-making and dispute resolution in which legal authority and decision-making is hierarchically organised and disputants and their lawyers play a more restrained role. That bureaucratic ideal, as Damaska (1986) has argued, has traditionally animated modes of policy-implementation and law enforcement, as well as modes of adjudication, in Western European parliamentary regimes. Yet even compared to the British ‘adversarial system’ from which it descended, American adjudication is more party-influenced, less hierarchically-controlled (Hughes, 1984), and more open to novel legal and policy arguments put forth by parties and their lawyers (Atiyah and Summers, 1987). This adversarial approach is institutionalised through distinctively American social arrangements and practices, including a diverse, politically-selected and weakly-hierarchical judiciary, armed with significant law-making and remedial powers; a highly entrepreneurial legal profession and a rich array of public interest law firms, both empowered by wide-ranging rights to pre-trial discovery; and a mode of legal education that stresses legal creativity and advocacy and an instrumental view of law (Kagan, 2001: 55–57). 8 For citations to relevant studies, see Bogart, 2002: 114 and Kagan, 2001: 8 (Table 1). See also Steinmo (1993: 38, 41) for an analysis of the relationship between political controversy, governmental structure, and the much greater complexity of US tax law, as compared to the UK and Sweden.

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Adversarial legalism also can be distinguished from modes of policymaking and dispute resolution that are hierarchically organised but not legalistic, since they vest authority in the informed discretionary judgement of professionals, political officials, administrators or corporatist bodies. For example, in many Western European countries, decisions concerning disability benefits for injured workers are made by a panel of governmentappointed physicians (or a mixed panel of physicians and social workers), in contrast with the adversarial American workers’ compensation tribunals. In contrast to the US, where policymaking by regulatory agencies is structured by legally-prescribed analytic standards, quasi-judicialised procedures and the threat of judicial reversal, regulations in Western European countries traditionally have been worked out informally by technical experts and representatives of affected interests, with minimal participation by lawyers and infrequent appeal or reversal by courts (Badaracco, 1985; Brickman et al, 1985; Vogel, 1986). Adversarial legalism, must be emphasised, does not pervade the American legal order uniformly or completely. When legal and regulatory disputes emerge, most are resolved informally, through negotiation or bureaucratic processes. Litigation via adversarial legalism is so cumbersome, costly and risky that it induces disputants to resolve most litigated disputes—civil, criminal and administrative—before trial. But adversarial legalism, both as a set of governmental and legal structures and as a legal practice, has been far more common in the United States than in Europe. It has a powerful influence on administrative and governmental processes and shapes the character of negotiated legal settlements.

II. SOURCES OF AMERICAN LEGAL DISTINCTIVENESS

To address whether the differences between American and European law and legal style discussed above are diminishing, or likely to diminish, my first step in venturing an answer is to provide a condensed account of the sources of American legal distinctiveness.9 Prominent among those sources is a political tradition that is pervaded by mistrust of concentrated power, both governmental and economic (Lipset, 1996: 21), and by a corresponding propensity to fragment and limit power and constrain it by law and courts (Kagan, 2001; Jacob et al, 1996). Compared to most Western European countries, the national government in the United States shares more power with states and municipalities. At every level of government, chief executives share more power with legislatures, legislative party leaders with subcommittee chairs and back-benchers. Administrative agencies share

9

For a more complete account, see Kagan (2001: ch 3).

48 Robert A Kagan more power with judges, judges with lawyers and juries (Kagan, 2001). Professional governmental bureaucracies were much slower to develop in the United States than in Europe (Skowronek, 1982), and more faith was placed in courts as protectors of individual rights, checks on government, and, through the common law process, makers of law. In the economic realm, too, government and corporate power has been especially fragmented in the United States. The Constitutional framers’ commitment to a nationwide ‘common market’ empowered courts to block local economic protectionism, which fostered a highly competitive brand of capitalism, as did the system of corporate ownership and finance encouraged by American anti-trust and banking laws (Roe, 1991). Legal coordination and social control was provided more by court-enforceable contract law than by government dominance, large banks, or cartels. In consequence, the American business community, David Vogel (1986) has argued, historically has been less deferential to government than its counterparts in England and Western Europe, and far more inclined to battle government regulation in the courts. The resistant business culture, in turn, has spurred populist demands for more legalistic regulation and more punitive legal sanctions, including tougher tort law. Moreover, in contrast with most Western European countries, the United States has never had the kind of strong socialist or political party, dominated by organised labour union federations, which—whether in office or competing for it—gave Western European governments incentives to enact protective labour legislation, employee entitlements and social benefit programmes.10 That helps explain why business-labour relations in the US have developed in a more decentralised, ‘privatised’ way, why US labour law does not mandate comparable nationwide rights and why competition from non-union firms has weakened labour’s hand in bargaining with unionised firms (Rogers, 1990; Kagan, 1990). Relatedly, analysing 19 rich democracies, Harold Wilensky (2002) demonstrates that higher national tax revenues are associated with the presence of (1) a consistently strong left-of-centre political party or a strong Catholic party, and (2) corporatist governance systems—both absent in the United States. The American welfare state, too, has had a distinctively decentralised character. Employee pension plans, workplace-injury insurance and health care provision historically have been left far more fully to the private sector than has been true of European welfare states. Since providers of these benefits and services in the United States are numerous private entities, competing to cut costs, litigation in court over benefits and coverage almost certainly has been far more common in the US.

10 That role was never filled in the U. S. by the Democratic Party, which for many years was split between an industrialising North and Midwest and an agricultural, racist South.

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Finally, in the last forty years, political pressures for more active government have intensified American adversarial legalism (Kagan, 2001: 35–37). Beginning in the 1960s, political movements and advocacy groups demanded increasingly comprehensive governmental protection from racial discrimination, gender inequality, violent crime, environmental degradation, hazardous products and technologies, sudden economic loss, arbitrary treatment by police and governmental bureaucracies and so on. Responding to these political demands required a more powerful, more activist central government—which conflicted with a political tradition of limited, decentralised government. Adversarial legalism provided a way of reconciling, however roughly, these inconsistent political desires. Advocacy groups seeking new rights turned to the courts and politically responsive American judges often read those rights into the common law, statutes and constitutional provisions. Politicians enacted statutes that granted administrators more power (including tough legal sanctions); but fearing political bias by agencies, federal, state and local, they constrained agencies’ discretion with detailed rules and procedural requirements, empowering both regulated entities and NGOs to challenge administrators’ decisions in court (Melnick, 2004). In sum, American judges and politicians have substituted lawsuits, formal procedures, rights, tough legal penalties, lawyers and courts—the building blocks of adversarial legalism—for the powerful bureaucracies, corporatist bodies, central banks and social insurance programmes that have dominated the more centralised activist regulatory-welfare states of Western Europe.

III. PRESSURES FOR ‘AMERICANISATION’ IN EUROPEAN LEGAL SYSTEMS

Assuming my ‘political economy’ explanation for the distinctive substantive and stylistic features of American law is correct, then the more European governments and economies have come to experience the same political and economic pressures as the US, and the more they come to resemble the American political economy, the more incentives they should experience to mimic American laws and legal practices (Kagan, 1997). In the realm of political economy, for example, the EU’s drive to deepen the common market, together with the intensification of international economic competition, has encouraged greater reliance on markets, less reliance on informal corporatist governance; this might be expected to invite more legalistic forms of regulation and more litigation. Meanwhile, continuing political demands for individual rights, non-discriminatory treatment and environmental protection—combined with a fragmented governmental structure at the EU level and growing distrust of governmental expertise—invite more reliance on courts to

50 Robert A Kagan elaborate and implement new legal norms and to enhance governmental accountability.

A. Global Competition, Neoliberalism and Adversarial Legalism in the Economic Realm A basic theorem in sociolegal studies is Donald Black’s (1976) proposition that resort to law increases in accordance with the social distance between parties, while such resort is suppressed when parties are enmeshed in continuing relationships. Thus adversarial legalism increased in the US when the intensification of global competition led to rapid shifts in production chains, trade relationships and financing arrangements, engaging larger numbers of companies, domestic and foreign. Along with greater efficiency, the risks of opportunistic behaviour increased. American legislatures and courts formulated new regulations and private rights of action to punish financial deception, insider trading, bankruptcy abuse, risky forms of trading and unjust employee dismissals. This led to more lawsuits between corporations (Galanter, 1998; Nelson, 1990) and against corporate managers, more lawsuits between debtors and creditors and more strategic use of litigation to intimidate and extort (Cooper, 1991). Corporations invested in more detailed, costly legal documents, designed to fend off those legal risks. So too in Europe, where a system of corporate finance dominated by large banks and interlocking corporate groups has been eroded by a trend toward more fluid, public and international modes of corporate finance and corporate restructuring (Coffee, 1991). European corporate managers now more often are strangers to their creditors and stockholders and vice versa. Kelemen and Sibbett (2004: 109) argue that intensified economic competition in Europe has (a) increased the number and diversity of products/ service markets and of competing firms, and hence (b) undermined informal systems of regulation based on insider networks and trust, and hence (c) induced EU and member state regulatory systems to become more legalistic and adversarial. Other authors have noted that the 1990s saw the advent of European legal techniques that reflect methods pioneered in the US— legalistic financial regulation (Pitt and Hardison, 1992), aggressive lawyering in commercial litigation and arbitration (Garth and Dezelay, 1995; Kelemen and Sibbett, 2004: 114–15), and detailed, defensively-written contracts (Shapiro: 1993: 41; Wiegand (1996: 139)). After years of reluctance to follow the US in authorising shareholder and consumer class actions against corporations, Great Britain and Sweden have done so in recent years, and political leaders in Germany and France have proposed doing the same (Tait and Sherwood, 2005). Intensified economic pressures for greater efficiency also have fuelled EU directives and a member state-level trend toward privatisation of

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telecommunications, rail and air transportation, health insurance and retirement funds—functions that have long been relegated to private, competitive markets in the US.11 Stephen Vogel’s (1996) comparative analysis of privatisation and deregulation in financial services, telecommunications, public utilities and transportation, is entitled Freer Markets, More Rules, for he finds that along with marketisation, control by law replaces informal controls by governmental ministries and banks. Similarly, intensified competition, along with demographic changes, have increased pressures and member state policies that seek to reduce the cost burdens of social welfare programmes and increase the flexibility of labour markets—raising fears of a dramatic shift toward the less generous and protective ‘American model’. B. Fragmented Government and Adversarial Legalism in Public Law Adversarial legalism increased in the US, it was suggested earlier, because of broader political developments, particularly the tension between (a) intensified political demands for governmental action and (b) a structurally fragmented governmental system reflecting distrust of governmental power. The government of the European Union, too, has faced political demands to promulgate Community-wide norms, not only to foster economic integration but also to enhance environmental protection and individual rights. But the political authority in the EU is fragmented, both between the Commission, Council and Parliament and within those bodies. The EU government does not have its own local-level enforcement bureaucracy or courts. Logically, then, one would expect proponents of Europe-wide norms, like American reformers in the 1960s and 1970s, to seek laws that empower private businesses and advocacy organisations to bring lawsuits against member-State governments which are not administering EU directives enthusiastically. Thus in a series of cases establishing and extending the ‘direct effect’ (and then the ‘indirect effect’) doctrine, the ECJ encouraged private claims in member state courts for violations of EU Directives and some EU regulations (Stone Sweet, 2000: 161–65). Similarly, the fragmentation of EU authority, according to Kelemen and Sibbet (2004: 110) explains why the EU Commission (like the American Congress in the 1960s and 1970s) has promulgated ‘detailed laws with strict goals, deadlines and procedural requirements, and has encouraged an adversarial, judicialised approach to enforcement’. 11 The OECD recently completed a study of governmental outsourcing, that is, the purchase of goods and services of a kind that traditionally, or often, has been provided directly by governmental entities. While the US ranked substantially higher in proportion of services outsourced than most Western European countries, their numbers were rising, and the UK substantially exceeded the US in that regard (OECD, 2005a: 14–15).

52 Robert A Kagan Further, because the fragmented and complex decision-making structure of the EU often has resulted in deadlock or delay in responding to political demands for policy initiatives, it should not be surprising that, like the US Supreme Court in the 1960s, the ECJ, beginning in the 1960s and 1970s, became the most dynamic policy making institution in the European Community (Shapiro, 1993; Weiler, 1991). Thus the ECJ read the Treaty of Rome expansively to pave the way for community-wide environmental regulation (Vandermeersch, 1987), forge the ground-rules for reconciling national product regulations with free trade (Vogel, 1995), interpreted EU directives on social issues so as to expand member state obligations (Stone Sweet and Brunell, 2002: 286–7), and encouraged private litigation to enforce environmental norms (Cichowski, 1998: 400–1). In addition, European member state governments, like state governments in the United States, have been exposed to intensified political demands for more and better legal protections and remedies. One result has been a tendency, in a number of European countries, to adopt environmental and consumer protection regulations that are more stringent than those in US, at least with respect to issues such as genetically modified crops and foods, sale of beef and milk from hormone-fed cattle, carbon emissions and product recycling (Vogel, 2004).12 And just as in the US, there are signs of increased policy-oriented litigation in European member states. Jeffery Sellers (1995) found that in the 1980s, governmental land use decisions were challenged in court (usually on environmental grounds) almost as often and as just as successfully in Montpellier, France and in Freiburg, Germany as in New Haven, Connecticut. In the last two decades, British courts have substantially increased the incidence of review of validity of governmental administrative action (Sunkin, 1994; Sterett, 1999). Distrust of government and professional expertise may lie behind judicial liabilityexpanding rulings, such as a much-discussed French case establishing medical liability for birth defects. Most fundamentally, the growing power of high courts in European countries—as enforcers and elaborators of national constitutional rights and of rights articulated by the EU Commission, the ECJ and the European Court of Human Rights—has fragmented authority in EU member states, undermining unquestioned parliamentary (and hence national bureaucratic) sovereignty (Stone Sweet, 2000). The obligation to enforce EU law and ECJ rulings has triggered changes, or at least movements for change, in the judiciaries of member states (Lasser, 2005), giving judges an opportunity to

12 Overall, according to a systematic comparative study of 100 risk regulations in the US and Europe, 1970–2004, there is no significant difference in relative ‘precaution’ or stringency, although there has been a modest shift toward greater relative precaution in Europe since 1990 (Hamitt et al, 2005).

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play a larger role in the shaping of law and individual rights.13 Hence as in the United States, those who fail to get their way in legislative debates or via political pressure on administrative policymakers can more often frame their objections in terms of constitutional rights, EU law, or treaty-based human rights—and pursue them through litigation.14

IV. IMPEDIMENTS TO LEGAL CONVERGENCE: WHY EUROPEAN LEGAL SYSTEMS WILL NOT BE ‘AMERICANISED’

If the law of the European Union and its member states is changing in ways that seem, at least in some ways, to resemble distinctive features of American law, the question remains how far the European way of law is moving along that trajectory, and what impediments tend to limit that movement. In addressing that issue, this section is necessarily speculative.15 General theories of policy change and stasis provide the basis for some hypotheses, however. Regardless of the incentives and pressures for legal change generated by global competition and Europeanisation, changes in member state laws and legal practices are made by political and legal elites—legislators, bureaucrats and judges. Their deep-seated beliefs matter. Pressures for significant changes in public policies and modes of implementation typically encounter counter-pressures engendered by ‘path dependency’—the resistance to change that typically is stimulated by long-established institutional arrangements (Pierson, 2004). There are always powerful interests, some in the population at large, some among relevant elites, who would lose influence or income from proposed legal changes. Lawyers, judges and legal scholars are usually quick to point out how proposed legal changes would clash with long-established laws, legal principles and institutional practices, or might have unpredictable and probably unwelcome consequences. Even if submitting to a new legal transplant is unavoidable, those committed to existing ways of law, for either material or idealistic reasons, often try to prune the transplant to mesh with existing arrangements. In sum, the factors that have generated American legal distinctiveness, even if now operating in

13 For a summary of striking constitutional changes in the United Kingdom, see McDonald and Hazell (2006) and Malleson (2006). 14 Guarneri and Pederzoli, 2002 also point to the increased political role of judges in Italy, Spain, and France as prosecutors of governmental officials—a phenomenon that has been common in the United States (Ginsberg and Shefter, 1990; Maass, 1987), although in different institutional form. 15 To assess the nature and strength of the hypothesised ‘impediments’, it would have been helpful to have been able to draw on some detailed accounts of the actors and debates within European member states concerning proposals to adopt particular US-style laws and policies. I confess to not having undertaken a search for such accounts.

54 Robert A Kagan Europe, encounter there a very different set of cultural and institutional traditions and interests which are likely to impede and redirect movement toward the Americanisation of European law. One of those impediments, I believe, is the tenacity of European national political and legal cultures (Kagan, 1997). In terms of substantive law, the political cultures of most Western European nations strongly endorse the values of social solidarity embodied in the legal guarantees of the welfare state and employee security. For all its emphasis on economic efficiency, policy statements concerning ‘the European Social Model’ emerging from the European Commission and its bureaucracy repeatedly have emphasised preservation of the values of the ‘social market economy’ (European Commission, 2005; Diamontopoulou, 2001)—a model which European member state political parties of the centre-right as well as the left evoke in disparaging the neo-liberal ‘American model’16 as well as American penal law. In terms of legal style, adversarial legalism in the US is animated by scepticism concerning governmental and legal authority—a stance that pervades American legal education and the ‘legal culture’ of lawyers and judges, and that gives value to responsiveness to conflicting parties and legal advocates rather than hierarchical legal authority and normative coherence. Those attitudes are antithetical, however, to the ideals of bureaucratic legalism that undergird most European lawyers’, judges’ and legal scholars’ assumptions about law, legal ordering, regulation and adjudication (Damaska, 1986; Chase, 2005: 67). Virtually every adversarially-tinged proposed legal reform in a European nation must deal with the warning ‘Be careful or we will end up like the United States!’ Consequently, although European countries may well continue to experience higher levels of litigation and more judicial responsiveness to litigants’ claims of legal and human rights, they have not adopted—and are not likely to adopt—methods of litigation and adjudication that closely resemble those of American adversarial legalism. The second major impediment to the spread of American style adversarial legalism, I believe, is the tenacity of the political structures of EU member states—including strong social democratic parties and respected national policy-making and policy-implementing bureaucracies. Although the EU has compelled member states to make certain changes in administrative and legal processes, the member states generally retain considerable discretion in crafting their own ways to implement EU directives, as well

16 According to Ralf Rogowsky (2006), who studies labour market policy in Europe, ‘It might indeed be contended that the success of further integration of the European economy depends on increased attempts to coordinate social protection’ to dampen popular concern about the disruptive effects of intensified competition. See also Offe, 2003.

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as their own ways of implementing domestic policy. In doing so, political party leaders and top bureaucrats in Western European democracies face strong incentives to employ accustomed, predictable methods of policymaking, policy-implementation and dispute resolution rather than the difficult-to-control, less-predictable methods of adversarial legalism. Thus even when rights to challenge governmental administrators are strengthened in European countries, those rights generally have been implemented primarily through administrative courts or specialised, inexpensive tribunals, part of the executive branch (Blankenburg, 1994; Kritzer, 1996; Jost, 1996), not by means of costly, adversarially-structured litigation in courts of general jurisdiction, as is the case in the United States.17 In a related manner, the policy approach of the EU, even while continuing to issue rights-focused, legalistic directives on some subjects, has adopted non-legalistic, ‘soft law’ approaches to influencing member state policies in cutting edge policy areas such as fiscal coordination and the ‘open method of coordination’ concerning labour market and social welfare policy (Ashiagbor, 2005, 2001; Trubek and Mosher, 2003). This approach reflects the deep ambivalence of European member state political and legal elites, and perhaps elements of the EU leadership as well, about Americanstyle conflation of policy-making with prescriptive court-enforceable ‘hard law’. Lacking the direct electoral legitimacy of the US federal government and its taxation and fiscal power over American state governments, the EU’s relationship with member states is likely to remain more cooperationseeking and its directives less prescriptive—which in turn limits the power of courts to control how member state bureaucracies interpret and implement EU policy.

Six Entrenched Differences If I am correct about the significance of European legal cultures and traditional governing structures as impediments to convergence, many salient features of the American way of law almost surely will remain quite unattractive to national political and legal elites in Europe. I will try to support that speculation by discussing six such ‘entrenched differences’.

17 Illustrating the difference, Welles and Engel, 2000 show that a multinational corporation spent $15 million on legal services to obtain governmental approval for a municipal solid waste landfill in California, including three extended lawsuits. In a similar controversy in England, by contrast, legal appeals were directed to an administrative forum, and the company’s legal costs were $137,000. And in The Netherlands, despite having undergone two administrative appeals, the company didn’t have to retain lawyers at all and spent ‘less than $50,000’ on legal services.

56 Robert A Kagan The Political Nature and Remedial Powers of American Judiciaries In many European countries, the rise of constitutional courts, along with the ECJ and the ECtHR, has made it easier for interests who are frustrated by the mechanisms of democratic politics to challenge in court the constitutionality of the policies and laws they dislike (Stone Sweet, 2002). Yet the range and intensity of the political use of litigation is institutionalised in the United States in ways that make it qualitatively different than in Western European countries, as well as quantitatively much more frequent and varied. In contrast to the EU, for example, the US central government has its own nationwide network of lower federal courts, ready to hear cases arguing that state and local (as well as federal) governmental bodies have failed to comply with federal law or with court rulings concerning individual Constitutional rights. In addition, American lower courts—those most accessible to advocacy organisations—are uniquely powerful. Employing their equity powers, US District Court judges have often ordered state governments, highway construction agencies, local school districts, jails and prison systems, police departments and forestry agencies, among others, to undertake specific (and often costly) reforms or mitigation projects, under continuing judicial supervision (Melnick, 2004; Sandler and Schoenbrod, 2003).18 Further, the political character of American state and federal judiciaries invites policy-oriented litigation. Judges in the United States are recruited on the basis of their prior partisan political experience and commitments, rather than through European-style meritocratic examination systems and apprenticeships.19 In difficult cases, Democratic judges in the US often decide differently to Republican judges (Gottschall, 1986: 49–54; Sisk et al, 1998). Hence, compared to Western Europe, the United States has a far larger network of politically-motivated ‘cause lawyers’, organised to influence public policy, public administration and corporate behaviour through litigation. Political interest groups openly lobby the President to appoint politically-sympathetic federal judges, aggressively lobby Senators to block the appointment of nominees whom they dislike and spend very large sums

18 In the early 1990s, the municipal government of Washington, DC was operating under at least seven separate judicially-supervised decrees, requiring city officials to meet higher standards in food subsidy programmes, jails, public mental health services, public housing, institutions for the mentally ill, juvenile detention facilities, and public schools (Plotz, 1994). Prisons in 41 states have operated under court orders to improve conditions (Melnick, 2004; Feeley and Rubin, 1998: 13). In 2000, more than 30 state welfare agencies were operating under court orders demanding improvements (Sandler and Schoenbrod, 2003: 122). In Kansas City, Missouri, a US District Court judge, in order to increase racial balance and equal educational opportunity, ordered the construction of 17 new schools and the renovation of 55 others, which was estimated to cost over $1.5 billion (Wise and O’Leary, 2003). 19 I recognise that there are exceptions in Europe. Even the US has not seen anything comparable to Italian prime minister Berlusconi’s systematic efforts to neutralise and reshape the Italian judiciary (Stille, 2006).

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on partisan elections for state supreme court positions. Although political considerations have been increasing somewhat in the selection of judges for the ECJ and some powerful member state constitutional courts (Guarneri and Pederzoli, 2002; Bohlander, 2005), Western European countries are not likely to abandon their professional modes of judicial selection and training for an American-style, overtly political, appointment or election process. 2. The Pervasiveness of Adversarial Legalism in the Regulatory Process The EU and its member states have been using formal rules to make the regulatory process more transparent, but large US-European differences persist. EU regulatory policy-making in Brussels concentrates on structuring information-sharing and consultation between agency experts, affected interests and member states, while consciously excluding US-style judicial challenges (Strauss, 2006: 34). Regulatory policymaking at the member state level, rooted in a different conception of bureaucratic autonomy and professionalism, is even less likely to mimic the frequency and intensity of court scrutiny of regulatory decision-making in the US.20 Large differences also persist in regulatory implementation style. According to ten case studies in the late 1990s, multinational corporate officials experience American regulation as more prescriptive, complex, confusing, punitive towards violations, heavily-lawyered and costly to comply with than parallel regulatory regimes in Western European nations, which tend to rely more on informal official guidelines and cooperative enforcement styles (Kagan, 2000). Moreover, European nations have moved only hesitantly toward the American emphasis on private litigation by ‘private attorney generals’ to enforce regulatory law.21 European moves in that direction are muted not only by the more unitary nature of European states but also by path-dependency, which mobilises political constituencies who fear the changes implied by private enforcement. For example, John Cioffi (2002) notes that Germany appropriated some elements of the American approach to securities regulation, but declined to foster US-style shareholder class actions to enforce regulatory norms, partly because both the German labour movement and political and economic elites feared it would undermine co-determination

20 For citations and case studies illustrating court-agency conflict (and dialogue) in the US, see Kagan, 2004: 18. 21 Federal civil rights legislation, for example, gives rise each year to thousands of civil lawsuits against local police departments, local jails, and State prisons for violating individual constitutional rights. Citing the desire to give lawyers more incentives to bring lawsuits, Congress in 1991 enhanced monetary penalties attached to violations of anti-discrimination regulations by employers (Farhang, 2005). The Americans with Disabilities Act 1990, by giving disabled people rights to gain access to governmental services free of architectural barriers, stimulated scores of lawsuits and judicial orders requiring city after city to install costly curb ramps on street corners (Sandler and Schoenbrod, 2003: 36–37).

58 Robert A Kagan (labour participation) on German corporate boards of directors. Similarly, in 2000, the EU issued the Equal Treatment in Employment and Occupation Directive, the so-called ‘Horizontal Directive’, which requires member States to enact legally enforceable rights against discrimination based on gender, age, religion, sexual orientation and disability, as well as a separate directive against racial discrimination, which requires member states to provide strong legal sanctions for violations.22 Yet according to Tom Burke (2004: 159, 170), author of a comparative analysis of disability rights: It seems unlikely … that the Horizontal Directive … will lead Europe to Americanstyle disability rights litigation. That is because most European nations thus far lack the legal machinery required to vigorously implement litigious policies. Contingency fees, large verdicts, a corps of aggressive plaintiff lawyers—are in short supply in Europe.

3. The Hyperactive American Tort Law System During the last two decades, a number of American states have imposed some limits on tort case damage awards,23 and changes in tort law in Ireland, the UK and France, for example, have led to sharp increases in claims and liability insurance costs (Fleming, 2005). Nevertheless, Blankenburg (2001: 21–22) notes, the cross-Atlantic differences remain large: even if there is much discussion about a few extraordinary liability claims also being launched in Europe, most empirical studies show that the volume of cases is much lower than in the U.S.A. Personal injury damages in Europe are largely covered by insurance systems and most jurisdictions rely on standard tables for tort damages …. In general, awards are lower than in America …

Recent analyses indicate that in the United States verdicts in personal injury cases provide much larger awards for pain and suffering—and far less predictable awards—than similar tort cases in Western Europe (Sugarman, 2006: 418; Sebok, 2006: 392). Higher money damages, together with the widespread use of contingency fees and aggregation of similar cases in large class actions (both of which still are disallowed or uncommon in Western Europe) make the practice of tort law in the US much more lucrative for plaintiffs’ attorneys, much more fearsome for business firms, medical providers and governmental bodies, while remaining an erratic, very

22 The race directive states that ‘The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive’ (Council Directive 2000/43/EC). 23 Overall, the conservative campaign against the tort law system has only ‘nibbled at the edges’ of the legal rules and institutional arrangements that make that system uniquely costly and threatening (Kagan, 2006).

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inefficient and often inequitable way of compensating injured people (Kagan, 2001: 135–44). It is an unlikely model for European governments, business interests, or legal scholars to seek to emulate. 4. The More Limited Rights to Social Provision in the United States Despite the pressures of global economic competition, there are few signs that Western European governments have moved or will move substantially toward the less generous, more privatised, more voluntary US model of social provision and employee protection.24 Although there has been much talk in Europe of a new ‘age of austerity’ in the welfare state, most academic analysts have characterised recent changes in entitlement laws as efficiency-enhancing reforms, rather than as massive retrenchment or movement toward neoliberalism and the privatised American version of the welfare state (Pierson (ed), 2001; Levy, 2006).25 Most explanations to the preservation of worker rights and welfare entitlements emphasise the political strength of the broad constituencies that benefit from and support existing protections (Myles and Pierson, 2001). Indeed, the most significant welfare state change in the last decade has been the shrinkage of the protections in the United States. Federal welfare reform legislation passed in 1996 dramatically limited benefits for poor families. American business firms, faced with escalating health care costs, have sharply contracted employer-paid health insurance for workers and reduced the certainty of voluntary, employer-provided pension guarantees (Hacker, 2002; Freudenheim, 2005). If anything, therefore, the gulf between Western Europe and the US in legally-guaranteed health, welfare and employee benefits has widened (Adema, 2005: 10; Jaumotte, 2003; OECD, 2003a). 5. The Less Demanding American Tax Laws Since 2000, according to the OECD (2003b), 15 OECD countries reduced their top rates for personal income taxes, and 12 lowered them for

24 Jacob Hacker (2002) showed that in 1995, public social welfare expenditures in the US equalled only 17.1% of GDP (as compared to 35%–37% in Scandinavian countries, and 25%-30% in Germany, The Netherlands, Italy and the UK). However, private expenditures for the same purposes (often subsidised through tax deductions) were much higher in the US, amounting to 8.3% of GDP, which narrows the US-Western European difference in total social provision. 25 These conclusions are reinforced by a study of labour market regimes in several Western European countries (Wood, 2001) and comparative studies of health care expenditures (Giamo, 2001) and pension reform (Myles and Pierson, 2001). Among OECD countries, average gross public social expenditure declined from a peak of 23% of GDP in 1993 to about 21.5% of GDP in 2001, with all the decline accounted for by non-health expenditures. (OECD Factbook 2005).

60 Robert A Kagan corporations. Does this mean that the traditional US-European differences in tax law have narrowed significantly? Not very much, partly because of the strong political pressures in European nations to maintain social entitlements, and partly because, since 2001, a conservative American president and Congress have aggressively cut federal income tax rates further. According to 2002 figures, tax revenues in the United States, including compulsory social security contributions, equalled about 29 per cent of GDP. By contrast, in Sweden, Denmark, Finland, Denmark, The Netherlands, Belgium, France and Italy, tax revenues were 40 per cent of GDP or more; only Ireland (the most economically dynamic Western European country) was at the US level. 6. Punitiveness and Adversarial Legalism in American Criminal Justice Reflecting the social disruptions stemming from immigration, competitive economic change and de-industrialisation, crime rates have increased in many European countries in the last ten years. As fear of crime has grown (Downes, 2001: 60), crime has become a much more salient political issue in many European countries—making Europe more like the United States in this respect too. Imprisonment rates in the UK and The Netherlands have increased significantly (Greenberg, 2001: 74). Nevertheless, the US remains in a league of its own in terms of the severity of penal policy, in the harshness of cultural attitudes toward punishment (Whitman, 2003), and in the extent to which penal policymaking is open to populist political pressures to be ‘tough on crime’ (Kagan, 2001: 69–70, 80-81). The death penalty remains legal in a majority of American States and executions remain common in a number of southern States (Zimring, 2003). In view of Europeans’ ever-increasing criticism of the US for retaining capital punishment, it is less likely than ever that European legal systems will become ‘Americanised’ in that regard. Similarly, movement in the UK and The Netherlands toward tougher sentencing are only baby steps toward the severity of American criminal sentences, particularly (but not only) for non-violent crimes and drug offences (Downes, 2001: 65–66). Thus although crime rates in the US now are generally lower than in many European countries (according to a 1999 UN household victimisation study), in 2000 prisons in the US held 468 adults per 100,000 in population.26 At the low end for Western Europe, the imprisonment rate in Norway, The Netherlands, Denmark, Switzerland, Finland and Italy remained at less than 50 per 100,000; at the high end, the rate was

26 There are great inter-regional variations in imprisonment rates in the US, with much higher rates in southern states and much lower (but still higher than European) rates in northern states such as Maine.

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about 108 in Spain and about 93 in England and Portugal (OECD, 2005b). And political support for harsh criminal penalties in the US remains greater: although burglary rates, according to the 1999 victimisation studies, were higher in several Western European countries (England, Denmark and Belgium) than in the US (with The Netherlands about the same), American survey respondents were most likely to recommend imprisonment (rather than community service) for a hypothetical 21 year old recidivist burglar and they recommended significantly longer prison terms than respondents from other Western European countries. Crime increases in Europe have generated new pressures on traditional methods of criminal law enforcement, police supervision and adjudication, and there have been arguments for introducing more adversariness into the continental criminal process. But adversariness can be increased without mimicking American adversarial legalism. It is hard to imagine that European nations will be attracted to many key elements of the American model of criminal justice. For example, in contrast to the national prosecutorial bureaucracies in Continental Europe, prosecutors in the US are selected through local political processes, and individual assistant prosecutors receive less professional training and close supervision (Frase, 1990; Downes, 1988: 15; Johnson, 1998). The costs and cumbersome nature of the highly adversarial American jury trial has made it unworkable as an everyday mode of adjudication (Alschuler, 1986). Based on a study of the introduction of plea bargaining in Germany, Italy and France (as well as Argentina), Maximo Langer (2004) found: The influence of American plea bargaining in all four of these jurisdictions is undeniable. Despite this influence, however, the importation of plea bargaining … is not likely to reproduce an American model of criminal procedure. Each of these jurisdictions has adopted a form of plea bargaining that contains differences— even substantial differences—from the American model.

One reason, Langer suggests, is that the ‘structural differences between the American adversarial conception of criminal procedure and the continental European and Latin American inquisitorial conception of criminal procedure are so deep’. Another is that: In each of these civil law jurisdictions, some legal actors have distrusted or resisted the adoption of plea bargaining … either because reforms have threatened their traditional powers … or because of their differing legal culture.

V. CONCLUSION

Traditional European legal folkways are far from unchangeable. The impediments discussed in the previous section are not always insurmountable.

62 Robert A Kagan In the last few decades, litigation and judicial decisions have become more prominent features of governance, regulation, policy development and dispute resolution in the legal systems of Western European countries. Global economic competition, migration, fiscal pressures and the challenges of coordinating law and policy throughout the EU have encouraged those trends and probably will continue do so. Law and legal practice in Europe may well come closer to resembling American approaches to corporate contracting, financial regulation and controls on private pension funds— partly because they are well-adapted to a highly competitive, privatised economy. European NGOs, plugged into the Internet and American news, will continue to lobby for some of the individual legal rights that American adversarial legalism is so prolific at inventing—such as rights against spousal abuse, sexual harassment and more—although European legal systems are more likely to mirror American norms than adversarial American enforcement methods. On the other hand, efficiency-oriented changes in substantive law and growth in litigation and judicialisation in Europe, do not imply convergence with the American way of law. Imagine that the degree to which (a) a nation’s substantive law is congruent with neo-liberal policy values, and (b) the degree to which its legal style resembles American adversarial legalism both vary between ‘high’ and ‘low’, as in Figure 1: At t1 (eg 1970–1980), the Figure suggests, Nation X (England, Germany, Italy, etc.), was much ‘lower’ than the US with respect to neo-liberal substantive law and judicial policy making (as well as adversarial legalism). Even if between t1 and t2, Nation X adopted more ‘neo-liberal’ substantive law and its judiciary became more active in policy-making (or even adopted some elements of adversarial legalism), as indicated in Figure 1, there would still be a very substantial gap between the two countries. In reality, we have no aggregate measures of where countries as a whole stand on this dimension. But my sense is that the gaps between t1 and t2 displayed on Figure 1 roughly capture both the trend over the last decade and the relative position of the US and Western Europe.27 |----------⎮--------------⎮----------------------------------------⎮----------⏐ Nation X t1 Nation X t2 Low

US High

Fig. 1: Hypothesised Variation in Neoliberal Policy and Adversarial Legalism.

27 The overall thrust of articles by Dan Kelemen (2004, 2006) is that Nation X t2 should now, or in the future, be shifted a centimetre or so to the right.

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Conceivably, my time horizon has been too limited. When De Tocqueville visited the United States in the late 1820s, he noted the prominence of courts and lawyers in the governmental process, but neither he nor his American contemporaries could have envisaged the range and scope of adversarial legalism that pervades American governance and social life in 2005. Similarly, one might wonder whether the developments in European law and practice discussed above, even if they have moved European ways of law only to point t2 in Figure 1, are still in their infancy. The new legal structures are in place. They generate incentives for expansion in the direction of adversarial legalism. And external factors—continuing economic and social pressures and political pressures for legal harmonisation and individual rights—could well continue to fuel those incentives, while battering down European levels of taxation, social provision and labour entitlements. So it might be argued that in 50 years, or 75—only a blink of an eye in the history of European law—real convergence on some new Euro-American way of law might occur. I would be foolish to assert that that definitely will not happen and indeed it probably will happen for some areas of law and governance. But American states—in Tocqueville’s time and in 1960 (at the brink of the real explosion of American adversarial legalism)—had very different governmental structures and legal cultures than European countries have today. Adversarial legalism and resistance to ‘big government’ fit comfortably with those structures and cultures. They do not fit comfortably with the governmental structures and legal cultures of contemporary European states. So my bet is that most of the entrenched differences between American and European ways of law discussed in this chapter will persist for many decades to come. REFERENCES Abraham, K and Houseman, S (1993) Job Security in America: Lessons from Germany. (Washington, DC, Brookings Institution). Adema, W (2005) ‘Babies and Bosses’ OECD Observer 248, 11. Alexander, JC (1991) ‘Do the Merits Really Matter? A Study of Settlements in Securities Class Actions’ 43 Stanford Law Review 497. Alschuler, AN (1986) ‘Mediation with a Mugger: The Shortage of Adjudicative Services and the Need for a Two-Tier System in Civil Cases’99 Harvard Law Review 1808. Ashiagbor, D (2005) The European Employment Strategy: Labour Market Regulation and New Governance (Oxford, Oxford University Press). —— (2001) ‘EMU and the Shift in the European Labour Law Agenda’ 7 European Law Journal 311. Atiyah, PS and Summers, RS (1987) Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions (Oxford, Clarendon Press).

64 Robert A Kagan ATRA (2004) ATRA Tort Reform Record Badaracco, JL (1985) Loading The Dice: A Five Country Study of Vinyl Chloride Regulation (Boston, MA, Harvard Business School Press). Black, DJ (1976) The Behavior of Law (New York, NY, Academic Press). Blankenburg, E (2001) Indicators of Growth of the Systems of Justice in Western Europe of the 1990s: The Legal Profession, Courts, Litigation and Budgets Working Paper (Washington, DC, The World Bank) —— (1994) ‘The Infrastructure for Avoiding Civil Litigation: Comparing Cultures of Legal Behavior in the Netherlands and West Germany’ 28 Law & Soc Rev 789. Bogart, WA (2002) Consequences: The Impact of Law and Its Complexity (Toronto, ON, University of Toronto Press). Bohlander, M (2005) ‘Judicial Recruitment and Promotion in Germany—An Empirical Study’ Paper presented at First European Socio-Legal Conference, International Institute for Sociology of Law, Oñati, Spain, July 6–8. Braithwaite, J (1993) ‘The Nursing Home Industry’ in Beyond the Law: Crime in Complex Organizations in M Tonry and AJ Reiss Jr (eds), (Chicago, Ill, University of Chicago Press). Brickman, R, Jasanoff, S and Ilgen, T (1985) Controlling Chemicals: The Politics of Regulation in Europe and the United States. (Ithaca, NY, Cornell University Press). Bumiller, E (2005) ‘War Rooms (and Chests) Ready for a Supreme Court Vacancy’ New York Times, June 20, A1. Burke, T (2004) ‘The European Union and the Diffusion of Disability Rights’ in M Levin and M Shapiro (eds), Transatlantic Policymaking in an Age of Austerity: Diversity and Drift, (Washington, DC, Georgetown University Press). Carroll, S et al (2002) Asbestos Litigation Costs and Compensation: An Interim Report (Santa Monica, CA, RAND Institute for Civil Justice). Chase, OG (2005) Law, Culture, and Ritual: Disputing Systems in Cross-Cultural Context (New York, NY, New York University Press). Cichowski, R (1998) ‘Integrating the Environment: the European Court and the Construction of Supranational Policy’ 3 Journal of European Public Policy 405. Cioffi, JW (2000) ‘Governing Globalization? The State, Law and Structural Change in Corporate Governance’ 27 Journal of Law & Society 600. —— (2002) ‘Restructuring ‘Germany Inc.’: The Politics of Company and Takeover Law Reform in Germany and the European Union’ 24 Law & Policy 402. Coffee, Jr, JC (1991) ‘Liquidity Versus Control: The Institutional Investor as Corporate Monitor’ 91 Columbia Law Review 1277. Damaska, M (1986) The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (New Haven, CT, Yale University Press). Diamontopoulou, A (2001) The European Social Model: Promoting Economic and Social Progress. Speech of the Commissioner responsible for Employment and Social Affairs, Talin, 19 March. http://europa.eu.int/comm/dgs/employment_ social/ speeches/010319ad.pdf. Downes, D (2001) ‘The Macho Penal Economy: Mass Incarceration in the United States—A European Perspective’ in D Garland (ed), Mass Imprisonment: Social Causes and Consequences (London, UK, Sage Publications).

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—— (1988) Contrasts in Tolerance: Post-War Penal Policy in the Netherlands and England and Wales (Oxford, UK, Clarendon Press). Economist, The (1997) Thwack the Law. 25 January, 46. —— (1996) Pensions, 30 November, 105. —— (1996) Crime in America, 8 June, 25. —— (1995) Fighting Crime: The Case for Emptier Prison, 9 December, 25. —— (1994) Taxation, 24 September, 112. European Commission (2005) European Values in the Globalized World. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. COM (2005) 525. Farhang, S (2005) Congressional Mobilization of Private Litigants: The Case of the Civil Rights Act of 1991. Paper presented at the Western Political Science Association Conference, Oakland, CA, March 2005. Fleming, C (2005) ‘Ireland Curbs ‘American Disease’—Personal Injury Lawsuits’, Wall Street Journal, Jan 25, B1, 9. Frase, RS (1990) ‘Comparative Criminal Justice as a Guide to American Law Reform: How Do the French Do It. How Can We Find Out, and Why Should We Care?’ 78 California Law Review 545. Frase, R and Weigend, T (1995) ‘German Criminal Justice’ 18 Boston College International and Comparative Law Review 317. Freeman, R and Katz, L (1994) ‘How Labor Fares in Advanced Economies’ in Working Under Different Rules, R Freeman (ed.) (New York, NY, Russell Sage Foundation). Freudenheim, M (2005) Fewer Employers Totally Cover Health Premiums New York Times, March 23, pp C1–2. Galanter, M (1988) ‘The Life and Times of the Big Six; or, The Federal Courts Since the Good Old Days’ Wisconsin Law Review 921. Garth, B and Dezalay, Y (1995) ‘Merchants of Law as Moral Entrepreneurs: Constructing International Justice from the Competition for Transnational Business Disputes’ 29 Law and Society Review 64. Giaimo, S (2001) ‘Who Pays for Health Care Reform?’ in P Pierson (ed), The New Politics of the Welfare State (Oxford, UK, Oxford University Press). Ginsberg, B and Shefter, M (1990) Politics by Other Means (New York, Basic Books). Gornick, J, Meyers, M and Ross, K (1997) ‘Supporting the Employment of Mothers: Policy Variation Across Fourteen Welfare States’ 7 Journal of European Social Policy 126. Gottschall, J (1986) ‘Reagan’s Appointments to the U.S. Courts of Appeals’ Judicature June/ July, 54. Greenberg, D (2001) ‘Novus Ordo Saeculorum? A Commentary on Downes, and on Beckett and Western’ in D Garland (ed), Mass Imprisonment: Social Causes and Consequences (London, UK, Sage Publications). Greve, MS (1989) ‘The Non-Reformation of Administrative Law: Standing to Sue and Public Interest Litigation in West German Environmental Law’ 22 Cornell International Law Journal 197. Guarneri, C and Pederzoli, P (2002) From Democracy to Juristocracy? The Power of Judges: A Comparative Study of Courts and Democracy (Oxford, UK, Oxford University Press).

66 Robert A Kagan Gunningham, N, Thornton, D and Kagan, RA (2003) Shades of Green: Business, Regulation and Environment (Stanford, CA, Stanford University Press). Hacker, J (2002) The Divided Welfare State: The Battle Over Public and Private Social Benefits in the United States (New York, NY, Cambridge University Press). —— (2004) ‘Privatizing Risk without Privatizing the Welfare State: The Hidden Politics of Social Policy Retrenchment in the United States’ 98 American Political Science Review 260. Hamitt, J, Wiener, J, Swedlow, B, Kell, D and Zhou, Z (2005) ‘Precautionary Regulation in Europe and the United States: A Quantitative Comparison’ 25 Risk Analysis 1215–1228. Hughes, G (1984) ‘English Criminal Justice: Is it Better Than Ours?’ 26 Arizona Law Review 507. Jacob, H, Blankenburg, E, Kritzer, H, Province, DM and Sanders, J (1996) Courts, Law and Politics in Comparative Perspective (New Haven, CT, Yale University Press). Jaumotte, F (2003) Labour Force Participation: Past Trends and Main Determinants in OED Countries. OECD Economics Department Working Paper No 376. Johnson, D (1998) ‘The Organization of Prosecution and the Possibility of Order’ 32 Law & Society Review 247. Jost, TS (1998) ‘Health Care Rationing in the Courts: A Comparative Study’ 21 Hastings International and Comparative Law Review 639. Kagan, RA (2006) ‘How Much Do Conservative Tort Tales Matter? Essay on William Haltom & Michael McCann, Distorting the Law: Politics, Media, and the Litigation Crisis’ 31 Law & Social Inquiry 711–37. —— (2004) ‘American Courts and the Policy Dialogue: The Role of Adversarial Legalism’ in MC Miller and J Barnes (eds), Making Policy, Making Law: An Interbranch Perspective (Washington, DC, Georgetown University Press). —— (2001) Adversarial Legalism: The American Way of Law (Cambridge, MA, Harvard University Press). —— (2000) ‘The Consequences of Adversarial Legalism’ in RA Kagan and L Axelrad, (eds), Regulatory Encounters: Multinational Corporations and American Adversarial Legalism (Berkeley, CA, University of California Press). —— (1997) ‘Should Europe Worry About Adversarial Legalism?’ 17 Oxford J Legal Studies 165. —— (1990) ‘How Much Does Law Matter? Labor Law, Competition, and Waterfront Labor Relations in Rotterdam and U.S. Ports’ 24 Law & Society Review 35. Kagan, RA and Axelrad, L (2000) Regulatory Encounters: Multinational Corporations and American Adversarial Legalism (Berkeley, CA, University of California Press). Keleman, RD (2004) ‘The Globalization of American Law’ (with Eric Sibbitt) 58 International Organization 106. —— (2006) ‘Suing for Europe: Adversarial Legalism and European Governance’ Comparative Political Studies, forthcoming. —— (2003) ‘The EU Rights Revolution: Adversarial Legalism and European Integration’ in T Börzel and R Cichowski. (eds), The State of the European Union: Law, Politics, and Society (Oxford, UK, Oxford University Press).

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Krasner, S (1978) Defending the National Interest (Princeton, NJ, Princeton University Press). Kritzer, H (1996) ‘Courts, Justice, and Politics in England’ in H Jacob et al (eds), Courts, Law and Politics in Comparative Perspective (New Haven, CT, Yale University Press). Langer, M (2004) ‘From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure’ 45 Harvard International Law Journal 1. Lasser, M (2005) ‘The European Pasteurization of French Law’ 90 Cornell Law Review 995. Levy, J (2006) Between Neo-Liberalism and No Liberalism: Progressive Approaches to Economic Liberalization in Western Europe, working paper, Department of Political Science, University of California, Berkeley. Lipset, SM (1996) American Exceptionalism: A Double-Edged Sword (New York, NY, WW Norton). Lynch, J (1987) Imprisonment in Four Countries. Bureau of Justice Statistics Special Report (Washington, DC, US Department of Justice). Maass, A (1987) ‘Public Policy by Prosecution’ The Public Interest Fall, 107–130. Malleson, K (2006) Judicial Reform in the U.K.: The Emergence of the Third Branch of Government. Paper presented at Conference on Reinventing Britain. Institute of Governmental Studies. University of California, Berkeley, April 24, 2006. Majone, G (1993) ‘The European Community Between Social Policy and Social Regulation’ Journal of Common Market Studies 31. McFate, K, Lawson, R and William JW, (eds) (1995) Poverty, Inequality, and the Future of Social Policy: Western States in the New World Order (New York, NY, Russell Sage Foundation). McDonald, A and Hazell, R (2006) What Happened Next: Constitutional Reform Under New Labour. Paper presented at Conference on Reinventing Britain. Institute of Governmental Studies. University of California, Berkeley, 24 April 2006. Melnick, RS (2004) ‘Courts and Agencies’ in MC Miller and J Barnes (eds), Making Policy, Making Law: An Interbranch Perspective (Washington, DC, Georgetown University Press). Moran, M (1991) The Politics of the Financial Services Revolution: The USA, UK and Japan (New York, NY, St Martins Press). Myles, J and Pierson, P (2001) ‘The Comparative Political Economy of Pension Reform’ in P. Pierson (ed), The New Politics of the Welfare State (Oxford, UK, Oxford University Press). Nelson, W (1990) ‘Contract Litigation and the Elite Bar in New York City, 1960– 1980’ 39 Emory Law Review 413. OECD (2005a) When Governments Go Shopping. OECD Observer. November 14–15. —— (2005b) OECD Factbook 2005. —— (2003a) Health at a Glance: OECD Indicators 2003. —— (2003b) Taxes Ease. OECD Observer. Dec. 2003.

68 Robert A Kagan Offe, C (2003) ‘The European Model of “Social” Capitalism: Can it Survive European Integration?’ 1 Journal of Political Philosophy 437. Pierson, P, (ed) (2001) The New Politics of the Welfare State (Oxford, UK, Oxford University Press). Pitt, H and Hardison, D (1992) ‘Games Without Frontiers: Trends in International Response to Insider Trading’ 55 Law & Contemporary Problem 199. Plotz, D (1994) ‘Guilty! Guilty! Guilty!’ Washington City Paper, 25 March, 31. Rasmussen, H (1986) On Law and Policy in the European Court of Justice (Boston, Nijhoff). Roe, M (1991) ‘A Political Theory of American Corporate Finance’ 91 Columbia Law Review 10. Rogers, J (1990) ‘Divide and Conquer: Further Reflections on the Distinctive Character of American Labor Laws’ Wisconsin Law Review 1. Rogowski, R (2006) Reflexive Coordination: Thoughts on the Social Model of the European Union. Paper presented at the Emile Noel Forum, New York University Law School, 1 November 2006. Sanders, J (2006) ‘Why Do Proposals Designed to Control Variability in General Damages (Generally) Fall on Deaf Ears (and Why This Is Too Bad)’ 55 DePaul L Rev 489. Sandler, R and Schoenbrod, D (2003) Democracy by Decree: What Happens When Courts Run Government (New Haven, CT, Yale University Press). Schwartz, G (1991) Product Liability and Medical Malpractice in Comparative Context in P Huber and R Litan (eds), The Liability Maze (Washington, DC, Brookings Institute). Sebok, A (2006) ‘Translating the Immeasurable: Thinking About Pain and Suffering Comparatively’ 55 DePaul L Rev 379. Selke, W (1991) ‘A Comparison of Punishment Systems in Denmark and the United States’ 15 International Journal of Comparative and Applied Criminal Justice 227. Sellers, JM (1995) ‘Litigation as a Local Political Resource: Courts in Controversies over Land Use in France, Germany, and the United States’ 29 Law & Society Review 516. Shapiro, M (1993) ‘The Globalization of Law’ 1 Indiana Journal of Global Legal Studies 37. Simmons, B (2004) ‘The International Politics of Harmonization: The Case of Capital Market Regulation’ in D Vogel and RA Kagan (eds), Dynamics of Regulatory Change: How Globalization Affects National Regulatory Policies, University of California Press/University of California International and Area Studies, CA. Sisk, G, Heise, M and Morriss, A (1998) ‘Charting the Influences on the Judicial Mind; An Empirical Study of Judicial Reasoning’ 73 New York University Law Review 1377. Skowronek, S (1982) Building a New American State: The Expansion of National Administrative Capacities, 1877–1920. (New York, NY, Cambridge University Press). Steinmo, S (1993) ‘Taxation and Democracy: Swedish, British and American Approaches to Financing the Modern State’ (New Haven, CT, Yale University Press).

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Sterret, S (1999) ‘Judicial Review in England’ in S Kenney, W Reisinger and J Reitz (eds), Constitutional Dialogues in Comparative Perspective (London, UK, MacMillan Press and New York, NY, St. Martin’s Press). Stille, A (2006) ‘The Berlusconi Show’ New York Review of Books No 9, 53. Stone Sweet, A, (2000) Governing With Judges: Constitutional Politics in Europe (Oxford, UK, Oxford University Press). —— (2002) ‘Constitutional Politics in France and Germany’ in M Shapiro and A Stone Sweet (eds), On Law, Politics and Judicialization (Oxford, UK, Oxford University Press). Stone Sweet, A and Brunell, T (2002) ‘The European Court and Integration’ in M Shapiro and A Stone Sweet (eds), On Law, Politics and Judicialization (Oxford, UK, Oxford University Press). Strauss, P (2006) Rulemaking in the Ages of Globalization and Information: What America Can Learn From Europe, and Vice Versa Columbia Journal of European Law (forthcoming). Sugarman, SD (2006) ‘A Comparative Look at Pain and Suffering Awards. Presentation at Clifford Symposium on Pain and Suffering’ 55 DePaul L Rev 399. Sunkin, M (1994) ‘Judicialization of Politics in the United Kingdom’ 15 International Political Science Review 125. Tait, N and Sherwood, B (2005) ‘Europe Gets Taste of Class Actions’ Financial Times, 20 June 2005. Trubek, D and J Mosher (2003) ‘New Governance, Employment Policy, and the European Social Model’ in Zeitlin, J and D Trubek (eds) Governing Work and Welfare in a New Economy: European and American Experiments (Oxford, UK, Oxford University Press). Vandermeersch, D (1987) ‘The Single European Act and the Environmental Policy of the EEC’ 12 European Law Review 407. Vogel, D (2004) ‘The Politics of Risk Regulation in Europe and the United States’ 3 Yearbook of European Environmental Law 42. —— (1995) Trading Up: Consumer and Environmental Regulation in a Global Economy (Cambridge, MA, Harvard University Press). —— (1986) National Styles of Regulation: Environmental Policy in Great Britain and the United States (Ithaca, NY, Cornell University Press). Vogel, S (1996) Freer Markets, More Rules: Regulatory Reform in Advanced Industrial Countries (Ithaca, NY, Cornell University Press). Weiler, J (1991) ‘The Transformation of Europe’ 100 Yale Law Journal 2403. Welles, H and Engel, K (2000) ‘A Comparative Study of Solid Waste Landfill Regulation: Case Studies from the United States, the United Kingdom, and the Netherlands’ in RA Kagan and L Axelrad (eds), Regulatory Encounters: Multinational Corporations and American Adversarial Legalism (Berkeley, CA, University of California Press). Whitman, JQ (2003) Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe (New Haven, CT, Yale University Press). Wiegand, W (1996) ‘Americanization of Law—Reception or Convergence’ in L Friedman and H Scheiber (eds), Legal Culture and the Legal Profession (Westport, MA, Westwood Press).

70 Robert A Kagan Wilensky, H (2002) Rich Democracies (Berkeley, CA, University of California Press). Wise, C and O’Leary, R (2003) ‘Breaking Up Is Hard to Do: The Dissolution of Judicial Supervision of Public Services’ 63 Public Administration Review 177–91. Wood, S (2001) ‘Labour Market Regimes Under Threat: Sources of Continuity in Germany, Britain and Sweden’ in P Pierson (ed), The New Politics of the Welfare State (Oxford, UK, Oxford University Press). Zimring, F (2003) The Contradictions of American Capital Punishment (Oxford, UK, Oxford University Press). Zimring, F and Hawkins, G (1997) Crime is Not the Problem: Lethal Violence in America (Oxford, UK, Oxford University Press).

3 La place paradoxale de la culture juridique Américaine dans la mondialisation ANTOINE GARAPON

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lus personne ne songe à contester aujourd’hui l’influence du droit américain sur le monde. Cette expansion, comme en son temps celle du droit romain ou du Code civil français, en flatte certains et en irrite d’autres—surtout ceux que cette expansion semble menacer, comme les juristes français. Cette fierté—ou ce ressentiment—brouillent nombre de discours sur la mondialisation juridique. C’est pourquoi nous voudrions échapper ici à un débat qui nous semble piégé et, somme toute, assez stérile—impérialisme versus exceptionnalisme américain—en le décalant pour le poser en termes de culture. Toute entreprise expansionniste—impériale, coloniale ou autre—est assise en effet sur une prétention à l’universalité qui prend à chaque fois des formes spécifiques et expriment un génie propre. Comment saisir l’originalité de l’influence qu’exerce aujourd’hui la culture juridique américaine? La thèse que nous proposons est la suivante: ce qui fait la force et l’originalité de celle-ci par rapport aux autres cultures qui se sont répandues historiquement (française, anglaise, ottomane, soviétique voire romaine), c’est que cette culture, en raison de son caractère démocratique, exporte une tension plus qu’une force, un rapport au droit autant qu’un pouvoir. Nous tenterons de cerner cette originalité contemporaine sous la forme de paradoxes centraux qui permettront peut-être de comprendre les chemins inédits que prend la mondialisation juridique aujourd’hui. L’ambition—bien téméraire— d’un tel propos exige des généralisations et des approximations dont nous prions par avance le lecteur de bien nous excuser: elles nous sont apparues indispensables pour décrire un mouvement d’ensemble. I. UNE CULTURE ATYPIQUE QUI SERT DE REFERENCE

La mondialisation juridique est traversée par un premier paradoxe: la culture dominante est en même temps la plus atypique. A la différence des

72 Antoine Garapon autres nations qui ont subordonné le droit à l’Etat, avec un plus ou moins grand degré d’indépendance, le droit américain se caractérise par la méfiance à l’égard de l’instrument qui a été utilisé jusque là par les Etats pour s’administrer, c’est-à-dire un pouvoir central.

A. Une puissance qui se méfie du pouvoir central Un tel décentrement du droit par rapport au pouvoir politique s’explique d’abord par la tradition de common law à laquelle appartiennent les EtatsUnis. Parmi les consensus profonds qui réunissent les juristes de common law, existe une certaine position à l’égard de la politique, d’ailleurs perceptible dans l’expression rule of law. Le droit est censé précéder l’Etat, aussi bien historiquement—la common law préexistait à l’invasion normande et elle remonte à des temps immémoriaux—que génétiquement—le pouvoir politique devant respecter quelques principes fondamentaux comme le due process of law. Ce caractère contenu déjà en germe donc dans l’héritage de la common law a été décuplé par l’histoire de la nation américaine qui s’est fondée sur une méfiance instinctive à l’égard de l’Etat assimilé à l’Etat colonial et par un attachement très profond à la Constitution, et un respect considérable des juges de la Cour Suprême des Etats-Unis. Robert Kagan (Kagan, 2001: 40) insiste à juste titre sur la méfiance de principe qui traverse toute la culture politique américaine et qui a pour conséquence de fragmenter à l’extrême le pouvoir. Le pouvoir central est contrôlé par le droit par l’intermédiaire de deux éléments capitaux. Le premier est l’élection politique des juges. Les juges des Etats sont élus dans un grand nombre d’Etats et une nomination à la Cour suprême donne lieu à des débats intenses devant le Sénat qui doit la confirmer. A contrario, lorsqu’un juge n’est pas élu mais nommé comme dans le cas de la magistrature fédérale, il a tendance à chercher sans cesse à renforcer sa légitimité comme s’il en manquait constitutivement. Dans la culture américaine, le juge est un acteur politique et non un legal expert comme dans les pays continentaux. Ce premier élément est corroboré par un autre: la présence dans toutes les affaires d’un jury (qui est largement abandonné dans la common law anglaise). Il s’agit à l’évidence d’un des canons de la culture juridique américaine comme le rappelle Tocqueville. Tous les éléments de la justice civile américaine—c’est-à-dire les class actions, des contingency fees, un jury et des punitive damages—entretiennent le rêve caché d’une société qui pourrait ‘tourner’ sans politique. ‘Adversarial legalism gives the United States the most politically and socially responsive court system in the world. Compared to most national judiciaries, American judges are less constrained by legal formalisms; they are more policy-oriented, more attentive to the equities (and inequities) of the particular situation. In the decentralized American legal system, if one judge closes the door

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on a novel legal argument, claimants can often find a more receptive judge in another court. Adversarial legalism makes the judiciary and lawyers more fully part of the governing process and more fully democratic in character’ (Kagan, 2001: 16). Robert Kagan montre de manière convaincante comment la stratégie de la Cour Suprême et de toutes les législations depuis quelques décennies aux Etats-Unis est de chercher à gouverner en se passant d’une administration pour mettre en œuvre les lois. Le système judiciaire permet ainsi de résoudre l’équation impossible d’avoir à faire de la politique dans une culture où le pouvoir est déconsidéré. Dans l’imaginaire politique américain, le droit se fait par le bas, autant par la pugnacité des citoyens pour faire respecter leurs droits garantis par la Constitution, que par la volonté légiférante. D’ailleurs, tout dans cette culture, contribue à exciter l’argumentation. Les incitatifs sont aussi bien de nature procédurale (c’est par un échange sur un pied d’égalité que l’on convainc un tiers impartial), politique (il y a toujours un dernier round judiciaire et rien n’est a priori trop haut pour un plaideur) qu’économique (les profits pour le plaignant sont certes aléatoires mais peuvent être très substantiels).

B. Une foi dans la procédure Lors d’une réunion internationale récente, un professeur américain estimait en présence de juges chinois que la progression de la rule of law était obstruée par le manque de confiance des Chinois dans les procedures.1 Mais ne prenait-il pas pour une règle générale ce qui est particulier aux EtatsUnis? Il transposait benoîtement le principe libéral: ‘Un gouvernement de lois et non de personnes’ et estimait inéluctable que, dans la démocratie, l’autorité se dépersonnalise, se ‘désincorpore’ en se muant dans des règles abstraites de délibération. Ce décentrement initial de la démocratie américaine vis-à-vis du pouvoir, prolongé par une méfiance de principe à l’égard de l’Etat fédéral ou étatique, expliquent l’importance accordée au due process of law, c’est-à-dire à la loyauté de la procédure. A moins qu’il ne faille inverser la proposition et relever que les procédures font l’objet dans la culture américaine, d’une véritable croyance. Les Américains sont persuadés de la supériorité de leur système en raison de la place qui y occupent les procédures, et résisteraient à y voir l’effet d’une croyance. Pourtant un auteur allemand, Smend, ‘fait remonter la généalogie de la délibération parlementaire aux règles du procès civil au Moyen Âge, à une croyance (Glauben), qui, au sens plus étroit, doit être nécessairement le fondement de toute procédure: à savoir qu’une dialectique de la procédure 1

Conférence organisée par le CERI et Sciences-po, le 12 décembre 2005.

74 Antoine Garapon correctement réglée est la garantie la plus sûre pour la production d’un résultat vrai, juste et bon. Plus le rationalisme est dépourvu du sens de la nature non rationnelle de la lutte politique, plus il donne de l’importance à la technique de la procédure, où il trouve la garantie de la bonne décision’ (Pasquino, 1998: 12). Lorsque l’autorité ne vient plus d’en haut, que la vérité ne peut plus être déduite de la nature, c’est vers une procédure qu’il faut se tourner. C’est pour cela que la culture américaine estime qu’une bonne décision, c’est une décision qui a été bien débattue. Le sens donné par la culture juridique américaine à l’idée de procédure s’éloigne beaucoup de ce qu’il est dans nombre d’autres cultures, à savoir un ensemble de formalités pour contrôler l’action de la puissance publique. La procédure s’apparente, dans la culture juridique française par exemple, à une série de formalités dont l’acteur principal doit s’acquitter pour agir: elle ne renvoie pas à une méthode pour rendre productive l’action collective comme dans la culture juridique américaine. Et pour cause, puisque la vérité judiciaire dans cette culture reste toujours une affaire de juges. On comprend que la procédure ait mauvaise presse en France qui y voit des formalités froides et désincarnées. Elle manque de contenu existentiel, de vie partagée. Dans la culture juridique française, la vie ne se partage qu’en dehors des procédures et c’est plutôt le droit substantiel, celui qui exprime la volonté souveraine qui est crédité de la confiance publique. La culture française est dans ce sens là plus méfiante envers une procédure qui permet aux citoyens de déborder la volonté du législateur que la culture américaine. Cette force des procédures en common law ne date d’ailleurs pas d’hier. James Whitman (forthcoming) montre que les règles de la procédure pénale ont eu très tôt autant une fonction d’autorisation morale pour décharger les juges de la responsabilité de juger, qu’il appelle de ‘confort moral’, que de protocole pour conduire à la vérité. Si l’on se reporte au débat contemporain sur l’admissibilité dans certains cas extrêmes de la torture, on ne sera pas surpris de retrouver cette fonction de ‘confort moral’. Cette croyance dans les procédures est donc typique d’une culture spécifique, en l’occurrence la culture américaine, en même temps qu’il est incontestable qu’il est inscrit dans le destin de toute démocratie d’évoluer vers toujours plus de procédure. Une fois encore, on constate un mixte entre la particularité de la culture américaine et l’évolution générale de la modernité.

C. Une culture décentralisée sur le plan interne qui aspire à jouer un rôle central sur le plan international Cet ‘ordre de justice’ qui allie si curieusement pragmatisme et moralisme, marchandisation et moralisation, n’est sans pas sans lien avec le mythe exilique et son complément messianique de la nation américaine, terre d’accueil de tous les persécutés de la terre et qui, en retour, se doit de convertir le

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reste du monde à la démocratie, au marché et aux droits de l’homme. C’est très visible à propos des affaires d’indemnisation de l’Holocauste, lesquelles révèlent également les limites de cette prétention en raison de sa culture libérale: il est bien difficile en effet à un droit décentralisé dans son fonctionnement interne de jouer un rôle central sur le plan international. Ce qui constitue une qualité en interne peut s’avérer être une faiblesse au contraire sur le plan global. Ces contradictions ont été particulièrement manifestes à l’occasion de ces affaires, notamment lors des négociations internationales avec les banques allemandes et helvétiques: celles-ci étaient constamment sous la pression d’une culture juridique et politique américaine qui demeurait étrangère aux défendeurs et qui a été délibérément utilisée par le gouvernement américain pour déstabiliser leur partenaires à la transaction. Ces affaires montrent comment une culture juridique particulière dominante interfère, voire sidère les droits nationaux et plus généralement la souveraineté des Etats. ‘Le concept d’une grande plainte collective à l’américaine, déposée par une organisation représentant des dizaines de milliers de personnes qui peuvent tout ignorer de l’affaire présentée en leur nom, est étranger aux Suisses. Ces derniers ne sont non plus familiers des accords entre les parties, et encore moins d’un certain type de justice sommaire fondée sur un droit moral qui peut aller à l’encontre d’une jurisprudence indiscutable’ (Eizenstat, 2004: 74). Que ce conflit de cultures se tranche en faveur de la culture américaine, qui est la plus atypique, ne provoque pas d’états d’âme parmi la délégation américaine. Car elle a le sentiment d’agir pour la bonne cause. On ressent un mélange entre le sentiment un peu naïf de faire le bien et une agressivité qui n’a pas son équivalent ailleurs. ‘Dans la vie politique tumultueuse des Etats-Unis, c’est de l’affrontement des intérêts que découle les décisions politiques, et c’est ce qui s’est passé pendant nos négociations. Les procédures judiciaires n’étaient que l’incarnation d’une lutte politique titanesque, brouillonne, parois indécente et toujours frustrante’ (Eizenstat, 2004: 362). Stuart Eizenstat, le Sous-secrétaire américain, constate que le système judiciaire américain n’est pas adapté pour remplir ce genre d’accord et moins encore pour en gérer les conséquences. Ces affaires se terminent sur un paradoxe: alors qu’un accord général a été conclu, notamment dans l’affaire concernant l’Allemagne, les Européens demandent un engagement de la part de l’administration américaine, certifiant qu’il n’y aura plus de procès. Mais le gouvernement américain est bien embarrassé car il n’est pas dans son pouvoir de délivrer un tel document. Il ne le peut pas car son emprise sur les juridictions est bien mince comparé à celui dont dispose un gouvernement européen à l’égard de son institution judiciaire. Un compromis un peu bâtard sera finalement trouvé. Comme si la justice était capable de lancer des affaires, de les initier mais pas de les terminer ! La justice américaine se pose comme un interlocuteur incontournable pour les autre pays du monde. Incontournable mais immaîtrisable.

76 Antoine Garapon II. UN DROIT MOINS ‘RATIONNEL’ ET PLUS OPERATIONNEL

On se souvient du fameux jugement porté par Max Weber sur le droit de common law qu’il estimait moins ‘rationnel’ que le droit continental. ‘Le degré de rationalité, explique-t-il, [y] est beaucoup plus faible et d’un type différent que dans le droit européen’ (Weber, 1986: 230). Et, poursuivait-il, une des raisons en est que les professionnels du droit et notamment les avocats, ont empêché un processus de rationalisation qu’ont connu d’autres pays comme la France ou l’Allemagne. Voici que les prophéties de Max Weber sur les qualités respectives des deux systèmes semblent se retourner contre la proposition initiale: l’archaïsme apparent du système de common law s’avère être mieux adapté au contexte inédit de la mondialisation et pour une raison de plus en plus évidente. Le processus de rationalisation avait intimement partie liée avec l’Etat, et il se retrouve non seulement orphelin mais contre-productif, lorsque se construit un monde sans souveraineté comme aujourd’hui.

A. La communauté universalisante des lawyers Dans la culture de common law, le moteur de l’universel ne passe pas par la loi et le pouvoir central mais par une communauté de juristes. La contrepartie de la mise sous tutelle du pouvoir par le droit et de l’attachement à la procédure évoqués plus haute se trouve dans l’accélération dans la culture américaine de la force de la communauté des lawyers, véritable ciment politique de la nation. Une telle unité—et donc une telle force—sont inconnues dans les pays de droit civil. Dans le monde de common law, les juristes forment une communauté unie quelque soient leurs fonctions—avocats, notaires, huissiers, juristes d’entreprise—au sommet de laquelle on trouve précisément les juges. Unité culturelle tout d’abord, parce que tous ces juristes de common law venus d’Australie, du Canada ou des Etats-Unis—même si leurs droits peuvent diverger substantiellement—ont acquis des mêmes réflexes, un langage identique et une langue commune. Ils se reconnaissent les mêmes scènes fondatrices (L’affrontement de Lord Coke et du roi, la Magna Carta, etc.). Unité morale ensuite, dans tous les sens du terme: ces juristes partagent les mêmes mœurs, la même manière de se tenir, de se comporter en cour, mais aussi une même éthique professionnelle. Unité intellectuelle enfin: ces systèmes se caractérisent par une complémentarité dans leurs fonctions, une très grande diversité des domaines dans lesquels évoluent les juristes, rendue possible par le langage commun de la procédure, l’ensemble du droit étant stabilisé in fine par la jurisprudence des juges. Cette unité procure à l’ensemble force et cohérence (alors que l’éclatement des professions juridiques s’avère être une source de faiblesse pour les pays de droit civil). La common law définit une culture judiciaire qui n’est pas restreinte à une nation particulière. C’est pourquoi elle peut faire l’objet d’un véritable

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patriotisme culturel, c’est-à-dire d’un attachement à une entité plus grande que l’Etat national mais moins grande que le monde. Ce patriotisme culturel est un médium d’identification des individus à la common law, indépendamment des frontières. Ce patriotisme favorise la constitution d’un espace transnational d’échange entre juridictions de common law qui en retour favorise un rapport spécifique à l’espace et au temps. D’une part, le droit est d’emblée déterritorialisé2: la common law est plus liée à une histoire narrative qu’à un territoire. D’autre part, la common law semble se déployer dans un temps sans rupture. Le mythe de la common law, c’est en effet un seamless web, un tissu sans couture, sans aspérités historiques, sans déchirements parce que sans législateur. Le rapport de la common law au temps et à l’espace la prédispose à une universalisation tout à fait particulière. Tout se passe comme si la common law avait été globalisée dans ses instruments avant même de rencontrer la mondialisation que nous connaissons aujourd’hui. En d’autres termes, la common law propose un rapport à l’universel qui semble aujourd’hui correspondre à la mondialisation de la justice. Cette prédisposition culturelle explique peut-être la vision américaine de la mondialisation comme l’extension géographique à d’autres cultures d’une formule qui a fait ses preuves aux Etats-Unis. Sans constituer véritablement une stratégie machiavélienne, il y a là une représentation plus ou moins formulée. Puisque finalement les juristes ont réussi à introduire cette fluidité, ce liant dans la vie américaine dont le ciment était le droit et non la politique (à la différence de la France), pourquoi la même expérience ne pourrait-elle être reconduite chose au niveau du monde? On rejoint l’idée sous-jacente américaine du peuple monde, c’est-à-dire l’extension d’une mondialisation commencée aux Etats-Unis. Une telle puissance et une telle communication entre les juristes—aussi bien les juges que les avocats—dans le monde de common law est atypique. Elle ne s’est pas souvent produite ailleurs exception faite du monde arabomusulman dont les Etats sont faibles et sans grande légitimité. La puissance de l’Etat dans tous les autres pays européens a eu pour effet de balkaniser les professions juridiques et de valoriser plus la figure du fonctionnaire d’Etat que celle du juge. Le cas de la France est encore paradigmatique.

B. Un système qui repose sur l’incertitude Le test de rationalité du droit reposait in fine dans l’esprit de Max Weber sur sa prévisibilité. Or la construction d’un droit autour de l’idée de procédure détourne en apparence de cet objectif. La procédure offre en effet une alternative à la volonté politique centrale, en permettant de mettre 2 Faut-il rappeler que, historiquement, le propre de la common law était, précisément, d’être commune à l’ensemble des coutumes locales, d’où son nom?

78 Antoine Garapon en forme l’action collective, c’est-à-dire d’agencer plusieurs volontés individuelles. L’idée de procédure entendue ainsi nous conduit au cœur de la pensée libérale qui sous-tend la culture américaine, à savoir que le droit doit se mettre au service de la liberté et de l’initiative individuelle. Pour le dire simplement—trop simplement peut-être—pour la plupart des autres pays démocratiques, un acteur—l’Etat—est plus légitime que les autres, ce qui justifie de lui accorder des prérogatives et un statut dérogatoire. La volonté générale s’exprime à travers la voix du législateur qui est appliquée par les juges. On retrouve cette idée jusqu’en Grande-Bretagne qui est un Etat providence très centralisé. La conception américaine de la procédure repose tout entière sur une valorisation de l’agency individuelle qu’elle sert en priorité. En d’autres termes, la conséquence de la place éminente que la culture américaine réserve à la procédure et à la fonction politique du juge, entraîne une conception très instrumentale du droit. Celui-ci n’est plus conçu comme un ensemble abstrait de règles qui renvoie à un certain idéal mais à une trousse à outils pour agir. Il y a un idéal, certes, mais il est dans la procédure, et la procédure c’est un combat (figure du combat qui a beaucoup marqué la culture de common law). Contrairement à nombre, voire à tous les autres pays, aux Etats-Unis l’incertitude du droit est vécue comme un mal nécessaire, comme le prix à payer pour garantir la liberté individuelle. Cette incertitude a même été théorisée par l’école du réalisme américain. Une fois de plus c’est autant la culture qui explique les théories sociologiques que l’inverse. Parce que plus que dans n’importe quel autre pays, le résultat de ce que décideront les juges ou les jury est incertain, c’est à ce produit final qu’il faut identifier le droit et non pas à ses présupposés rationnels annoncés par le législateur et par la doctrine. Cette insécurité juridique érigée en système heurte nombre de juristes continentaux qui estiment que l’on doit attendre exactement le contraire d’un système juridique. Mais une fois encore, c’est se méprendre sur la culture juridique américaine: en réalité, le type de sécurité que procure la procédure n’est pas de même nature que celle qu’annonce un droit prétendument rationnel (parce qu’on sait bien que le degré de complexité est devenu tel que les rapports entre le juge et la loi sont aujourd’hui inversés: c’est la réglementation qui est devenu un facteur d’insécurité et le juge un réducteur de complexité). Le plaideur est incertain de l’issue du litige mais il a toujours la possibilité de transiger, donc de rester maître de son action. La sécurité n’est pas extérieure à l’agent mais dans la capacité qui lui est reconnue tout au long de la procédure. L’incertitude s’analyse en dernier lieu comme un puissant incitatif à transiger. C’est ainsi que, comme chacun sait, une proportion énorme (plus de 90%) des affaires aussi bien pénales (par le biais du plea bargaining) que civiles (par les settlements) se terminent aux Etats-Unis par des négociations en face à face et non par une décision

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qui tombe de manière autoritaire. Les inconvénients de l’incertitude du droit sont compensés par le gain en terme de liberté de négocier. Mais, sortie de ses frontières, cette incertitude n’a plus le même sens. Elle devient un marché captif pour les avocats américains qui détiennent les clés intellectuelles et culturelles de ce fonctionnement.

C. En retard ou en avance? Un autre secret de la culture américaine réside dans son rapport au local. Politics is local ! Cela illustre d’une autre manière le même esprit de la décentralisation qui est au cœur de l’idée de jury. La ressource locale devient un stratégie pour relever les défis de la mondialisation: il y a des problèmes gigantesques? La culture américaine les traite comme s’il s’agissait d’une affaire ordinaire et locale. Prenons l’affaire Enron: c’est un jury de Houston qui a mis une entreprise mondiale en faillite, décision qui fut ensuite infirmée par la Cour suprême mais une fois que le mal était fait. Une telle décentralisation s’avère être un atout pour affronter les problèmes globaux. Ce qui apparaissant comme un vestige d’irrationnel à Max Weber s’avère être mieux adapté au contexte de le mondialisation qui est un contexte politique décentralisé où le droit est dit dans de multiples instances qui ne sont pas homogènes entre elles. Le paysage du droit mondialisé est non seulement acéphale mais démembré en de multiples registres normatifs (intergouvernemental, professionnel, techniques, etc). Nous connaissons aujourd’hui la fin du cycle positiviste, dont Max Weber pouvait vanter le caractère rationnel, et qui était intimement lié au contexte westphalien. Ce système, comme chacun sait, assurait la clôture de chaque ordre normatif interne et faisait du pouvoir central le seul diseur de droit. Deux canons aujourd’hui remis en cause avec la disparition de ce système. Tout se passe comme si le droit étatique, positiviste et lié à un Etat, avait été si ce n’est une parenthèse au moins une étape et que dans un contexte mondialisé, le droit doit se comprendre plus délié du pouvoir. Harold Berman (1997) montre en effet que cet état du droit était considéré comme normal avant d’être englouti par le nationalisme des différentes nations européennes. La culture américaine est-elle en avance ou en retard? Bornons-nous, pour l’instant, à constater que derrière cette opposition se profilent deux voies distinctes d’accéder à l’universel. L’une préfère le local au général, la décentralisation à la centralisation, le pragmatique au détour par des abstractions: c’est la culture juridique américaine. L’autre cherche à atteindre directement l’universel en centralisant aussi bien dans des codes que dans un pouvoir étatique; au risque de voir aujourd’hui ce qui a fait sa force se transformer à l’heure de la mondialisation, en handicap.

80 Antoine Garapon III. UNE CULTURE A LA FOIS TRES MARCHANDE ET TRES MORALE

C’est encore vers la culture qu’il faut se retourner pour comprendre un autre paradoxe de la culture américaine: elle réduit le droit au statut de bien marchand en même temps qu’elle lui imprime une dimension morale, voire moralisatrice. La ‘marchandisation’ du droit s’explique tout d’abord par la figure si originale du lawyer qui réunit ces deux visages.

A. La marchandisation du droit Une des clés de l’expansion de la culture juridique américaine vient du dynamisme de la profession d’avocat. Avant d’être un facteur d’influence externe, la force des lawyers est un moteur interne qu’ils doivent à leur mode d’organisation. Très tôt les lawyers ont fait du droit un business comme un autre. Cela leur a donné une capacité d’absorber la complexité que n’avaient pas les autres avocats, notamment continentaux, qui continuaient de considérer leur tâche comme un office ministériel. Même si les avocats américains ont ainsi créé un véritable marché du droit dès le XIX ème siècle, l’explosion du chiffre d’affaire est relativement récente (il est passé entre 1960 et 1987 de 9 milliards de dollars à 54 milliards de dollars) (Kagan, 2001: 36). L’importance numérique de cette profession est à l’image de l’importance procédurale de l’avocat. La procédure de common law est entièrement agie par l’avocat et non par le juge. Mais la procédure n’explique pas tout: la profession s’est dessinée et organisée sur un mode entrepreneurial. On se souvient qu’aussi bien Max Weber (1986) que Ernst Troeltsch (1991: 152) insistent sur la sacralisation de la profession dans le milieu protestant qui contraste avec la figure du clerc qui caractérise les juristes continentaux. Une telle réunion dans la même personne du businessman et du professeur de morale, commune au lawyer et au manager, déroute nombre de ses partenaires qui sont prompts à y voir de l’hypocrisie alors qu’elle a probablement partie liée à la révolution protestante. ‘Vu par un regard français, celui qui mêle ainsi les “prêches” vertueux à la défense d’intérêts est volontiers accusé d’hypocrisie. Il endosse au premier titre l’habit de clerc et au second celui du marchand, et ces rôles sont largement regardés comme incompatibles. Au contraire, d’un point de vue américain, marqué non seulement par le refus protestant de l’opposition entre laïc et clerc, mais aussi par une révérence pour les marchands pieux qui ont été à l’origine de la nation, cette figure fait référence. On peut dire en ce sens qu’elle est un élément du modèle américain de gestion’ (D’Iribarne, 1998: 265). La professionnalisation traduit donc un rapport à l’argent dont les racines culturelles sont certes à chercher dans l’histoire américaine mais aussi dans une laïcisation radicale de toute dette symbolique: c’est le sens des analyses de Marcel Hénaff. Dans la culture américaine, tout est régulé par l’argent

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parce que la dette est totalement laïcisée, c’est-à-dire que tout peut être liquidable par une somme d’argent. ‘Donner un prix sur un marché, c’est affirmer un monde contrôlé, strictement humain, fonctionnel. Pour toute perte, pour toute offense, pour toute faveur, il y a une réponse qui transforme la dette symbolique en dette financière. Le responsable du dommage ou de l’offense—ou bien sa compagnie d’assurances—paie parfois des sommes considérables et la dette est close’ (Hénaff, 2002: 316). Il n’empêche que c’est aussi aux Etats-Unis que l’on voit persister—une exception dans le monde démocratique- la peine de mort, ce qui n’est peut-être pas sans lien avec ce qui précède. «[C]e maintien sert d’ultime refuse à la dette symbolique ; on demande en somme aux condamnés à la peine capitale de témoigner par leur mort, du hors-de-prix de la vie quand par ailleurs ce prix est constamment défini et négocié sur le marché’ (Hénaff, 2002: 317 ).

B. Une singulière efficacité Un observateur ne peut qu’être frappé par le coût exorbitant des transactions juridiques aux Etats-Unis3 et une grande valorisation de l’efficacité. Pour un esprit continental en effet, l’efficacité est le fruit d’une rationalisation administrative de l’institution judiciaire, ce qui renforce le statut d’agent public de ses membres. L’efficacité aussi a profondément à voir avec la culture d’un peuple. L’efficacité peut certes se mesurer mais elle est loin d’être un critère absolu qui nous débarrasse définitivement de tout archaïsme culturel. Le critère de l’efficacité est lui-même tributaire de la perception que chaque culture se fait de la nécessité des biens, donc, en d’autres termes, de ce qui fait autorité dans cette culture (en revoyant in fine à une croyance). L’investissement que les Américains mettent dans leur système judiciaire, énorme et disproportionné par rapport à sa production, témoigne bien de sa surdétermination symbolique. L’explication est peut-être à chercher dans la relative déconsidération dans laquelle est maintenu le pouvoir politique central. Ce dernier ne remplit pas le rôle de tuteur symbolique de la société, comme on le constate dans un pays comme la France, qui est la caricature de l’exact opposé. Cette béance oblige à un report massif de l’investissement politique—mais aussi économique—vers la justice, qui se pose comme la véritable scène de la démocratie américaine. Ce n’est pas donc pas seulement l’efficacité qui est recherchée par les plaideurs mais également à cette occasion une réactivation des mythes fondateurs. Tout le gâchis financier de la litigation aux EtatsUnis, si bien décrit par Kagan, est en apparence absurde d’un point de 3 Voir à ce sujet l’opinion dissidente du juge Breyer dans Empagram où il s’interroge sur le coût de la discovery (Arrêt du 21 juin 2004, Opinion dissidente de Stephen Breyer), (Souty, 2004).

82 Antoine Garapon vue économique. Il a bien une rationalité mais qui n’est pas économique: c’est une manière d’investir dans la paix sociale, dans. Les sommes considérables que les Américains ‘donnent’ aux lawyers, peuvent ainsi s’analyser comme un investissement dans le lien politique et la paix sociale pour la consolidation du vivre ensemble. La mesure de la part culturelle accordée à des critères en apparence très neutres comme l’efficacité, n’invalide pas l’analyse économique mais la relativise. Ce n’est pas parce que l’importance accordée à l’économie a des origines culturelles et qu’elle est l’objet de surdéterminations sociales, qu’elle ne perd du même coup toute pertinence. Tout au contraire, une telle prise de conscience oblige à préciser davantage ce qui a partie liée à une culture et ce qui est universalisable. Cela invite à tempérer une foi naïve en culture managériale qui réconcilierait le monde entier au détriment de tout relent d’archaïsme culturel. Celle-ci est en incontestable progrès mais en suivant des chemins très différents (Langer, 2004: 45). On peut comprendre que les Américains investissent tant d’argent dans leur vivre ensemble mais est-il normal qu’ils imposent ce surarmement juridique aux autres qui disposent d’autres véhicules symboliques que l’argent pour exprimer leur vivre ensemble? C. Le lien entre le business et la justice Ce lien essentiel entre le marché et le salut collectif, voire l’élection, du peuple américain, n’est nulle part mieux exprimé que par un professeur de droit américain qui justifie ainsi l’emprise de la justice américaine et du gouvernement à intervenir dans des affaires qui n’entretiennent qu’un lien ténu avec les juridictions américaines. But I believe that the technical answers are driven by something deeper—a sense of the moral obligation of foreign defendants to live by American rules of fundamental fairness, both substantive and procedural, if they wish to participate in the remarkable success of this economic, social, and political culture. The fact is that alternative forums are simply inadequate to give the victims a fighting chance at justice. At the risk of hubris, I want to remind us all of the astonishing success of our economic and political models. Measured by prosperity, freedom, innovation, tolerance, and the simultaneous achievement of social mobility and political stability, the American experiment is a remarkable success. It is so successful that no major economic player on the world stage can hope to succeed without participating vigorously in our market and reaping the benefits of our economic prosperity. But that market, and the resulting prosperity, did not spring up by accident. Our success flows from a social and political commitment to fairness and the values of decency that find their expression in the American respect for the rule of law—a virtually unique legal system that provides a genuinely level playing field for a poor Holocaust survivor seeking to confront a corporate giant. In short, I believe that we are prosperous in large part because we have

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enjoyed—and dispensed—the blessings of “Equal Justice under Law” and have built a legal system that provides the weak with a fair chance at victory, at least sometimes. When a foreign corporation wishes to reap the benefits of our economic and social system, I am not the slightest bit embarrassed to insist that the foreign corporation agree to live by the legal rules that allowed the social and economic system to flourish. Thus, there is a choice to be made: remain provincial and shield yourself from American values as expressed in the American legal system or seek to play on the American stage and learn to live by them. In short, I do not apologize to foreign defendants who want to reap the benefits of the American dream without agreeing to play by American rules. (Neuborne, 2002: 795)

Est ici clairement exprimé le lien profond entre la liberté, la prospérité et la justice. Il s’agit là d’un lien très profond, probablement non formulé dans l’esprit de la plupart des Américains (c’est pour cela qu’il faut rendre grâce à ce professeur de le dire avec autant de candeur). Si les Etats-Unis sont plus riches que les autres, c’est parce qu’ils ont placé la justice en son cœur. Il existe donc un lien entre le marché et la justice. C’est là une croyance très profondément ancrée dans l’esprit des Américains: l’argent est le signe d’une reconnaissance morale, voire d’une élection morale. Ils sont donc justifiés à exercer des pressions sur les autres pays, à condition de le faire pour la justice—pour les rescapés de l’Holocauste par exemple. Oui, il est légitime d’exploiter la dépendance économique des pays moins puissants, parce que la participation au marché américain doit avoir une contrepartie.

D. Une moralisation du monde Le respect tout particulier que la culture américaine porte au droit et à la justice, lui a permis de transformer une idée qui agitait les esprits européens depuis la première guerre mondiale: juger la guerre. C’est en effet la volonté américaine qui réalisé cette moralisation de la guerre lors du procès de Nuremberg. Au-delà de la guerre, le droit prétendait s’imposer aux souverainetés ce qui opérait un renversement fondamental aux dogmes du droit international classique. Cette initiative opéra un véritable choc culturel qui fut vécu douloureusement par les Allemands mais qui fut également dénoncé comme tel à l’époque par des juristes européens et américains (Maguire, 2001). L’événement est d’importance car il fait epoch making en portant un coup fatal au modèle westphalien (même s’il faudra attendre la fin de la guerre froide pour en voir les effets). Cette entreprise connut un succès au-delà de toute espérance et avec la création de la Cour pénale internationale, les Etats-Unis se trouvent pris à leur propre piège. Les résistances qu’elles montre à l’égard de cette juridiction qui accomplit en quelque sorte son entreprise prémonitoire de Nuremberg, montre bien l’attitude paradoxale des Etats-Unis. L’Amérique

84 Antoine Garapon prétend moraliser le monde par la justice mais, une fois au pied du mur, ne veut pas se soumettre elle à cette juridiction. Une telle attitude n’est pas unique et l’on pourrait la rapprocher d’autres positions américaines. Les juridictions américaines se déclarent compétentes pour donner des leçons de morale aux autres pays ou leur faire bourse délier, mais refusent leur compétence lorsqu’elles doivent réparer leur propres dommages comme dans le cas d’Union Carbide (Muir-Watt, 2003: 898). Un tel ‘deux poids deux mesures’ est détestable et doit être condamné avec la dernière énergie. Mais elle ne permet pas pour autant d’échapper au dilemme posé au début de notre réflexion: faut-il refuser cette idée parce qu’elle est américaine? La réponse est dans la question.

IV. UNE CULTURE A LA FOIS TRES OUVERTE ET TRES FERMÉE

Un cinquième paradoxe peut être formulé ainsi: la culture américaine—le droit n’échappe pas à la règle—fait à la fois preuve d’une grande ouverture et en même temps d’une grande fermeture. Les Américains, du fait de leur puissance et de leur culture d’immigration, sont enclins à penser qu’ils sont plus ouverts que les autres cultures, quitte à s’aveugler sur leurs biais culturels.

A. Une culture très sophistiquée et très provinciale N’importe quel juriste continental—mais cela doit être vrai pour le reste du monde—est perplexe devant, d’une part, l’incroyable richesse de la littérature juridique américaine et, de l’autre, sa faible pertinence pour son propre droit. La culture juridique américaine est de loin la plus riche, non seulement en quantité mais aussi en raison de sa très grande ouverture aux différentes sciences sociales. Ce n’est probablement pas un hasard si les mouvements tels que le réalisme, critical legal studies, law and litterature et, bien sûr, law and economics, même s’ils ne sont pas tous nés aux Etats-Unis, y ont particulièrement prospéré. Mais en même temps, tous ces mouvements qui font vivre des centaines de revues aujourd’hui facilement accessibles grâce à des moteurs de recherches spécialisés, conservent un parfum intellectuel très fort. Il est très difficile par exemple, de penser les rapports entre le droit et la religion hors du cadre de pensée du premier amendement. Pour le dire en termes américains, la culture américaine est à la fois très sophistiquée et très paroissiale. Que la culture américaine soit ‘paroissiale’ n’est pas très étonnant— quelle culture ne l’est pas?—plus intéressant est de comprendre pourquoi elle prétend plus que n’importe quelle autre à une universalité qui finit par lui cacher à elle-même les propres conditions de production de ses idées.

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Prenons l’exemple de la discipline law and economics qui est devenue le passage obligé dans nombre d’universités américaines aujourd’hui. Des départements entiers de droit ne recrutent leur personnel que sur la base de ce critère. Ce qui vient d’être exposé sur la culture juridique américaine éclaire ce succès: une telle approche, qui a toutes les apparences de la science, présente le mérite de la quantification. Elle évite un bavardage qui insupporte ces esprits pragmatiques que sont les Américains et a pour effet, remarque Ugo Mattei (2003: 395), de dépolitiser les débats en ramenant toute question, qu’elle soit morale ou pratique, à une question d’efficacité. Elle a aussi beaucoup à voir avec une conception du sujet comme acteur rationnel, avec la solitude de principe qui est une marque du protestantisme. Elle ramène tout à une question d’intérêt, comme si lui seul gouvernait le comportement des hommes et que la passion avait déserté la terre démocratique. Par ces équations, les sciences sociales se rassurent, et pensent qu’elles ont trouvé la manière d’entrer dans l’universel. Mais l’impérialisme de cette approche rend la communication entre l’Amérique et d’autres pays plus problématique. Un esprit européen est souvent très dérouté de voir l’importance de l’approche économique du droit notamment lorsqu’elle est appliquée à des matières comme la peine de mort, l’éthique des juges ou encore le plea bargaining. B. Entre le ‘peuple monde’ et le village global … et ignorance du reste du monde Un tel rapport à l’universel a probablement à voir avec une culture d’immigration, avec le rêve de construire un ‘peuple-monde’, c’est-à-dire un peuple qui ressemble à la diversité de la terre entière et la résume dans une culture plus ouverte que toute autre. Un monde en miniature. Toutes les cultures du monde se retrouvent en effet aux Etats-Unis, sous la forme d’une minorité ethnique ou par une présence dans le milieu académique. Ce qui constitue effectivement est un obstacle à toute généralisation: ‘Mais nous sommes si différents comment pouvez-vous généraliser?’. Il n’empêche que la grande unité culturelle du monde juridique américain est plus facilement perceptible par des étrangers, pour qui les différences, qui sont incontestables, paraissent néanmoins beaucoup moins fortes que les canons culturels communs. Cette diversité n’est cependant supportable qu’à la condition de rentrer dans le moule américain, d’en adopter la langue, les manières académiques, les canons culturels. Cela donne l’impression d’un accès à l’universel propre à l’Amérique. Tout se passe comme si la stratégie de la culture juridique américaine, si l’on peut s’exprimer ainsi, consistait à réduire la différence en l’important. Non sans lui avoir imposé une lourde taxe: toute idée est recevable dans le milieu académique à condition d’être formulée en anglais et dans le formatage canonique d’une contribution scientifique. Tout est bon à condition de passer préalablement par le siphon américain.

86 Antoine Garapon Le danger d’une telle situation vient du conditionnement—à tous les sens su terme—que la culture impose à la pensée. Tout débat y évolue dans une atmosphère en air conditionné. On est tout proche de l’air pur mais une vitre nous sépare. La pensée épouse les qualités de l’endroit où elle se déroule: dans un air artificiel, à une température plus basse—les conflits sont refroidis, les variations de température sont annulés ; les locaux sont beaux, un peu irréels et la nourriture a perdu de son goût. Une pensée un peu fade, sympathique, propre, avenante. Mais dont le droit d’entrée est très élevé… Contre cette pensée de l’air conditionné, l’approche culturelle propose une confrontation plus profonde, moins protégée, du contact avec autrui, une véritable épreuve intellectuelle de sa propre pensée. La différence culturelle s’éprouve avant de se penser. Or c’est précisément cette expérience de l’altérité qui manque à nombre de chercheurs américains. L’expérience concrète de se retrouver dans un milieu que l’on ne connaît pas mais dont on accepte qu’il ait une rationalité. Il ne suffit pas de lire des livres: il y a aussi une culture in the books et une culture in action. Il ne faut pas réduire la culture à du folklore (même s’il faut prendre le folklore au sérieux). L’affirmation de plus en plus forte de l’anglais comme langue de communication dans le monde, la disparité des enseignements fait que de plus en plus les élites sont formées dans des universités anglophones. Avec la langue, sont véhiculés les représentations de la culture anglo-saxonne pour faire court, ce qui est certainement une excellente chose en ce que cela accélère la construction d’un monde commun et l’adoption d’un langage commun. L’ouverture et les moyens de l’université américaine qui n’a pas son équivalent ailleurs, ont permis de se fixer comme objectif de former tous les spécialistes d’un secteur donné (du moins avant que les visas soient restreints après le 11 septembre). Une telle ambition qui a réussi dans certains domaines comme la gestion voire le droit, renforce un sentiment d’universalité. L’altérité culturelle est réduite par cette inclusion qui donne au débat l’allure d’une centralité qui n’a probablement son équivalent dans aucun autre pays du monde. La distance est internalisée en quelque sorte: c’est le village global américain. Cette hégémonie académique a pour effet de reporter la division non plus entre les cultures—disons l’américaine et l’indienne – mais à l’intérieur de chaque culture où le fossé se creuse entre ceux qui ont les clés culturelles de la mondialisation et les autres. Une telle politique a pour effet d’exporter la division local/global non plus entre les pays mais à l’intérieur de chaque culture. D’où un risque de glissement de terrain, une partie de la population ne se reconnaissant plus dans la culture de ses élites. Une telle fragmentation est un problème majeur que pose la mondialisation. Mais peut-il y avoir une ouverture sans une certaine fermeture? Est-ce si surprenant que cela? N’est-ce pas au contraire nécessaire? De la même manière qu’il ne peut y avoir de l’universel que s’il y a du particulier? Les Etats-Unis peuvent être très ouverts en interne parce qu’ils sont fermés et souverains: les deux font système. D’ailleurs les européens ont le même pro-

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blème: ils ne peuvent être ouverts qu’à la condition d’être fermés, d’avoir des frontières, ce qui débouche sur un dernier paradoxe.

V. UNE CULTURE HISTORIQUE QUI PREFIGURE L’AVENIR DES SOCIÉTÉS DEMOCRATIQUES

Venons-en, pour finir, à une interrogation centrale: faut-il redouter une domination culturelle du droit américain? La culture juridique américaine fascine et effraie en même temps. Beaucoup, en Europe ou ailleurs, redoutent une domination culturelle du droit américain, en même temps qu’ils en adoptent délibérément quelques institutions (on songe au plea bargaining et à tant d’autres). Beaucoup sont en effet tentés de dresser des blocs culturels et de les opposer sans s’interroger suffisamment sur les causes profondes qui ont poussé les Etats-Unis dans cette direction (Mattei, 2003). C’est décidément une puissance bien singulière que les Etats-Unis, oscillant entre protectionnisme et impérialisme, entre oubli du monde et messianisme, extrême ouverture interne et fermeture à l’extérieur. C’est le problème du fameux ‘exceptionnalisme’ américain (Ignatieff, 2005) qui voit le peuple le plus engagé pour les droits de l’homme signer le moins de textes internationaux dans cette matière. Les Etats-Unis pratiquent un universalisme intransitif. Il est possible de voir derrière ces paradoxes une ruse du pouvoir: cette culture juridique est libérale à l’intérieur mais souverainiste à l’extérieure, elle est morale quand cela l’arrange et cynique à d’autres occasions, décentralisée à l’extrême mais elle sait très bien se centraliser quand ses intérêts sont en jeu. Une telle appréciation est partiellement vraie, mais partiellement seulement. Comparons un instant la mondialisation juridique actuelle avec la domination soviétique sur les démocraties populaires. Cette période était également marquée par un certain universalisme mais ce dernier était politique et non juridique, substantiel et non formel. Est-ce d’ailleurs véritablement comparable ? A l’évidence non, parce que la culture américaine est démocratique. Il y a bien sûr une culture américaine, mais elle a ceci de particulier qu’elle se fonde dans un critère abstrait, extérieur et de surcroît commun à toutes les démocraties qui la décentre définitivement. Partant, il n’est plus possible de considérer cette culture comme n’importe quelle autre: cela nous semble interdire de réduire la situation actuelle à l’affrontement de ‘blocs’ culturels ou politiques. A. Les limites d’une lecture géopolitique en terme de ‘blocs’ Ceux qui dénoncent l’hégémonie de la culture américaine l’opposent à d’autres blocs culturels qui ne sont pas remis en question (la culture ‘latine’

88 Antoine Garapon ou ‘continentale’ par exemple). Une telle vision continue de voir dans les rapports d’Etats à Etats la clé de compréhension générale et universelle de tous les rapports politiques. Elle reste tributaire d’un modèle westphalien pourtant largement remis en cause au cours des trente dernières années. L’international, et en particulier les Etats-Unis, ou plus exactement la société civile américaine, devient partie prenante à des relations de pouvoirs internes. La globalisation fait naître une zone politique hors sol, déconnectée des souverainetés et réaménage en profondeur les rapports politiques internes. La lecture en termes de blocs résulte d’un double contresens, et sur l’Amérique et sur la culture. La culture ne peut être réduite à un instrument de puissance car elle peut se retourner aussi bien contre le pouvoir: elle offre un espace pour la résistance non pas seulement externe mais surtout interne. Plutôt que de parler de latin resistance (Mattei, 2003), ce qui condamne lesdits Latins à la ringardise, ne faut-il pas plutôt prêter attention aux libéraux américains qui aujourd’hui déposent des mémoires d’amicus curiae devant la Cour suprême, critiquent la perversion des valeurs américaines de la politique actuelle menée à Guantanamo ou à Abou Ghraib ? Le meilleur argument contre Guantanamo n’est-il pas de dénoncer une illustration supplémentaire de l’impérialisme mais une trahison des propres valeurs américaines ? La logique de blocs est attachée à une conception matérielle du territoire et manque donc de ce fait une dimension essentielle de la mondialisation actuelle qui est la simultanéité spatiale qu’autorise une certaine déterritorialisation. Je puis être à la fois Français sur certains sujets et me sentir plus proche des Américains sur d’autres. Ce qui caractérisent en effet les sociétés démocratiques, c’est leur division interne d’où elles tirent leur énergie (Lefort, 1986: 47). Enfin, la logique de blocs, loin d’être ‘progressiste’, risque de produire des effets exactement inverses, c’est-à-dire de justifier le conservatisme, voire de reconduire les dominations internes aux pays qui la dénoncent. Combien de sociétés du tiers-monde ont utilisé le spectre du colonialisme et de l’antiaméricanisme pour justifier leur immobilité, pire: pour légitimer l’oppression qu’elles imposaient à leurs peuples ? Diaboliser l’Amérique est le meilleur moyen de ne pas se réformer. On l’a vu également en France où tout activisme judiciaire est disqualifié en tant qu’américanisation du droit (Cadiet, 2001: 45).

B. Une logique commune à toutes les sociétés démocratiques D’un point de vue épistémologique, une lecture en termes de domination, fait malencontreusement l’économie d’une recherche sur les causes objectives qui expliquent le succès d’un système. Et si les pays importateurs

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de droit américain ne se jetaient pas dans la gueule du loup béatement, mais que, confrontés à des difficultés identiques, ils empruntaient des mêmes remèdes, non d’ailleurs sans les avoir accoutumés à leur propre culture? La culture juridique américaine ne serait-elle pas alors qu’une ‘exagération’ (Mattei, 2003) de tendances déjà présentes dans les droits européens y compris britanniques? On peut certes imputer l’importance grandissante des juges à une américanisation. Mais il est possible aussi d’y voir un mouvement de fond des institutions démocratiques qui se constate sous des formes différentes partout dans le monde. Selon cette seconde hypothèse, les Etats-Unis ne feraient qu’inaugurer un modèle nouveau dans lequel le droit occupe une place fondamentale. Les causes profondes de la judiciarisation se retrouvent dans toutes les sociétés démocratiques qui connaissent toutes une explosion des contentieux (que les Etats-Unis ont connu de manière quasiconcomitante avec les autres pays occidentaux). Celle-ci a quelque chose à voir avec la fin de la Guerre Froide qui a remodelé profondément les rapports politiques internes, l’Etat perdant de sa force du fait de la rétrogradation de la question de la sécurité externe et la justice occupant une place de choix du fait de la montée en puissance de la sécurité interne. La judiciarisation a partie liée avec le relâchement des solidarités traditionnelles, avec l’individualisme et avec la revendication d’une plus grande égalité, autant de facteurs qui sont inscrits dans les gènes de toute démocratie. Il faut donc y regarder à deux fois avant de dénoncer le délire processuel américain, comme phénomène spécifiquement américain. Gardons-nous donc d’accorder trop de place à l’idéologie au détriment de la culture. On ne prête qu’aux riches et il faut donc se méfier de trop prêter à l’Amérique et à son appétit d’hégémonie et pas assez à la dynamique propre des sociétés démocratiques dans lesquelles se trouvent les causes profondes. C’est ce qu’avait bien vu Tocqueville dans son célèbre voyage en Amérique qui lui permit de comprendre non seulement la culture américaine mais aussi l’homme démocratique. Ce qui rend la culture juridique américaine si troublante, c’est qu’elle est à la fois géographique et historique, particulière et générale. Il entre certes dans la culture juridique américaine une part spécifique liée à son histoire, à sa géographie—une île comme l’Angleterre—, à sa religion dominante, mais également une part universelle parce que le voyage des Pilgrims est celui qui attend, sous des formes diverses, tout individu des sociétés démocratiques. En témoigne la montée du thème du multiculturalisme qui n’est plus propre aux sociétés d’immigration.4

C. Un droit mieux adapté à l’évolution du capitalisme Un raisonnement identique peut être tenu à propos du droit économique. Prenons pour illustrer les enjeux à la fois culturels et politiques de la

90 Antoine Garapon mondialisation financière, l’exemple de l’harmonisation des règles comptables. Certains ont dénoncé en Europe continentale et notamment en France, l’hégémonie de la culture anglo-saxonne qui imprègne ces règles (Colasse, 2004). Elles sont en effet sous-tendues par un cadre conceptuel anglo-saxon, c’est-à-dire une vision ‘friedmanienne’ de l’entreprise (Colasse, 2004: 34). Celle-ci est réduite à un ensemble de contrats alors que la vision continentale, et notamment française, voit dans l’entreprise plutôt une institution. On voit s’y opposer deux conceptions de l’entreprise (contractuelle ou institutionnelle) à l’image de la représentation profonde des rapports sociaux (dont on trouve un écho dans le débat entre Locke et Rousseau). L’institution, c’est beaucoup plus qu’une entité publique et organisée, c’est le mode de socialité privilégié par la culture au même titre que la parenté ou que la hiérarchie traditionnelle. Cette (nécessaire) harmonisation voit aussi s’y opposer deux méthodes: la française privilégie le formalisme juridique, la qualification par le droit, l’anglo-saxonne est plus orientée vers a true and fair view. Le principe de régularité vient de la conformité à la règle de droit et à la sincérité, c’està-dire à la bonne foi. La latitude laissée aux professionnels est dans un cas étendue (culture anglo-saxonne) dans l’autre faible (modèle continental). Dans la culture juridique américaine, et peut-être plus généralement de common law, en effet, le droit est indissociable d’une action: il est là pour permettre d’agir. Ce qui est premier dans cette culture, c’est la liberté de l’individu. Point n’est besoin de passer par ce grand médiateur symbolique qu’est l’Etat, qui n’est lui-même que le patron de la manière dont sont comprises et vécues toutes les relations sociales. En témoigne l’importance accordée au fisc et le lien entre fiscalité et comptabilité qui n’est pas du tout le même dans les deux cultures. Dans le modèle culturel anglo-saxon, le pouvoir est toujours second et donc secondaire. Il le devient encore plus dans la culture américaine en raison de son hostilité historique à l’égard du pouvoir central de l’Etat (une fois de plus, cette particularité historique la met en bonne position pour affronter la mondialisation qui est un fédéralisme forcé sans centre, sommé de fonctionner sans Etat de surplomb). Il n’est donc pas possible de limiter l’analyse des rapports internationaux à une hégémonie culturelle américaine. L’adoption de telles normes résultent aussi de l’évolution du capitalisme mondial. D’ailleurs, ce n’est pas seulement le capitalisme qui engendre ce type de rapports, c’est aussi ce type de rapports engendré par la culture anglo-saxonne qui a permis l’éclosion de ce type de capitalisme financier. On peut considérer que si le modèle de l’entreprise et de la comptabilité anglo-saxon l’emporte, c’est parce qu’il est plus moderne que l’autre, plus efficace d’un point de vue économique, mieux adapté au capitalisme contractuel. Mais il est possible également de jeter un regard d’anthropologie culturelle sur ces divergences: il y a bien de la culture et pas seulement de l’économie même si celle-ci est intimement liée à la configuration du capitalisme. Et ces deux points de vue peuvent

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être soutenus en même temps. L’homogénéisation des normes comptables traduirait donc à la fois l’influence d’une culture anglo-saxonne, mais également une avance s’il est vrai qu’il est inscrit dans les sociétés modernes de passer progressivement du statut au contrat (Maine, 1917). Le contrat est, en tous les cas, mieux adapté au contexte de la mondialisation (qui oblige des étrangers à faire du commerce entre eux). *** Une culture décentralisée, qui préfigure une partie de nous-mêmes, qui invoque la morale, qui contient des outils aussi adaptés à la mondialisation, ne peut susciter les mêmes réactions qu’une culture centralisée, tournée sur elle-même et non démocratique, qui impose ses coutumes (et non une morale) et dont les mécanismes sont hostiles à toute ouverture au monde. Parce qu’elle exporte autant des procédures qu’une substance, autant une moralisation des relations internationales que du business, autant une distance interne qu’un pouvoir central, la culture américaine nous livre à la fois un pouvoir et des contre-pouvoirs, elle annonce une certaine oppression mais aussi une certaine libération. Elle ne se borne pas à museler les pouvoirs étatiques, elle installe aussi des juristes. Elle dépolitise certes les pouvoirs locaux mais permet de repolitiser autrement les rapports internes. Cette culture juridique, de par son caractère démocratique, n’exerce pas qu’une simple domination, elle contribue à rénover la démocratie par un effet d’exemple, de source d’inspiration voire d’autorisation. Cette culture circule, donne des idées, permet de comparer, pousse à innover. Non seulement, elle crée de l’espace, mais elle libère aussi l’imagination. Elle s’impose à nous comme un pouvoir, libre à nous de nous en emparer pour la transformer en autorité. Une autorité globale qui s’imposera à tous, jusqu’à ses propres auteurs. REFERENCES Berman, HJ (1997) Law and Revolution. The Formation of the Western Legal Tradition (Cambridge, Harvard University Press). Cadiet, L (2001) Archives de philosophie du droit, 45 (Paris, Dalloz). Colasse, B (2004) ‘Harmonisation comptable internationale. De la résistible ascension de l’IASC/IASB’ Gérer et comprendre 75. D’Iribarne, P (1998) Cultures et mondialisation. Gérer par-delà les frontières (Paris, Seuil). Eizenstat, SE (2004) Une justice tardive. Spoliations et travail forcé, un bilan de la Seconde guerre mondiale, Préface d’Elie Wiesel, trad de l’américain par Cécile Déniard (Paris, Seuil). Hénaff, M (2002) Le Prix de la vérité. Le don, l’argent, la philosophie (Paris, Seuil). Ignatieff, M (2005) American Exceptionalism and Human Rights (Princeton, Princeton University Press).

92 Antoine Garapon Kagan, R (2001) Adversarial Legalism. The American Way of Law (Cambridge, Harvard University Press). Langer, M (2004) ‘From Legal Transplants to Legal Translations: the Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure’ Harvard International Law Journal 1. Lefort, C (1986) Essais sur le politique. XIXe-XXe siècles (Paris, Seuil). Maguire, P (2001) Law and War, an American Story (New York, Columbia University Press). Maine, HS (1917) Ancient Law (London, Dent). Mattei, U (2003) ’A Theory of Imperial Law: A Study on U.S. and the Latin Resistance’, Indiana Journal of Global Legal Studies 395. Muir Watt, H (2003) ‘Privatisation du contentieux des droits de l’homme et vocation universelle du juge américain: réflexions à partir des actions en justice des victimes de l’Holocauste devant les tribunaux des Etats-Unis’ Revue internationale de droit comparé 898. Neuborne, B (2002) ‘Preliminary Reflections on Aspects of Holocaust-era litigation in American courts’, Washington University Law Quarterly. Pasquino, P (1998) préface à Carl Schmitt, Parlementarisme et démocratie, trad. De l’allemand par J-L Schlegel (Paris, Seuil). Souty, F (2004) ‘La cour suprême des Etats-Unis et les pratiques anticoncurrentielles mondiales: réflexions sur les arrêts Empagram et Intel v. AMD’, Les petites affiches, 189. Troeltsch, E (1991) Protestantisme et modernité, trad de l’allemand et préfacé par Marc B de Launay (Paris, Gallimard). Weber, M (1986) Sociologie du droit, traduction de Jacques Grosclaude (Paris, PUF). Weber, M (2001) L’Ethique protestante et l’esprit du capitalisme. Traduction inédite et présentation par Isabelle Kalinowski (Paris, Flammarion). Whitman, JQ (forthcoming) The origins of Reasonable Doubts: Religious Roots of the Criminal Trial (New Haven, Yale University Press).

4 Globalisation and the Rise of Procedural Informalism in American and European Law* WOLF HEYDEBRAND

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t is argued that there is a close historical and structural correspondence between the emergence of informal, flexible, and soft legal procedures in American and European law and the process of political and economic globalisation. The continued significance of procedural informalism during the current round of globalisation is attributed to the strategic combinations of formal adjudication and informal bargaining as well as hard and soft procedures insofar as they tend to expand the scope of discretion in legal, political and economic decision-making and governance. Procedural informalism is therefore of critical interest not only to judges and lawyers, but to organisational policy-makers in administrative, commercial, and international law, domestic courts and government agencies, institutions of international governance, and transnational corporations that seek to expand the scope of discretion and control while trying to reduce the level of uncertainty and transaction costs in their respective institutional domains.

I. INTRODUCTION

This paper explores two related propositions about the interface between law and the political economy. First, there has been a secular trend in the growth of informal, flexible, and soft versions of legal procedure and decision-making in American common law and, to a lesser extent, in * Paper presented at the First European Socio-Legal Conference, International Institute for the Sociology of Law, Onati, Spain, July 6–8, 2005. I am grateful to Elizabeth Chambliss, Oscar Chase, Baerbel Dorbeck-Jung, Volkmar Gessner, Christian Joerges, David Nelken, Carroll Seron, David Trubek and two anonymous reviewers for helpful comments on an earlier draft. Please, adress all correspondence to [email protected]

94 Wolf Heydebrand continental civil law in the twentieth century. Second, this secular trend is significantly influenced by the processes of political and economic globalisation. Following Bryant Garth (1982: 183–84), I refer to the developments in law and justice as ‘procedural informalism’, notably, the rise of informal alternatives of dispute resolution (ADR) such as arbitration, mediation, and negotiation, and correspondingly, a relative decline of the procedural formalism of judicial adjudication. The growth of procedural informalism is distinguished not only from the procedural formalism of adversarial legalism, but from the growth of substantive law-making, legislation, and regulation. While the substantive ‘law on the books’ may well have been ‘abounding’ on both sides of the Atlantic (Galanter, 1992), and may actually expand as a result of globalisation, this paper focuses on the rise of procedural informalism and the relative decline of procedural formalism. Garth ascribes the rise of procedural informalism largely to the crisis of the twentieth century welfare state and related efforts to make ‘rights effective’, to resolve disputes through conciliation, and to alleviate court congestion by means of diversion of cases from litigation and adjudication to alternative forms of dispute processing (Garth,1982: 186–201). I shall argue, however, that as a secular trend, procedural informalism—or what Max Weber (1966: 303–21) had called the ‘anti-formalistic tendencies of modern legal development’—emerged before 1900, ie, before the full expansion of the welfare state in the twentieth century. Similarly, the legal historian Morton Horwitz (1992: 33) argues that in the US, the transition from the formalist structure of ‘classical legal thought’(1870–1905) to the more informal character of ‘progressive legal thought’ was marked by the critical response to the liberal-legalist US Supreme Court decision of Lochner v New York (1905) and, one might add, by Roscoe Pound’s (1906) famous critique of adversarial legalism as ‘the sporting theory of justice’ (see also Pound, 1909). Moreover, not only did procedural informalism pre-date the welfare state, but it continued to expand after the incipient decline of the welfare state in Europe and America in the late twentieth century. From the vantage point of the new millennium, then, it was the larger movement of the global expansion of the political economy of capitalism, including the trajectory of the regulatory welfare state and other events in the twentieth century, that gave rise to, and kept reinforcing, the trend of procedural informalism. I first discuss two familiar categories of legal theory—form and substance—that help to define certain structural parallels and differences between Europe and the United States (I). In contrast to form and substance, I develop the idea of process as a third category of legal theory. Of central significance here is the concept of process rationality or the logic of negotiated process. I discuss several features of the decision-making framework of the logic of negotiated process, notably informal, flexible procedures, the expansion of the scope of discretion by combining formal and

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informal procedures, situational jurisprudence and ad hoc decision-making in social networks, as well as alternatives to these options. I also discuss the possibility of pursuing substantive goals through procedural decisions and reforms and the emergence of ‘soft law’ and procedure in its dynamic interaction with ‘hard law’. All of these options serve to expand the scope of discretion in legal, judicial and political decision-making (II). I then turn to a brief discussion of the relevant changes in the political economy of globalisation and its tension with the rule of law (III). To support my claim of a causal link between legal development and globalisation, I discuss two types of evidence: certain key events in the recent history of jurisprudence on both sides of the Atlantic and a series of descriptive statistics on the rise of alternative dispute resolution (ADR) and the decline of civil trials in American courts (IV). Finally, I critically engage Robert Kagan’s hypothesis about the persistence of adversarial legalism in the United States (V). The last section offers concluding arguments and a brief discussion of deviant cases, countervailing tendencies and other negative evidence (VI). II. FORM AND SUBSTANCE AS LEGAL CATEGORIES

Formalism The category of legal form refers to the system of formal legal procedure that dates back to the middle of the nineteenth century. In continental Europe, this phase is identified with the rise of the law-based nation state, notably the post-revolutionary French ‘droit administratif’ (Labayle, 1995; Van Caenegem, 1987) and the German ‘Rechtsstaat’ after 1848 (Weber, 1966). Weber defined formal legal rationality as logically expressing its rules by the use of abstract concepts created by legal thought itself and conceived of as constituting a complete system. To the extent that law was based on general norms independent of politics and religion, it was defined as rational and formal. Thus, following the lead of the Pandectist reformers of Roman law in the mid-nineteenth century, formal law was seen as a nonideological, quasi-scientific, normative system that was compatible with the economic value of economic efficiency in industrial capitalism, but strictly separated from political, moral and religious values (Wieacker, 1968). In the US, this first phase is identified with the institutionalisation of what Robert Kagan has called ‘adversarial legalism, the American way of law’. According to Kagan (2001: 9), adversarial legalism is marked by a procedural formalism that involves formal legal contestation and litigant activism in a democratic political context, namely fragmented and decentralised governmental authority and relatively non-hierarchical, or ‘heterarchical’, distributed control. These structural characteristics of adversarial legalism are seen as ‘a product of American legal culture’ (2001: 14). Without referring to a particular time period, Kagan (2001: 15) argues that ‘the deeper

96 Wolf Heydebrand roots of adversarial legalism ... derive from broader American political traditions, attitudes, structural arrangements, and interest group pressures’. The historical and political context of American adversarial legalism and formalism, then, was the night-watchman state of nineteenth century individualism and economic liberalism that used political parties and the court system to define its stateness (Skowronek, 1982). However, this idyllic vision of American political and legal arrangements was not to last. The first major disturbance emerged from the economic and racial preconditions of the Civil War, ie, the problems of an agricultural economy based on slavery. Toward the end of the nineteenth century, corporate industrial growth and internal conflict between the capitalist market and the democratic state generated the political demand for social, legal and economic regulation. External competition with the remnants of the British Empire and rivalry with new militant contenders on the international scene, notably Russian state socialism after World War I, and German nationalist socialism and World War II, compelled the US to turn its attention outward. These internal and external dynamics led to the development of a national administrative state and an early version of informal American empire during and after the Progressive Period (Skowronek, 1982).

Substantive Legal Rationality and Proceduralism These well-known changes in the political economy ushered in a second phase of legal development. It is characterised by the emergence of statebased, substantive legal rationality which was dominant for about 70 years of the twentieth century, roughly from 1919 to 1989. Weber had defined substantive legal rationality as guided by the principles of an ideological system other than that of law itself, eg the power politics of nation states, or a theocratic polity. The clearest examples of substantive rationality are state-socialist legality and the shari’a of theocratic Islam. To the extent that substantive law was based on general norms grounded in political or other ideologies, it was deemed rational but not autonomous or formal. Therefore, substantive procedure has a tendency to slide into the ‘non-rational’ sphere of concrete case law, ‘situational jurisprudence’ and pragmatic, situated, and contextual decision-making (Wells, 1991; Scheuerman, 1999). Weber was keenly aware that formal, substantive, and informal procedures tended to co-exist in a state of rivalry or conflict (Weber, 1966: 319–21). Substantive justice is by definition ‘de-formalised’ relative to the criteria of legal formalism, but it is nevertheless a form of ‘hard’ justice insofar as courts, judges, and the procedures of implementation and enforcement are beholden to the executive organs of the state or to the functionaries of an ideological system. While the non-formal character of substantive justice does not make it ipso facto ‘informal’, especially since substantive justice

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tends toward coercive enforcement, and informal justice toward bargaining and negotiation, both informalism and substantive rationality raise issues of accountability, the separation of powers, judicial review and a meaningful distinction between positive law and supra-statutory morality. Specifically, both may deviate significantly from the normative meaning of the ‘rule of law’, namely that legal norms are general in character rather than case-specific and situated, relatively clear and precise, public and translucent rather than private and secret, prospective rather than retroactive and relatively stable in the short term. The ‘rule of law’ requires that a line be drawn between legality and illegality, regardless of whether it is substantive, formal or informal. From the point of view of the rule of law, then, the Nazi atrocities and Stalinist absolutism, among others, cannot be reconciled with any concept of law and justice, even when the contradictory notion of ‘justice within injustice’ is invoked for descriptive purposes (Stolleis, 1994; Joerges and Ghaleigh, 2003). But there were other contingencies. Internationally, the development of a military-industrial complex in the context of the inter-imperial rivalry of the Cold War from 1949 to 1989 and the economic, political and legal reconstruction of Europe challenged the formalist conventions of continental civil law (see also Eichengreen, 1995). Even in a constitutional democracy (or democratic republic) like the United States, the expansion of executive power via the national security state during the Cold War tended to generate a growing rivalry between formal and substantive law and between substantive and procedural rules. Domestically, the American regulatory welfare state in the form of the New Deal had developed an anti-formalist penchant for legal realism, pragmatism, political bargaining, negotiated rule-making, and a strong legal profession committed to controlling both formal litigation and informal negotiation. Yet it is also true that the Warren Court, the Legal Process approach and neo-liberal constitutional constructionism can be seen as producing formalist and constitutionalist episodes that counteracted substantive and informalist legal rationality (Kennedy, 2003: 637). III. THE LOGIC OF NEGOTIATED PROCESS1

Since the late 1960s, the categories of formal and substantive law and justice have been augmented by the development of a third category of 1 The terms process and logic of process are not to be confused with the notion of ‘due process of law’ (or ‘fair process’ in the UK, see Richardson, 1994:123) which is a procedural civil right under the 14th Amendment to the US Constitution. Nor should it be confused with the notion of ‘public law process’ which ‘can cover both the structure and the procedure of all the bodies involved in the evolution and the application of policy’ (Richardson, 1994: 105). There are, however, subtle conceptual affinities between the logic of negotiated process and the ‘realist’ residues of the jurisprudence of ‘the legal process’ (Hart and Sacks, 1958), as well as the continental concept of ‘proceduralisation’ discussed in Note 3, below.

98 Wolf Heydebrand legal rationality and decision-making, namely, ‘informal justice’, alternative dispute resolution (ADR), ‘process rationality’, or the logic of negotiated process (Heydebrand, 2003a). The ‘informal justice’ movement had emerged—together with other ‘liberation’ movements—as part of the domestic transitions of the 1960s and 1970s (Nader, 1980; 1989; Abel, 1982; Delgado, 1988; Adler, 1993; Chase, 2005; but see Auerbach, 1983 who locates ADR already in earlier periods of American history; and Gulliver, 1979, for a cross-cultural perspective). In addition, a new type of transnational procedural informalism and flexibility, so-called ‘soft law’, soft procedure, soft regulation, or self-regulation, has emerged since the 1980s and 1990s. This approach has become prominent during the contemporary round of globalisation since 1990/1991. The decision-making framework of the logic of negotiated process is characterised by the following features that are relevant to my argument.

Informal, Flexible Procedures The logic of negotiated process is an historically relatively new model of rational decision-making beyond the dualistic framework of formal and substantive rationality. This logic is intentionalist and strategic and must be sharply distinguished from the non-rational informalism of traditional communal groups and societies. In contrast to both formal and substantive legal rationalities, the logic of negotiated process is informal, flexible, interactive, dialectical, reflective and seemingly participatory and democratic. Compared to conventional forms of institutional policy-making and government, governance based on negotiated process rationality consists of a series of informal, privatised, pragmatic and expedient strategies of ad hoc problem-solving and crisis management (Rosenau, 1992; Aman, 2001; Kellett and Dalton, 2001; Hall and Bierstecker, 2002; see also Treib, Baehr, and Falkner, 2004, on coercion, voluntarism, targetting, and framework regulation as modes of governance). While decisionist procedural informalism appeared initially as a deviation from the formal model, it soon acquired an independent, positive valuation and began to reinforce the ideas of the ‘free-law’ movement and legal realism, especially the new emphasis on the need for expanded discretion in judicial decision-making.

Expanding the Scope of Discretion by the Option of Combining Informalism and Formalism The hallmark of process rationality is the expansion of the scope of strategic discretion in almost all forms of political, legal and judicial decisionmaking, including dispute processing, law-making, and policy-making.

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Informalism and soft decision-making are not just ‘nicer’ ways of doing law and justice compared to Malcolm Feeley’s (1979) notion that ‘the process is the punishment’. Nor is informalism merely the displacement of formalism, but the dynamic source of contradictions between formal and informal control (Spitzer, 1982). Based on his analysis of these contradictions, Steven Spitzer offers a critical analysis of ‘the concentration of power and the dispersal of control’, specifically of the question ‘why so much of the scaling down that characterizes modern social control actually serves an increasingly integrated system of making and implementing control decisions’ (Spitzer, 1982: 187; see also David Garland’s (2001) more recent analysis of the ‘culture of control’). The mechanism of expanding the scope of strategic discretion is constituted and empowered by the built-in option of combining and integrating formal and informal, as well as hard and soft elements in decision-making. Thus, the ‘deformalisation’ of legal procedure described in Weber’s account of anti-formalism is only one part in the expanding scope of discretion. The other part is the continued legitimate capacity and potential for the use of formal rules and substantive political, legal and constitutional principles that can be invoked at the discretion of the decision-maker as well as by judicial review. Moreover, general clauses, vague legal concepts, ‘ad hoc’ policies, administrative prerogatives and political objectives can be used to bracket or override normative rules, legal precedent, codified law and international conventions (Neumann, 1957; Fraenkel, 1941). The controversial Patriot Act and the bracketing of the Geneva Convention in dealing with suspected terrorists are contemporary examples. Like Spitzer (1982), Abel (1982) criticised informal justice in terms of its contradictory ‘functions’. On the one hand, for example, the early 1970s saw the deregulation and incipient privatisation of government-business relations as well as procedural reforms and informal alternatives to the criminal process in the form of plea-bargaining. On the other hand, informalism showed its contradictory character in terms of its ‘contribution to state repression and capitalist exploitation and its potential for liberation’ (Abel, 1982: 270). Among the ‘latent functions’ of informal justice, Abel identifies the expansion of state control, managing and neutralising conflict, including the denial of redress, redistributing state resources, advancing the interests of professionals and legitimating state and capital. Abel concludes that ‘state informal justice under advanced capitalism is constructed out of contradictions’ and therefore ‘peculiarly resistant to criticism’(1982: 307). Using informal bargaining and negotiation in the context of binding legal and constitutional rules has the effect of multiplying the procedural options available to the decision-maker and expanding the scope of discretionary action. For example, by drawing parallels between ‘harmony ideology’ and the transnational ‘peace process’, Laura Nader (2002: 120–36) shows the ‘harmony legal model’ to ‘operate as control by limiting the playing field to

100 Wolf Heydebrand a recurrent dialectic between legality and its alternatives ... [and that it is] by means of binary thinking, as in the move from the adversarial law model to the harmony model, that legal remedies are controlled at the local and international levels’ (also see Mattei, 2003: 416–25; Merry and Brenneis, 2003; and Chimni, 2004). Finally, the contradictory co-existence of formal rules and informal bargaining and the joint effect of substance and procedure are exemplified by the notion of ‘bargaining in the shadow of the law’ (Mnookin and Kornhauser, 1979; Erlanger, Chambliss, and Melli, 1987; Mnookin, Peppet, and Tulumello, 2000). From the perspective of the economic analysis of law, formal legal rules can be transformed into resources, bargaining endowments and incentives that are useful in rational decision-making (Kornhauser, 1989). As Erlanger, Chambliss, and Melli (1987: 586) put it: ...flexible, informal settlement is said to occur ‘in the shadow of the law’, that is, within legal limits provided by judicial review. Thus, the informal settlement process has in part a ‘best-of-both-worlds’ reputation, potentially combining the consistency of legal standards with the opportunity for flexible and case-by-case decision-making.

However, the authors caution that the causal chain between formal constraint and informal process may be more complicated: ...in litigation, judges may be following the patterns they see in informal settlements rather than the other way around; thus instead of ‘bargaining in the shadow of the law’, one should refer to ‘litigating in the shadow of informal settlement. (ibid)

Situational Jurisprudence and Ad Hoc Decision-making in Social Networks The logic of negotiated process is organisationally anchored in minimally structured informal social networks. The political and economic bargaining characteristic of a negotiated process is typically embedded in a network-like structure-in-process which can easily accommodate the ad hoc, informal decisionism of situational jurisprudence (Neumann, 1986; Scheuerman, 1994; 1999). Social networks are simple structures in flux in the sense that they consist of private, interpersonal, informal and flexible social relations, are often opaque and clandestine, and are essentially unaccountable in terms of conventional criteria of formal responsibility. Such criteria are usually defined in terms of either precise legal rules, normatively binding obligations, legitimate power and organisational authority based on election or appointment, the delegation of authority and responsibility vertically or laterally to third parties or to subordinate units and levels (decentralisation

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and subsidiarity), and the periodic oversight by the representatives of a democratic constituency (see also Abbott, Keohane, Moravcsik, Slaughter, and Snidal, 2000 on obligation, precision and delegation as characteristics of legalisation; and Grant and Keohane, 2005 on accountability). Informal networks, by definition, do not operate according to such organisational or institutional criteria. Small social networks, moreover, are shielded from the so-called ‘discipline of the market’ insofar as they can engage in oligopolistic or monopolistic practices with contractual impunity and, indeed, with relative immunity. As a result, economists view small informal bargaining networks as ‘externalities’ that constitute imperfections in the classical concept of the market (Katz and Shapiro, 1985; see also Williamson, 1996, on the problem of ‘small numbers bargaining’ in networks). For example, unaccountable network practices may imperceptibly shade over into collusion and corruption such as insider trading and pricefixing among formal legal actors or business partners, thereby also creating conflicts of interest and corrupting the ethical underpinnings of professions like law, accounting and management consulting that are instrumental in facilitating or hiding the corrupt practices involved (see, eg, Garth, 2004; ENRON.con, 2004; Mattli and Buether, 2005; Tillman and Indergaard, 2005). Generally, informal social networks are flexible and transient in that they are capable of reconstituting themselves in various forms of recombination. They can easily exploit the network-based opportunity—legendary in cases of espionage, deviance, crime and now transnational terrorism—to engage in covert operations within and without the state and to use ideological or instrumental manipulation under the guise of loyalty, intimacy and trust (Strange, 1996). Social networks are non-institutional structures that can operate inside or outside a given institutional context. Networks typically facilitate the formation, communication, and easy transfer of process-based decisions among organisational positions and institutional levels insofar as official decision-makers typically participate in both formal settings and informal networks at the same time (eg, Useem, 1984; Granovetter, 1994). Moreover, they can promote as well as conceal and deflect the investigation or prosecution of real or perceived institutional corruption, deviance and crime. This capacity for consensual institutional deviance, transnational crime and corruption, including the proverbial in-group solidarity of the Mafia, the police or the professions, exemplifies the decisive competitive advantage of network-based, process-oriented forms of negotiation, communication and decision-making, especially in the age of the Internet and the availability of sophisticated information and communication technology. A crucial and highly problematic aspect of this informal process is that just as members of informal circles, webs and networks are not automatically ‘equals’, the partners in process often have unequal bargaining power

102 Wolf Heydebrand and thus may disregard or circumvent typical conventions such as the norm of reciprocity or mutual social obligations. The asymmetries and imbalances of power are recognised by network analysis, but they are often ignored or unwittingly assimilated to ‘a market discourse that arguably narrows the role of non-economic values in decision-making processes’ (Aman, 2003: 125; 1998: 791–816). In view of the tacitly assumed ‘equality’ among partners in exchange relations, it is this lacuna of theorising power that leads one to be sceptical about the putative ‘democratic’ and ‘participatory’ character of informal network processes.

Alternative Options of Expanding the Scope of Discretion Sequential Discretion or ‘hard law but soft procedure’ In many decision-making practices, the scope of discretion can be expanded not only quantitatively, but also qualitatively. For example, discretion is expanded sequentially when different discretionary decisions can be made at different stages of a legal procedure. Thus, a prosecutor or juvenile court judge can impose a harsh regime by trying juveniles as adults, but at a later stage choose not to enforce it due to mitigating circumstances or the need to appear ‘responsive’ to family-oriented constituencies (Kupchik, 2003). Another example comes from ‘judicial intervention in international commercial arbitration’ (Bermann, 2003). Bermann (at 365–66) explains that: [S]ince arbitration is driven by a purpose to substitute private for public adjudication, one might suppose that disputes arising out of international agreements containing arbitration clauses will not likely find their way into national court. This, however, is far from the case.... The moments of interaction between arbitral and judicial procedures may occur at different stages of the arbitral process: before commencement of the arbitral proceedings... during arbitration....as well as after an arbitral award has been rendered.

Simultaneous Discretion Discretion can be expanded by simultaneously claiming constitutional authority for the legality of negotiated rule-making and, at the same time, permissive decision-making because of the local need for strategic discretion and flexibility. An example is the modus operandi of the Federal Reserve Board’s ‘Open Market’ Committee where its former chairman, Alan Greenspan, in a televised hearing before the US House Ways and Means Committee, claimed that the overriding need for decisional flexibility was constitutionally protected. Suspending a decision between constitutional authority and an ‘objective constraint’, he argued,

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is tantamount to legitimating an indeterminate situation as grounds for justifying a situational decision. Members of the Critical Legal Studies movement have, of course, long held the view that modern (realist) judicial or quasi-judicial decision-making is characterised by indeterminacy (eg, Kennedy, 1998). Selective or Strategic Discretion Discretion can be expanded selectively or strategically, for example, when ordinary police or prosecutorial practices are used for purposes of ‘strategic enforcement’ or ‘strategic leniency’. Such a mode of decision-making permits a high degree of elasticity in the enforcement of rules as a matter of policy. Strategic enforcement is equivalent to the imposition of a local ‘state of exception’ under certain conditions, the definition of which is itself discretionary (Skolnik, 1966; Feest and Blankenburg, 1972). Technocratic decision-making has often been compared to political decision-making in the guise of invoking ‘objective constraints’, the protection of the ‘national interest’, or the state of economic emergency (Scheuerman, 2000). Sometimes, however, it is sufficient to invoke ‘tradition’. In a recent decision, the US Supreme Court has upheld a broad definition of police discretion in a case of under-enforcement of a mandatory arrest statute. The key affirmative comment by SC Justice Antonin Scalia was that ‘a well established tradition of police discretion has long coexisted with apparently [sic!] mandatory arrest statutes’ (NYT, 6-28-05, A 17). Alternating Between Discretion and Non-Discretion Finally, discretionary decisions can alternate among different strategic options, thus producing a quasi-dialectical hard-soft-hard pattern (carrot/ stick, good cop/bad cop). For example, the US Department of Justice can publicly commit to being bound by the rules of the Geneva Convention on the torture of prisoners, yet privately (or secretly) exempt cases which are defined as exceptional due to special circumstances, or being ‘protected’ by executive privilege. In another venue, large private corporations and other repeat players can afford to risk a complex, unpredictable jury trial, or alternatively, pursue a policy of holding out for ‘legal change’ (Galanter, 1974; Lempert, 1999). A recent survey of German business executives shows that 80% of the respondents believed traditional court procedures to be contrary to their interests, and that 83% had some experience with ADR. The ‘hybrid procedures’ of ADR were seen as expanding the scope of discretionary action, even though there was still some reluctance to use informal mediation, negotiation and settlement as a matter of course (Nestler and Breidenbach, 2005; also Luedemann, 1992).

104 Wolf Heydebrand Discretionary Procedure in Domestic and International Venues The expansion of the scope of discretion in procedural decision-making also comes in different venues and settings. For example, Galanter (2004: 519) argues that ‘modern procedure has conferred on trial court judges broader unreviewed (and perhaps unreviewable) discretion. This discretion has been used to shape a new style of judging, frequently referred to as “managerial judging”’ (see also Resnik, 1982; 1986; 1994; 2004; Elliott, 1986; Yeazell, 1994). Galanter (2004: 519) quotes Jonathan Molot (1998: 963) to the effect that ‘the discretion of trial judges has expanded partly because of increased complexity but even more so from the multiplication of discretionary procedural, evidentiary, and management decisions’. Galanter continues, still quoting Molot, that ‘while judicial leeway in deciding legal questions may contribute to litigation uncertainty, this uncertainty pales in comparison to that generated by purely discretionary management decisions’ (p 519, fn 111). Other observers have commented on the phenomenon of expanded discretion through ‘judicial globalization’ (Slaughter, 2000), the ‘global expansion of judicial power’ (Tate and Vallinder, 1995), and the expanding power of courts as agencies of US hegemony, as noted above. In all of these situations, law can be had ‘both ways’, ie, hard-but-soft, insofar as the contradictory nature of a given decision can be suspended and thus legitimated at a higher level of justification so as not to appear completely arbitrary. Pursuing Substantive Goals Through Procedural Decisions and Reforms The classical distinction in doctrinal law between substance and procedure (or norm and method) raises the question to what extent the boundaries between them may have become blurred, thus creating an additional option for discretionary decision-making. Thus, Bryant Garth (1982:184) speaks of an ‘increasing interest in pursuing substantive results through procedural reforms’, an observation supported by the vast literature on the reforms of civil procedure in American state and federal courts as well as in European courts and legislatures (Cappelletti, 1971; Cappelletti and Garth, 1978; see also Bender’s ‘Stuttgart model’ of civil procedure, and Chase, 2005, on the judicial and legislative role in the growth of ADR). Among the many examples cited by Chase are the intermittent updating and strengthening by the Supreme Court of the Federal Arbitration Act (originally 1925) between 1967 and the 1990s, and legislative reforms such as the Dispute Resolution Act (1980), the Judicial Improvements and Access to Justice Act (1988), the Civil Justice Reform Act (1990), the Administrative Dispute Resolution Act (1990), the Alternative Dispute Resolution Act (1998) and a host of decisions on pre-trial conferences, ‘speedy justice’ procedures giving criminal cases priority over civil ones,

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reducing the size of juries, mandatory court-annexed mediation and arbitration, diversion procedures and mandatory settlement conferences (see also Provine, 1986). The political, economic, and ultimately international sources of the growing interest in the reform of court organisation, civil procedure and efficient case management since the 1970s and 1980s are well illustrated in a series of studies of civil court reform in the United States, the United Kingdom, Italy, and Germany (Provine and Seron, 1988–89). A persistent theme of these reforms, as voiced by the announcement of the British Civil Justice Review in 1985, is the intention to ‘improve the machinery of civil justice … by means of reforms in jurisdiction, procedure and court administration and in particular, to reduce delay, cost, and complexity’ (Plotnikoff, 1988–89: 205).The author shows that Prime Minister Margaret Thatcher’s Financial Management Initiative of 1982 ‘was intended to promote economy, efficiency, and effectiveness throughout government departments’ (p 213). More than a decade later, the Woolf Report documented another review of proposed procedural reforms of the British civil justice system (Lord Chancellor’s Department, 1995). Similarly, in Italy, ‘proposals to improve the civil justice system will require a choice between the goals of due process and efficiency’ (Ferrarese, 1988–89: 168). Assessing the differences between the German and American systems in their propensity toward settlement, Plett (1988–89: 198) argues that ‘Americans seem process-oriented, while Germans seem outcomeoriented’. As for the settlement opportunities during the ongoing process of negotiation during civil litigation (or ‘litigotiation’, Galanter, 1984), Plett argues that ‘it is not surprising that the 1983 Amendment of Rule 16 [FRCP] is directed toward raising the number of in-court settlements. This fits the American idea of settlement: one only has to give the judge more discretion to facilitate (and accelerate) settlement. German judges, on the other side, already have this discretion, including the task of attempting to bring the parties to a settlement’ (Plett, 1988–89: 199). For post-unification Germany, the Law on the Reform of Civil Procedure of 2001/02 is instructive. It promises a ‘major overhaul of the Code of Civil Procedure’ (originally 1879) aimed at ‘strengthening the first instance (trial courts), limiting the second instance appeal, limiting the review appeal on law and procedure, and simplifying the category of miscellaneous appeal’ (Ruehl, 2005: 911). The author’s discussion of this law maintains the convenient fiction that procedural reform is simply an effort to ‘enhance efficiency and transparency by reducing the duration of civil proceedings while at the same time maintaining [a] high level of legal protection’ (Ruehl, 2005). There is no mention of the fact that these procedural reforms have the effect, inter alia, of easing the criteria of procedural justice and expanding the scope of discretionary decision-making of trial judges. This illustrates the idea that ‘the distinction between procedure and substance

106 Wolf Heydebrand is an illusion and cannot be maintained … indeed, procedural rules influence and are influenced by substantive law even as procedural rules refer to highly valued and yet competing norms apart from the substantive norms’ (Minow, 1998: 79). In particular, administrative law and certain other legal fields like commercial, trade and labour law can be seen as quintessentially ‘procedural’ in that their normative content consists of rules regulating such procedural values as accountability, transparency, and participation (see, eg, Cananea, 2003; Cassese, 2005; Harlow, 2005: 25). Hard-but-Soft: Having Law Both Ways?2 Since the notions of hard and soft law have been part of the transnational legal discourse for some time, a brief comment on their relevance to procedural informalism is indicated. The concept of ‘soft law’ refers to ‘soft, flexible, discretionary and ad hoc rules’ that are legally non-binding and unenforceable (Cutler, 2003: 30).The emergence of ‘soft law’ since the late 1980s and early 1990s is, in my view, a transnational version of the trend of procedural informalism. To be sure, there are certain differences; for example, the notion of ‘soft law’ implies a kind of substantive informalism that needs to be distinguished from the procedural informalism of ‘soft justice’ and soft decision-making. The distinction between hard and soft law is often made in terms of a kind of ordinal scale extending between two extreme poles. Abbott and Snidal (2000: 454) speak of a ‘spectrum of international legalization from soft informal agreements through intermediate blends of obligation, precision, and delegation to hard legal arrangements’. Others arrange law and procedures from the conventional ‘hard law’ of treaties and international organisations to intermediate forms, eg, administration based on collective action by transnational networks of government officials, or distributed, heterarchic administration conducted by national regulators, and from there to softer versions like mutual recognition or cooperative standards, administrative action by hybrid intergovernmental-private arrangements, and finally to the other, soft pole of the scale, viz the delegation of regulatory functions to private organisations (Hillgenberg, 2003: 499–515; Kingsbury, Krisch, and Stewart, 2005: 8). As a concept and a set of practices, soft law is typically used to characterise various forms of international governance, transnational interaction and 2 For the subtitle of this section, I have adopted Vasily Kandinsky’s (1927) ‘hard-but-soft’ title of one of his non-objectivist, constructivist paintings. The title suggests the contradictory co-existence of separate, yet interactive elements. It is in this sense that the notion of hard-butsoft law is intended to convey the idea of transcending the binary distinctions between formal and substantive (or material), formal and informal, and law on the books and living law or law in practice in favour of a more interactive image (see also Benvenisti, 2005).

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agreements, harmonisation and mutual adjustment, and the development of voluntary standards of self-regulation and coordination among states, rather than domestic dispute processing (see also Senden, 2004). However, international dispute processing through arbitration has become a staple of large domestic and multinational corporations. As Cutler (2003: 30) argues, ‘soft-law agreements are easier to negotiate, require less compromise, are less restrictive of domestic autonomy and are easier to breach if changing market conditions so require’ (see also Abbott and Snidal, 2000; Cutler, 1999; Scheuerman, 1999). Whether domestic or transnational, however, it is generally assumed that the development of law at the domestic level can inform corresponding developments at the global level (eg, Stewart, 2005), and vice versa, that once established, transnational rules may influence legal arrangements at the domestic level (see, generally, Nelken and Feest, 2001 on legal adaptation and transplants; for the case of international commercial and trade law, see Cutler, 2003; for global administrative law, see Aman, 2001; 2003; Cassese, 2005; Zaring, 2004). Soft procedures have been emerging in transnational social, political, economic and legal networks of administration and regulation (Snyder, 2000a; Slaughter 2001; 2003; 2004). They have been prominent in the development of flexibility (‘differentiation’) of European Union law (Hanf, 2001; Rappenbusch and Hanf, 2001; Papagianni, 2001), in European comitology (Joerges and Neyer, 1997; Joerges and Vos, 1999), in decentralised decisionmaking in the OECD (Salzman, 2005), and in the ‘open method of coordination’ (Trubek and Trubek, 2005; Zeitlin and Pochet, 2005) and ‘reflexive coordination’ (Rogowski, 2006). Some of these developments may be controversial from various points of view (see, eg, Weiler’s, 2001 or Shapiro’s, 2005 critique of technocratic decision-making and the democratic deficit in the European case). It is undeniable, however, that soft procedures have added a new transnational dimension to the rise of procedural informalism. I conclude that these new legal developments in the contemporary phase of globalisation show a decisive expansion of the scope of discretionary power in decision-making. This expansion is based on the combination of formal and informal procedures as well as the ‘hard-but-soft’ options in the use of legal procedures. Significantly, hard-but-soft process rationality is also thought to be associated with a new wave of legal pluralism spawned by globalisation (Teubner, 1997; Slaughter, Sweet, and Weiler, 1998; Snyder,1999; 2000a; Blackett, 2001; Kennedy, 2003). However, the use of the notion of ‘legal pluralism’ in the comparative study of law requires nuanced interpretation and critical scrutiny (see also Santos, 1987). Pluralism is an ambiguous, even seductive term that can mean difference, diversity and differentiation as well fragmentation, anomie and dissolution. As an explanation for some of the ‘positive’ consequences of globalisation, ‘pluralism’ may well be a cop-out. Although an alternative to centralism,

108 Wolf Heydebrand legal pluralism is certainly not identical to democracy. Despite the dominance of American influence, it seems that Europe and America are in the same boat relative to the economic tsunami of globalisation. Thus, with the exception of social welfare, anti-trust and other regulatory policies, the procedural differences between the US and the EU may well be shrinking rather than growing. IV. THE POLITICAL ECONOMY OF GLOBALISATION

In turning now to the political and economic side of the equation, one can observe certain historical parallels or structural homologies among legal, political and economic developments. In the internal differentiation of capitalism since 1850, the high degree of liquidity of finance capital has increasingly enabled it to gain de facto control over productive and commercial capital (for supporting arguments and evidence, see Kindleberger, 1970; Gilpin, 1975; Strange, 1990;1998; Helleiner, 1994; Kapstein,1994; Kirshner, 1995; Cohen, 1996; 1998). Among the many relevant indicators within the development of commercial law is the rise of negotiability of financial instruments like bills of exchange and promissory notes. This was tantamount to the rise of ‘private arrangements whose effect was to increase the supply of money by allowing individuals to agree to substitute their own notes for currency designated by the state’ (Horwitz, 1977: 213). Without going further into the legal and financial technicalities of these processes, I am using the movement of finance capital in the form of foreign direct investment (FDI) as the main criterion for tracing or reconstructing the phases of globalisation (see Bairoch, 2000; Eichengreen, 2003: 13–46 for relevant details). As I have argued elsewhere, globalisation in the form of the transnational expansion and/or stagnation of FDI proceeded in three major phases (Heydebrand, 2003 b: 164–73). Near monotonic growth of FDI under British auspices constitutes the first phase, from the middle of the nineteenth century (1848) to 1913. A second phase, from 1914 to 1989, is marked by a significant slowdown and stagnation of FDI. This phase represents a series of interrupted or blocked movements of finance capital due to wars, international crises and the foreign economic policies of various political regimes, notably the state-sponsored efforts to control the transnational flow of capital (see Helleiner, 1994 on the Bretton Woods episode). In the late 1960s and early 1970s, a number of events began to change the course of American foreign economic policy (Block, 1977; Scherrer, 1999). Among these events were rising competition between the US, Europe and Japan, the costs of the Cold War, the end of the Bretton Woods monetary system, the ascendancy of neo-liberal monetary economic policy over statecentered neo-Keynesian fiscal policy during the Nixon administration, and the incipient weakening of organised labour through technologically based productivity gains, multi-national and transnational outsourcing and new

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international trade and labour policies (Stone, 1995; 1997; Blackett, 2001; Scheuerman, 2001). Last but not least, there has been an incipient retrenchment of the regulatory welfare state under the competitive pressure of global financial interests and American foreign economic policy. American and Western FDI began to rise again in the late 1960s and early 1970s, but it did not surpass the 1913 threshold until after the end of the Cold War in 1989/1991 (Bairoch, 2000). The momentous 1989/1991 transition marks the beginning of the third and contemporary phase of the globalising political economy. Because of the highly charged ideological nature of political interpretations of these processes, their definition is controversial. The transition can be defined either as the emergence of a ‘new world order’ and of the requisite international institutions of governance (Slaughter, 2004; Mattli and Buethe, 2005; Nicolaides and Shaffer, 2005), or the resurgence of a new version of informal American empire (Panitch and Gindin, 2004; Mattei, 2003; Ruggie, 2003), or the urgent need for international financial regulation (Eatwell and Taylor, 2000; Zaring, 2004). The significance of this particular transition is that it is based on a political event—the end of the Cold War—which triggered a series of economic events such as the green light for FDI, various measures of economic deregulation and privatisation, the unprecedented rise of transnational capital flows after 1991 and the subsequent economic boom among selected members of the global triad/ G-8 nations. Each of the three major moments of globalisation sketched above has several distinct sub-periods or segments, but there isn’t room to further discuss them here (but see, eg, Held et al, 1999; Hirst and Thompson, 1999; and Heydebrand, 2003b for the historical details). In the new political context of the 1990s, nation states began to act largely as stakeholders in a transnational process of economic and political competition under the umbrella of the remaining super-power and global governance, with a consequent diminution of the relative autonomy, sovereignty, and resources of the ‘average’ competitive nation state (see also Santos, 2003). Among the many ramifications of these processes are the rise of the ‘informal economy’, the ‘casualisation’ of labour, and the growing economic inequality and asymmetry of power between the advanced and the less developed countries (Portes, Castells, and Benton,1989; for a compelling argument that ‘informalisation’ is intrinsic to the globalising economy, see Crichlow, 2000: 168). The Growing Tension Between the Political Economy and the Rule of Law As is well known, Max Weber tended to emphasise the primacy of law and state in the development of nineteenth century capitalism, although

110 Wolf Heydebrand he deplored the expansion of substantive rights in the twentieth century regulatory welfare state. Yet, Weber did acknowledge a causal connection between socio-economic interests and legal change. As he put it in somewhat crude instrumentalist terms early on in his chapter on Law in Economy and Society, Obviously, any legal guarantee is directly at the service of economic interests to a very large extent. Even where this does not seem to be, or actually is not, the case, economic interests are among the strongest factors influencing the creation of law. For, any authority guaranteeing a legal order depends, in some way, on the consensual action of the constitutive social groups, and the formation of social groups depends, to a large extent, upon constellations of material interests. (Weber, 1966: 37)

The upshot of Weber’s analysis is that formal legal rationality is ‘indispensable’ when it furthers economic competition and corporate contractual interests in the early market stage of capitalist development. But formal law and procedures are seen as obstacles to economic growth and development when economic interests are constrained by, or subordinated to, formal regulations at later stages of corporate and economic concentration. This increasingly contradictory relationship between formal legalism and the political economy has been widely recognised. The deep tension between law and political economy was given renewed expression in 1990 when the Republican former Vice President Dan Quayle exhorted trial lawyers to abstain from litigation so as not to endanger US economic growth and international competitiveness (Kagan, 1994). In the United States, the political recognition of the power of economic interests ushered in the Progressive Era under Theodore Roosevelt and almost a century of substantively oriented economic regulation by the increasingly effective ‘national administrative state’ (Skowronek, 1982). However, the internal tensions between the regulatory welfare state and the frustrated global aspirations of finance capital generated an important impetus for transforming American legal institutions in the direction of delegalisation, deformalisation, privatisation, and procedural informalism. As Scheuerman (1999: 3) puts it bluntly: ‘The rule of law often remains incomplete because the economic giants who have gained the most from globalization benefit unambiguously from discretionary, informal, and situation-specific forms of legal activity’. Nevertheless, the abiding inertia of American constitutionalism and adversarial legalism provided a potent, though gradually weakening counterpoint to the tendencies of informal rule-making, flexible bargaining, and alternative dispute processing (Garth, 1982: 201-02; Kagan, 2001: 10, 44, 122). In continental Europe, similar processes were at work after World War II, but they met with a much higher level of institutional inertia than that of the common law systems of the UK and the US. Nations located firmly

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within the orbit of continental civil law, like France and the post-fascist democracies like Germany, Italy and Spain, in particular, put up a greater degree of resistance to these processes of legal de-institutionalisation than those in the common law orbit. These instances of institutional inertia show that the movement toward procedural informalism has not been unidirectional or monotonic, but rather a secular trend marked by countermovements and intermittent opposition.3

V. THE EMPIRICAL EVIDENCE ON THE RISE OF PROCEDURAL INFORMALISM

There are at least three major ways of gauging the nature and direction of the secular legal change hypothesised here: the use of legal history, of quantitative statistical data and of qualitative case studies (the latter cannot be considered here systematically, but see Appelbaum, Felstiner, and Gessner, 2001; Nelken and Feest, 2001; Dezalay and Garth, 2002a, 2002b).

Turning points in the Historical Emergence of Anti-Formalist Jurisprudence The description of the major historical transitions among legal rationalities from formal to substantive to process in Parts I and II of this chapter

3 European legal theorists see a need to retain certain formal procedural rules when they talk about ‘proceduralisation’of law as an attempt to transcend the ‘material’ (substantive) legal rationality of state regulation. Wiethoelter (1988: 244) defines this process in terms of a procedural rationality that provides ‘impartial justificatory procedures for legal conflict rules’. ‘The notion is of a sort of forum [of substantive impartiality] before which negotiations on transformations of society goes on reconstructively and prospectively’ (ibid). Preuss (1988: 170–71) refers to proceduralisation as the transformation of substantive rights into procedural ones. Given the tendency of this process to favour repeat players over one-shotters, Teubner’s (1983) self-regulatory model of ‘reflexive law’ seems to offer ‘not just a proceduralisation of subjective rights, but a more comprehensive theory of restructuring the process of interest bargaining on the basis of social equality’ (Preuss, 1988: 171). The related concepts of procedural or communicative rationality point to the formulation of a process-oriented model of law-making and judicial decision-making which involves the participants of the legal process in constructive, communicative and socially constitutive relationships (Habermas, 1995). Proceduralisation addresses the political desirability that even though a social democratic rule of law may be substantively diverse, decentralised, heterogeneous, pluralistic, even ‘pragmatic’, it must have a ‘universal’, procedurally formal dimension in order to qualify as ‘the rule of law’ (Dyzenhaus, 2005). As Maus (1992: 253) argues, ‘neither the rightness of law nor the legitimacy of domination can be guaranteed by pre-given substantive principles of justice, but depend on the kinds of (democratic) procedures used to constitute or apply them’. Hence, decentralised, local law-making must be complemented by general procedural norms in the processes of decision-making. Maus believes that ‘there is no substitute for the domestication of court decisions either through legal programs or through a predictable culture of precedents which likewise precedes all concrete cases within the process of adjudication’(Maus, 1996: 878).

112 Wolf Heydebrand has already provided a skeleton framework for the historical part of my argument. The revolt against legal and procedural formalism was generated not only by its shortcomings and limits, but also by the historical alternatives that emerged during the three phases of legal and global change sketched above. I will now provide a summary of the major turning points. Max Weber’s Anticipation and Analysis of the Anti-Formalist Tendencies in Modern Law The first major turning point came shortly after the beginning of the nineteenth century and marks the transition from the formalist to the substantivist or ‘progressive’ phases of legal development. It parallels the transition from the first expansive phase of globalisation (1848–1913) to the second, largely stagnating phase (1914–1989). Taking Max Weber as the observer and reporter up to his death in 1920, we can see that despite his admiration for the achievements of formal legal rationality, he anticipated its decline and commented extensively on the rise of anti-formalism in law (Weber, 1966: 303–21). This discussion is noteworthy for its concrete examples, its political realism, and its pathos of pessimism (also see Kennedy, 2004). Weber invokes four general factors to describe the rise of anti-formalist, substantive law: political, economic, social and legal-professional. He refers to Bismarck’s top-down welfare state, the growth of commodity markets and the organisational metamorphosis of the capitalist enterprise. In addition, he identifies the social class movements toward social democracy and modern jurisprudential developments as themselves containing ‘tendencies favorable to the dilution of legal formalism’. Weber discusses in some detail the decisive ‘shaping of law by trained legal specialists’ and of ‘a rational technical apparatus’, a veiled reference to what Weber, had he known Foucault, might have called legal-technocratic governmentality (Weber, 1966: 304–05; 321). The Russian Revolution and State-Socialist Legality During much of the 70-year period of legal changes following World War I and the Russian Revolution, the political economy of nation states was crucial for framing the substantive rationality of law even as it moved further toward deformalisation and delegalisation. Soviet state socialist legality had declared law as a substantive instrument of the socialist state and its version of class struggle, thereby eliminating both formal legalism and the legal nihilism of Pashukanis (Heydebrand, 1996). Stalinist rule and the Western response initiated what can be called the ‘long cold war’ in the form of a political and ideological confrontation between two supra-national state systems that lasted from 1919 to 1989/1991.

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The Weimar Republic, Statist v Nationalist Socialism, and World War II While all of Europe had to deal with the destructive legacy of World War I, in Germany the transition from the monarchy to the Weimar Republic and to nationalist socialism gave rise to the ‘dual state’, a contradictory combination of formal and substantive legal elements (Fraenkel, 1941). The dual state had begun to justify its own concept of deformalised and deformed ‘legality’ in terms of general clauses and policy objectives that embodied Nazi nationalist and racist ideology (Scheuerman, 1994; 2000; Jacobson and Schlick, 2000). The notion of the dual state referred to the fact that the ‘normative’, formalist character of the German Civil Code of 1900 continued to exist more or less intact, but was augmented (and could be overruled) by the substantive goals of the ‘prerogative’ state, a fact that led to excesses of ‘political justice’ and an unprecedented expansion and corruption of judicial discretion (Ruethers, 1992). However, Neumann (1957) had already suggested that the contractual economic provisions of the Civil Code had been rendered meaningless by rising economic concentration and the collusion between large corporations and the Nazi state (Maus, 1986; Stolleis, 1994; Joerges and Ghaleigh, 2003). Unlike ‘war socialism’ that could arise in any polity threatened by an external enemy, war fascism and the Shoa revealed the face of radical legal deformalisation under absolutist totalitarianism. The New Deal and Legal Realism In the United States, legal realism had emerged in the 1920s and 1930s in response to lingering formalism as well as Roscoe Pound’s sociological and political jurisprudence of ‘social interests’ . Legal realism advocated the further expansion of judicial discretion beyond its common law mould and its ‘responsiveness’ to social change. Karl Lewellyn’s (1930) realist ideas and Eugene Ehrlich’s (1936) notion of ‘law-in-action’ constituted a profound critique of the presumed autonomy of formal law. This realist critique paralleled the one launched by the ‘free law’ school in Europe. The New Deal judge was seen as a policy-maker oriented toward managing change through legal and social engineering (Frank, 1930; Auerbach, 1961). This ‘substantivation’ of law under Roosevelt seemed to tip the balance of power too much toward the executive. In 1946, Congress passed the Administrative Procedure Act (APA), ostensibly to judicialise administrative action within the regulatory agencies. The APA sought to establish procedural rules for administrative adjudication (the process for hearing and deciding controversies), regulatory rule-making, defining the scope of discretion of agencies and specifying judicial review, ie, the standards that courts must apply when reviewing agency decisions (Carter and Harrington, 2000: 38). But as the authors indicate, ‘in many circumstances the APA

114 Wolf Heydebrand permits agencies to act informally without following any prescribed due process. Before cases reach the formal stage, many attempts to resolve them informally have usually occurred. The vast majority of cases never reach formal administrative decision levels at all’ (see also Woll, 1963). While the ‘legal process’ school in the 1950s and 60s sought to counteract or at least channel the institutional ramifications of the informal process, the overall influence of legal realism on procedural informalism and the issue of judicial versus administrative discretion was pervasive (Davis, 1971). Legal Movements in the Shadow of Realism Following the neo-formalist reaction of the ‘legal process’ school against unbridled realism, various substantivist, informalist and populist legal movements arose in the wake of the 1960’s social movements, from civil rights and anti-war protest to feminist and ecological consciousness. In the late 1960s and early 1970s, the Critical Legal Studies movement (CLS) emerged from within American law schools, confirming Weber’s concern that rationalist legal formalism itself would play a decisive role in spawning an anti-formalist critique of legal doctrine and ideology. Of particular interest here are the analysis and critique of adjudication from a formal and substantive perspective (Kennedy, 1998), and the critique of the failure of conventional rights litigation to bring about meaningful change in racial and gender discrimination (Rosenberg, 1991; Williams, 1991; Freeman, 1998; Bell, 2004). The Intrusion of the Cold War, the National Security State, and Vietnam on the Legal Scene After World War II, the Cold War and the division of the globe into three ‘worlds’ had produced a stand-off between the two super-powers. The threat of political conflict and nuclear war led to the National Security Act of 1949 and the McCarthy period. The wars in Korea and Vietnam followed. The civil rights and anti-war protests of the 1960s, the protracted economic crisis of the 1970s and the rising neo-liberal critique of the regulatory welfare state fuelled fears about internal order and external security. The ‘fiscal crisis of the state’ generated political and financial pressures to streamline the administration of justice and to make it more efficient. The Law Enforcement Assistance Administration (LEAA), an outgrowth of the Omnibus Crime Control Bill of 1968, had pumped financial resources into the state court system. Similarly, the Federal judiciary—partly through the technocratic expertise of its own Federal Judicial Centre—sought to improve the management of federal courts, to get judges involved in pre-trial and settlement conferences (Provine, 1986) and to integrate the professional judiciary into a larger civil and criminal ‘justice system’.

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The result of these reform efforts at state and federal levels was the blurring of the constitutional boundaries between executive and judicial branches, prosecutors and judges, and different legal rationalities (Balbus, 1973). The growth of informal judicial procedures was one significant outcome of these efforts, now with the blessings of the judicial elite and the Chief Justice of the Supreme Court (Burger, 1976). The rationale was ‘hard-but-soft’: the ‘new informal justice’ was viewed as ‘quality’ justice that could serve as a palliative for the overcrowded courts and the organisationally challenged legal system. Interim Conclusion on the Rise of Procedural Informalism By way of concluding the description of the historical trajectory of procedural informalism, I want to distinguish three levels of analysis. At the level of the ‘living law’ and concrete practices of decision-making, the most important forms of procedural informalism-in-action are the ADR movement and the gradual displacement of adjudication by negotiation, mediation and arbitration as the new general models of dispute processing (Nolan-Haley, 1992; Adler, 1993; Cappelletti, 1993). The initial diagnosis of the problem was offered by Laura Nader (1979; 1980) to the effect that conventional formalism resulted in ‘no access to law’ for underprivileged minorities and that new alternatives were needed. At the level of doctrinal informalism or ‘informalist scholarship’ (Brigham and Harrington, 1989: 42), the informalist discourse includes the decline and demise of contract (Atiyah, 1978; 1979), the evolution of ‘relational contract’, the proliferation of non-contractual relations in business and in ‘private interest government’, and the transformation of corporate and labour law in the twentieth century political and economic context (Dau-Schmidt, 1992; Blackett, 2001). The relations between business and government also became more informal due to regulatory oversight and the transition from the ‘delegation-of-powers doctrine’ to ‘negotiated rule-making’ in administrative law and the regulatory commissions (Aman, 2001; 2003; Freeman, 2000a, 2000b; Freeman and Langbein, 2000; Harter, 2000). Administrative negotiation and ‘litigotiation’ were to relieve the federal courts of burdensome tasks, but they may have indirectly stimulated and complicated the processing of administrative appeals from certain regulatory agencies to the federal circuit courts. One may generally conclude that the dominant ‘incentives’ offered by doctrinal procedural informalism are the ideological appeal of ‘delegalization’ (Abel, 1979; Harrington, 1982, Spitzer, 1982), ‘legal pluralism’ and ‘process pluralism’ (Galanter, 1981; Merry, 1988), and the privatisation of national and transnational legal relations (Dezalay and Garth, 1996; Cutler, 2003; Heydebrand, 2003a). At the third level of analysis, the contemporary round of globalisation from the 1990s onward triggered the emergence of the transnational

116 Wolf Heydebrand expansion of soft law and procedure. Soft procedures have an affinity with self-regulation, voluntary regulation, or co-regulation (Lex Fori, 2004: 2; Graham, 1994). The ‘functions’ assigned to soft ‘law’ range from being a ‘supplement’ to legislation or ‘value added’ to legislation, to the replacement of legislation through pragmatic, expedient and situational decision-making. ‘In a broad sense, all rules other than laws, regulations, and contracts may be referred to as ‘soft law’; in a stricter sense, soft law, drawn up by professionals on their own initiative or in cooperation with consumers or the State.....is a set of instruments applied on a consensual basis; in general, it does not have legal force’ (Lex Fori, 2004). A related consequence of globalisation is the transnational expansion of American common law and its impact on the European Union and the Eastern European reform societies. While these regional legal systems were originally part of continental civil law, they have been increasingly influenced by American procedures since 1989, reinforced by the English tradition of common law in Europe. The outcome of the intra-European competition between civil law and common law is by no means decided, but there are signs of convergence (Wiegand, 1991; Maus, 1996: 878; Werro, 1996). I shall return to this point shortly in my discussion of Robert Kagan’s (2001) hypothesis on the persistence of adversarial legalism. Furthermore, in European Community law, the emphasis on the policies of legal harmonisation, integration, and the ‘direct effect’ point toward a ‘reasonable judicial activism’ that is broader today than in the European countries of 1963 (Witte, 1999: 184, fn 23). The ‘direct effect’ refers to the applicability of an EC legal norm in domestic court proceedings. It is a prime example of substantive law in procedural form and constitutes a significant influence of EC community law on the remnants of the previous systems, including the process by which case law can be seen as modifying legal formalism (Witte, 1999: 209–10; DeBurca, 1992). Finally, international dispute processing has moved progressively toward the arbitration, mediation and negotiation of transnational disputes outside the national legal institutions, but inside the new (post-1990) agencies of transnational governance. This signifies an advance of negotiated process rationality as well as a generalisation of systematic procedural informalism to transnational governance (Snyder, 2000b; Joerges, 1999; 2004; Benvenisti, 2005; Nicolaides and Shaffer, 2005).

The Statistical Evidence on the Transformation of Formal Adjudication A second source of evidence for the trends in procedural informalism in the US is the transformation and decline of conventional forms of adjudication during the second half of the twentieth century. There are at least three empirical indicators that can be consulted on this issue.

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Plea-Bargaining The first indicator is the development and institutionalisation of pleabargaining (together with charge bargaining and sentence bargaining) in criminal procedure in American state and federal courts as well as in certain European settings. In US federal trial courts, the percentage of convictions based on a guilty plea rose from 48 per cent in 1910 to 86 per cent in 1988. The high point occurred in 1950 with 95 per cent guilty pleas (Heydebrand and Seron, 1990: 112). A conviction on a plea of guilty is the product of bargaining between accused, prosecutor, defence counsel and (often, though not always) the judge. Before pleading guilty, the accused must publicly declare that their decision is un-coerced and voluntary, and that they understand that they give up their constitutional right to witnesses, a written record of the procedure, a trial, and any right to an appeal. Thus, given the power imbalance between the accused and the typically network-like and cohesive ‘court room elite’ of prosecutor, judge and (often court-appointed) defense counsel (Nardulli, 1978), the notions of ‘bargaining’ and a ‘voluntary contract’ (Scott and Stuntz, 1992) hide the psychologically coercive nature of the process (Alshuler, 1979; Baldwin and McConville, 1977; Mirsky, 1997). If the accused refuses to bargain, the soft procedural offer of ‘bargaining’ can be revoked, or else, switched to the hard-law fall-back position of a punitive decision. In England, too, defendants before a ‘magistrate’s court’ or a ‘crown court’ (dealing with more serious offences) face the threat of more severe sanctions if they demand a jury trial (Kritzer, 1996: 111). In continental Europe, pleabargaining was not known as such until the 1970s and was seen as a somewhat illicit form of ‘negotiated justice’ or ‘haggling over justice’ (Schumann, 1977). However, German local prosecutors have been given increasing discretion in bringing, withholding, or modifying charges, depending on circumstances and evidence (Blankenburg, 1996: 285; Luedemann, 1992). In France, courts are not a co-equal branch of government, but magistrates have internally a great deal of discretion due to their enhanced ‘investigatory’ or ‘inquisitorial’ role typical of continental legal systems. As Provine (1996: 213) explains, ‘plea-bargaining is not part of the process because of the expectation that trial will occur, whether or not the defendant confesses’. There are no data on the consequences of this circumstance for the rate and organisational burden of trials. However, ‘the French approach to criminal justice avoids many of the pitfalls associated with the more adversarial approach to trial in England and the United States’ (Provine,1996: 216). Trends in Informal Civil Procedure: Negotiation and Settlement Trends in the negotiation and settlement of civil cases and the explicit policy of encouraging and training judges to participate in these processes since 1976 constitute a second example of the transformation of civil procedure

118 Wolf Heydebrand (Provine, 1986). In US federal trial courts, two categories of civil dispositions (excluding trials) merit attention: ‘no action’ and ‘pre-trial’ dispositions both of which reflect the effects of negotiations and settlements. Between 1890 and 1920, ‘no action’ dispositions doubled, hovering at about 50 per cent of all civil terminations (Heydebrand and Seron, 1990: 100, Table 5.1, and 117, Table 5.11). The rate of ‘no-action’ dispositions between 1930 and 1987 was lower, and ranged from 35.5 per cent in 1940 to 44.3 per cent in 1960. However, the permanent decrease in the rate of ‘no action’ dispositions was due largely to the introduction of pre-trial procedures in 1940. Pre-trial dispositions increased from 6,189 (17.4 per cent) in 1940 to 127,765 (53.8 per cent) in 1987. Combining both ‘no action’ and ‘pre-trial’ rates yields an increase in the rate of non-trial dispositions from 52.9 per cent in 1940 to 94.5 per cent in 1987. We can conclude, therefore, that pre-trial hearings and the resulting settlements significantly served to reduce the trial rate. Other studies of the rise of negotiations and settlements confirm the growing use of these practices (Kritzer, 1990; 1991; Galanter and Cahill, 1994; on the spread of ‘managerial justice’ in the US see Resnik, 1982; Heydebrand, 2000: 65–73; but see Stipanovich, 2004 and Menkel-Meadow et al, 2005 on the tension between informal dispute resolution and formal adversary procedures). There are few comparable European data on negotiation and settlement. The most important data set comes from Hazel Genn’s (1988) study of bargaining and out-of-court settlement in the UK. In the British legal system, many cases are diverted to ‘administrative tribunals’ whose ‘principle of operation is supposed to be informality and fairness’ (Kritzer, 1996: 147; Genn, 1993). Similar to the position of ‘administrative judges’ in the US Social Security Administration and other federal agencies, British administrative tribunals play a special role in ‘disputes that arise between the bureaucracy and citizens, for example over social security benefits’ (Kritzer, 1996: 85). This observation supports Garth’s (1982) argument about the welfare state’s role in promoting procedural informalism. But it also raises a troubling question: can there ever be an adequate representation of appellants due to the trade-off between the principles of informality and fairness? Given the lack of systematic comparative data on the incidence and prevalence of ADR in continental civil procedure, a note of caution is appropriate. Some French and German legal experts consider ADR to be relatively insignificant in Europe. For example, the rates of actual arbitration and mediation may be relatively low in comparison to domestic and international court cases. Moreover, there may be cross-national variations in the use of informal procedures within Europe. In Germany, for example, there may be only ‘a few hundred mediation settlements but 2.5 million civil cases in court’ in a given year (Gessner, from personal communication). Thus, it is likely that in the cradle of the civil law (Italy, France, and Germany), informalist trends may be weaker than in Scandinavia, the UK,

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and the reform societies of eastern and south eastern Europe which were influenced by American common law after 1989. The Relative and Absolute Decline of Trials The most significant statistic is the changing rate of civil trials which, of course, complements the changes in the non-trial rate described above. In the US federal courts, formal legal procedures like judicial adjudication and trials have tended to decline to a vanishing point (Galanter, 2004; Resnik, 1986; Heydebrand and Seron, 1990). The decline of trials in state courts has been less dramatic, but the trend between 1972 and 2002 has been similar (Ostrom, Strickland, and Hannaford-Agor, 2004: 756). Civil trial rates in England andWales and the Canadian province of Ontario have also declined to about 1 or 2 per cent, a pattern that ‘may reflect the international focus of alternative dispute resolution’ and ‘ongoing changes in civil procedure’ (Kritzer, 2004: 735). To understand the magnitude of this trend in American federal courts, consider the following data. Civil trials as a percentage of dispositions stood at 18.8 per cent in 1940, almost equal to the criminal trial rate of 19 per cent. In 1960, the civil trial rate had declined to 11.4 per cent and continued to decline to 5.3 per cent in 1988 (Heydebrand and Seron, 1990: 107, Table 5.4). The corresponding and updated figures from a later study show a civil trial rate of 11.5 per cent in 1962, 3.5 per cent in 1992, and 1.8 per cent in 2002 (Galanter, 2004: 462–63, Table 1). Data on civil trials before 1940 are not available. However, if the civil non-trial disposition rate in 1940 was 52.9 per cent as I indicated in the previous section, it is conceivable that civil trial rates before 1940 could have been as high as 40 per cent to 45 per cent. This is clearly a long-term trend in the decline of civil trials. Adjudication, then, has been increasingly replaced by arbitration and other forms of ‘alternative sourcing’ like mediation, negotiation and settlement. Even Resnik’s ‘managerial judging’, a type of ‘bureaucratic legalism’ or ‘judicial case management’ (Lande, 2004: 20), has been affected by these tendencies (see Hadfield, 2004: 705 on the rise of ‘non-trial adjudication’, ie, judicial intervention rather than settlements as a cause of the decline of the trial rate). Interestingly, the rate of trials in the areas of adversarial holdouts such as tort, contract and civil rights cases were most resistant to this tendency at all observation points, lending some support to Kagan’s argument (but see Ross, 1970, on tort settlements). Ultimately, however, these types of cases also succumbed to the broad sweep of the ‘vanishing trial’, finishing up only slightly higher than the total civil trial rate of 1.8 per cent in 2002 (Galanter, 2004: Table 1). Among structural explanations of the decline of trials, besides ADR, the ‘economic argument’ has probably been the most significant. Trials

120 Wolf Heydebrand have become simply too costly and their outcome too uncertain—a central point of Kagan’s analysis that tends to undermine his argument, however. As Galanter puts it, ‘going to trial has become more costly as litigation has become more technical, complex, and expensive’ (2004: 517; see also Hadfield, 2000). ‘Corporate actors’, Galanter continues, ‘view participation in the legal arena in terms of long-term strategy ...one that must be subjected to cost controls’ such as ‘alternative sourcing—diverting what might have been in the courts into alternative forums’. Adversary terminations during or after trial in US Bankruptcy courts have also declined (Warren, 2004: 913; Galanter, 2004: 559, Table A21).4

4 The idea that trials may be ‘vanishing’ has provoked a chorus of critical responses from within the field of ADR, especially from practitioners of business mediation (see Stipanowich, 2004, and current efforts, as of Spring 2006, by the International Institute for Conflict Prevention and Resolution, the ABA Section of Dispute Resolution, and the Academic Dispute Resolution Program, Straus Institute, Pepperdine University School of Law, Malibu, CA to export business mediation programmes to China and Eastern Europe). For example, it is claimed that Galanter (2004) has misinterpreted the data and that the ‘myth of the vanishing trial...is misleading and...teaches the wrong lessons’ (Lande, 2005a: 4). ‘For many in the dispute resolution field, the field’s growth and legitimacy has demonstrated multiple virtues of ADR procedures ... judges can make some of their best contributions by helping design and manage disputing systems as well as trying cases ... mediators and arbitrators are often heroes, helping people work through conflicts ... we should invest more in realistic stories honoring people who work together in the challenging struggles in offering a range of procedures to manage conflict in our society’ (Lande, 2005a: 5; see also Lande, 2004; 2005b). The conclusions of these professionally somewhat self-serving critiques, raised as they are from the perspective of the interests of business mediation, are as follows: (1) there is no reason to deplore the decline of trials because they are being replaced by more modern, rational procedures that avoid, by-pass, or redefine ‘unresolvable’ issues of inequality and power; (2) the use of the term ‘vanishing trial’ promotes the myth of legally indispensable civil procedures and formal adjudication, thus implicitly blaming ADR for the decline; (3) a legal system glorifying adjudication, trials, binding arbitration and related formal procedures as part of the rule of law increases legal and economic transaction costs and imposes intolerable financial burdens on business and corporate management; (4) the goal of law and government should not primarily be the protection of constitutional rights, but effective conflict prevention and efficient conflict management through complex (multi-faceted) systems of mediation and negotiation in the workplace, among businesses and between businesses and consumers; and (5) an excessive emphasis on the rule of law, legal rights, product liability and broad access to justice and litigation impairs the efficient operation of business and the economy. Obviously, the diffusion of alternative dispute resolution procedures to transitional legal systems like Eastern Europe and China is a business and, as such, part and parcel of a neoliberal policy of promoting economic globalisation and the privatised management of domestic and trans-national conflict. In other words, instead of engaging in an analytically or legally informed discourse, the proponents of private dispute resolution argue that it is ‘just wrong’ to counterpose ‘informalism’ to the rule of law because, with increased treaties and legal globalisation, there may actually be more law and more ‘formalism’ internationally, not less. Thus, it is claimed, there may be even more proceduralisation in the form of international arbitration and mediation which, in turn, could actually mean more law- and norm-based enforcement of legal relations. It appears that this line of argument is transparent and ‘open’ only in the sense that it is a ‘harmony-ideological’ and unabashedly politicised version of technocratic governance under the guise of seemingly rational and legitimate concerns (Nader, 1990). Adversarial legalism is

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VI. CHALLENGING THE KAGAN HYPOTHESIS: THE RELATIVE PERSISTENCE OF ADVERSARIAL LEGALISM?

Robert Kagan’s hypothesis of the exceptionalism and relative persistence of adversarial legalism needs to be re-examined in light of both the historical and statistical trends discussed above as well as the conceptual limitations of his initial typology. There is an exhaustive Review Symposium on Kagan’s book in Law and Social Inquiry, 2003: 719–872. Here, I restrict myself to the following observations. The four ideal types of adversarial legalism, bureaucratic legalism, negotiation and expert ‘or’ political judgement are produced by a 2X2 table, the venerable instrument of deductive reasoning in the social sciences (Kagan, 2001: 10, Table 2). Kagan’s taxonomy of modes of policy implementation and dispute resolution is generated by the intersection of two binary master variables: the organisation of decision-making authority (hierarchical versus participatory) and the style of decision-making (informal versus formal). One problem is lack of conceptual independence between ‘informal style’ and ‘participatory decision-making’. But the key problem is the simplifying analytical reductionism of the typology, ie, the binary nature of the distinctions which exclude empirical gradations and historical transitions. In other words, the four ideal types produced by this 2X2 typology are analytical, rather than historical, constructions. They have therefore a certain conceptual rigidity that renders them immune to the detection of historical variability and change. The typology represents a version of a-historical political functionalism—especially the qualities claimed for analytical legalism as a distinct, exceptional type of legal system. Analytical legalism, so goes the silent assumption, must be latently ‘functional’ because it persists despite certain inefficiencies and drawbacks from the perspective of the ‘rationalising’, modern systems of legal procedure. The stability and structural-functional integration of societies are seen as core cultural values that need to be maintained and reproduced. As Joseph Sanders (2003: 738), a reviewer favourable to Kagan’s hypothesis, puts it:

anathema to the advocates of ‘litimediation’ and ‘litigotiation’. At the same time, they refuse to acknowledge that mediation and negotiation tend to replace civil procedure with privatised, commodified, and commercialised methods of conflict-management. Pragmatically, private dispute resolution may ‘work’ for the purposes of managing immediate, situated conflicts and crises. It may even help to extend the typically dyadic consultation model (consultant versus client) to triadic, corporatist and collective situations as well as broader cooperative arrangements among organised interests. But private dispute processing is not a legal method since it lacks authority and accountability and does not assume responsibility for the outcome of the process, nor for the long-term validity and viability of a given negotiated organisational or communal ‘solution’. In other words, business mediators may channel disputants into short-term conflict-preventing, conflict-avoiding and neutralised social agreements, but they don’t wait around to see whether they work.

122 Wolf Heydebrand ...it is easy to lose sight of the fact that the United States is a stable society. The fundamental sociological reason this is so is because the nation’s social structure and its culture are in rough correspondence. Adversarial legalism as a set of structural arrangements reflects deep-seated cultural values that in turn help to create and maintain the structural arrangements that give them expression.

From this perspective, the prospects for change of analytical legalism as a legal and political institution are predictably dim. One could hardly find a better expression of the circular, a-historical and stability-oriented ethos of the functionalist credo. In Kagan’s typology, bureaucratic and adversarial legalism represent the widely cited nineteenth century differences between continental civil law and Anglo-Saxon, especially American, common law (Holmes, 1949; Merryman, 1985; see also Pildes, 2004). There is little acknowledgement that expert and political judgement as well as bargaining and negotiation, while marginally present in earlier historical forms, became central categories of twentieth century American jurisprudence. Similarly, there is little reflection on how the expanding American economy—rather than the political culture—engendered the substantive legal rationality of the national administrative state and favoured the efficiency-oriented procedural informalism of commercial common law. Looking at Kagan’s four ideal types from the current vantage point, they are all present to varying degrees in the modern legal systems of Europe and the US. This means that the conceptual boundaries between the ideal types are blurred and that they no longer discriminate adequately and clearly between the underlying conditions they are supposed to classify: formal legal contestation, litigant activism, fragmented authority and weak hierarchical control of the judiciary. Such conditions, moreover, may have existed in the mid-nineteenth century, but they hardly characterise the twentieth century American state in World War I and World War II , the Cold War, the contemporary phase of globalisation, the new informal world order, or the influence of one-party government where ‘hierarchical control of the judiciary’ easily becomes the norm. In addition, the juxtaposition of expert and political judgement in the same cell renders this ideal type indeterminate because if judicial decisionmaking is not political, it can be seen as based on professional or scientific expertise, and vice versa. If one factor doesn’t work, the other one may. There is no room for negative evidence or falsifiability. Of course, both expertise and political judgement have entered into American legal and judicial decision-making, but one is supposedly based on scientific or professional knowledge, the other on the familiar, but still controversial, claim that all law is politics. Is science, then, just another ideology? Is politics just another form of expertise? Kagan understandably seeks to defend his functionalist hypothesis against the empirical challenge of declining or low adjudication and trial

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rates. He argues that ‘[T]he dual aspect of adversarial legalism (AL)—as decision-making structure or method and a day-to-day practice—is crucial to understanding its social consequences. It means that AL’s importance cannot be measured by litigation or adjudication rates alone’ (Kagan, 2003: 13–14; emphasis added). But then, one may ask, can it be measured by ‘the mere threat of costly and potentially punitive adversarial litigation’? Kagan argues that ‘because its structures always stand ready to be mobilized, AL—ie, lawyer-dominated and potentially costly contestation—is a barely latent, easily triggered potentiality in virtually all contemporary American political, economic, and administrative processes’ (ibid, emphasis added). Indeed, American legal structures are seen as ‘the functional equivalent of the large central bureaucracies that dominate governance in high-tax, activist welfare states’(Kagan, 2003: 16). One of the dysfunctions of adversarial litigation is that it ‘enables ideologues or opportunists to use the law as a tool for extortion’ (16; note, however, that this potential abuse of the ‘threat of litigation’ appears as an incentive for bargaining and negotiation in the ascending paradigm of the ‘economic analysis of law’). Kagan’s reasoning here comes close to a self-fulfilling prophecy that defies testing. Either lawyers are ready to litigate and expect to drive up costs and trial rates—but therefore precisely avoid litigation and keep trial rates low (as Galanter argues), or lawyers anticipate that the probability of litigation is low—because of the threat-and fear factor—but therefore don’t have to fear a litigation explosion and can remain ready to negotiate. The fact is, of course, that lawyers benefit either way. The ‘threat of costly litigation’ so central to Kagan’s argument cannot be reliably measured. By removing trial rates from evidentiary consideration, Kagan renders his hypothesis unfalsifiable, hence theoretically vulnerable. Under analytical legalism, the trial rates should always be relatively high and/or constant, as may have been the case in the second half of the nineteenth century and into the first decades of the twentieth (there is some evidence of that for criminal trials, see Heydebrand and Seron, 1990: 107, Table 5.4). In the mean time, the costly and unpredictable civil trials feared by potential litigants and repeat players are actually disappearing and making room for bargaining, negotiation and court-annexed mediation and arbitration. The functionalist theory of the causal effects of social consequences is circular by positing that the ‘item’ in question, analytical legalism, persists because it is functional for resolving the tension between American political culture and its governmental structure. Because analytical legalism is seen as both cause and consequence, the threat-and-fear hypothesis of litigation fits both high and low trial rates (or neither) and thus becomes untestable and irrelevant. Finally, the most serious empirical challenge to the Kagan hypothesis derives from the fact that the over-arching structural effects of globalisation and transnational procedural informalism, negotiation, mediation

124 Wolf Heydebrand and soft law as well as expertise and politics have made inroads on both bureaucratic and adversarial legalism, in both Europe and the US, especially since 1992. Thus, it is the rise of procedural informalism and the flexibility associated with the growing privatisation, denationalisation, and commercialisation of law that have rendered the nineteenth and early twentieth century forms of adversarial legalism either obsolete, or have given them the limited role of the ultimate enforcement power of hard law in extreme and exceptional circumstances or as a matter of last resort, ie, adjudication under the constitutional jurisprudence of the Supreme Court. Interestingly, while the Supreme Court has long urged the use of procedural informalism as a matter of judicial policy ( Burger, 1976), it has not yet itself adopted a framework of informal legal governance (but see Sunstein, 1999). In sum, both the adversarial and the bureaucratic paradigm are facing a series of procedural alternatives and innovations such as ‘new blends of public and private power at all levels of government ... a greater reliance on bargaining and negotiation models of decision-making ... the delegation of public functions to private entities … and a market discourse that arguably narrows the role of non-economic values in decision-making processes’ (Aman, 2003: 125). They are emerging in a variety of legal fields, including commercial law and other areas of international private law and financial regulation. Finally, the organisational ramifications of process rationality have surfaced in transnational social, political, regulatory and legal networks in Europe, the United States and the agencies of transnational governance.

VII. DISCUSSION AND CONCLUSION

My overall assessment of the two propositions guiding this chapter is that the supporting evidence is relatively robust and suggestive. The transnational expansion of private economic power and informal political hegemony has begun to penetrate different legal arenas, methods and procedures. This expansion has had three consequences relevant to the present discussion. First, it has produced an expansion of the scope of discretion in legal and political decision-making which, in turn, raises the issues of accountability and democracy as well as the conceptual and ideological tension between government and governance. Second, it has set in motion a convergence of mechanisms and pseudo-legal practices of governance at the transnational level and in the context of the rising influence of hegemonic processes in law and the new informal imperialism. The growing asymmetry of power and resources within and between nations in the current phase of globalisation aggravates the tension between the formal rule of law and the political economy. It promotes the further decline of legalism (whether bureaucratic or adversarial) relative to the political and economic forces operating in the contemporary transnational and global landscape.

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Third, while procedural informalism, international soft procedures and technocratic attempts at the ‘governance’ of the political economy of globalisation are phenomena that have an ‘elective affinity’ with each other, it goes without saying that these secular trends are neither monotonic nor perfectly correlated. They are part of complex historical processes that generate countervailing movements, contradictions and reactive—if not reactionary—responses. Nevertheless, there is considerable theoretical and empirical support for the hypothesis that Western legal developments in the past 150 years have been decisively shaped by the three major phases of political and economic globalisation observed so far. The American way of law has been a dominant force in this process: not only through adversarial legalism, but also through its opposite—procedural informalism. Whether we are considering the export of legal services, the global presence and growth of American law firms, the transnational influence of both private law (commercial and trade law) and public law (administrative and constitutional law) or the spread of methods and techniques in civil and criminal procedure, there can be no doubt that the growth of American political and economic influence has stimulated and authorised the expansion of American common law and procedural innovations. The development of EU law and the spirit of experimentation in the contemporary intra-European transnational context have helped to promote the ascendance of new methods of ‘proceduralisation’ such as harmonisation, mutual recognition and open and reflexive coordination. These methods appear to integrate formal, substantive and process-based elements in a European version of procedural informalism. It is hard to predict under what conditions this process-based trend will become constitutionally institutionalised.

Deviant Cases and Countervailing Tendencies As is to be expected in studying long-term historical and complex structural processes, there are problems of method and negative evidence which point to specific conditions under which the propositions may not be fully supported. There are at least three such conditions. First, procedural informalism, the explanandum or ‘dependent variable’, is sufficiently heterogeneous to permit a variety of interpretations of the secular trend. Doctrinal legal anti-formalism, the ADR and informal justice movements, and the emergence of soft procedure can be seen as part of the same process only from a very general perspective that pits formal and adversarial legalism against substantive, informal and soft versions of modern civil procedure. Similarly, the political economy of globalisation is a potentially heterogeneous ‘independent variable’ whose historical and structural effects on civil procedure are varied and complex. Compared to the effects that Garth attributed to the trajectory of the welfare state in

126 Wolf Heydebrand Europe and the US, it encompasses a longer period and is more complicated due to the interaction between modernising states and economies in a dynamic transnational force field. Second, the hypothesised co-existence of formal, substantive and informal (or hard and soft) procedures, while crucial for an interactive interpretation of the expansion of the scope of discretion in judicial and political decisionmaking, nevertheless permits a degree of ambiguity and indeterminacy that complicates the demonstration of a clear-cut causal connection between structural determinants and legal procedural effects. The very possibility of ‘bargaining in the shadow of the law’ versus ‘litigating in the shadow of informal settlement’ suggests that judicial, adversarial and informal decision-making may collide or interact in unpredictable ways. Third, the hypothesised link between the political economy of globalisation and legal change over a period of 150 years challenges both historical and legal conventions of analysis. While I believe that such a challenge is possible, even necessary in order to grasp the complexity of the ‘legal forest’ under conditions of globalisation, there remain certain lacunae and uncharted territories that require further exploration. It is my hope that this chapter may contribute to continued as well as alternative efforts to conduct social inquiry into the interaction between globalisation and legal procedure.5

5 A number of scholars have suggested that what appears as part of a secular trend of procedural informalism may be marked by various counter-trends of neo-formalism and re-formalisation, although nobody has, to my knowledge, offered a theoretical rationale for the return of formal legal rationality or the operation of cyclical patterns. Thus, David Trubek (in personal communication) has argued that ‘some examples of informalism are really examples of neo-formalism. This is especially true of the creation of the WTO dispute settlement mechanism which now is highly legalised and in that sense has formalised world trade law’ (see also Iwasawa, 2002; but see Shaffer, 2001; Woods, 2001). Trubek continues, ‘the same is true for the neo-liberal fascination with exporting the rule of law and legal formalism to developing countries’ (see also Trubek and Galanter, 1974). This may have been true for 1970’s ‘Law and Development’ studies and policies. Under contemporary globalisation, however, re-formalisation is, if anything, opposed by business interests. Thus, the advocates of neo-liberal policies are more interested in private justice systems and the export of mediation, negotiation and other ‘process tools aimed at managing conflict’ (Stipanovich, 2004: 911) rather than adjudication or even arbitration that is being ‘infected’ by legalism (Phillips, 2003). Similarly, Duncan Kennedy (2003: 674-78), in a quasi- Hegelian interpretation of the dialectical, globalising movement of legal thought between 1850 and 2000, argues that the contemporary legal consciousness of the ‘third globalisation’ (from 1948 to2000) has opened the door to a number of new formalist socio-legal movements. Among these are neo-formalism in public law (though not administrative law), a ‘plethora of normative reconstruction projects designed to transcend the opposition of classical legal thought and The Social and thereby restore Reason to rulership in law’ (677), and a ‘plethora of methodologies’ (678) such as analytical jurisprudence and the sociological and economic analysis of law. I readily acknowledge that there may be counter-trends and successful cases of reformalisation, or conflicts between formal, substantive and process-based tendencies. I consider such cases of possible ‘negative evidence’ important for rendering the trend of

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procedural informalism theoretically plausible and empirically testable. But it is also true that some of these cases are controversial and must be examined in more detail than is possible here. For example, arbitration may be ‘re-contractualised’ in the sense that many contemporary multi-national business and real estate contracts specify stringent criteria and procedures of where and how non-compliance is to be transacted and remedied (Brunet, 1999). But this ‘re-formalisation’ is not welcomed by the dispute resolution industry. As Phillips (2003: 39) put it, ‘arbitration is ... trending most harmfully in the direction of the litigation model’. Feinman (2004a; 2004b) suggests that the ‘classical revival’ in common law may really be a form of ‘un-making law’ by instrumentalising it or subordinating it to the imperatives of market fundamentalism and neo-liberal economic policy. Edelman’s (1990) isomorphic reproduction or transfer of what appears to be ‘formal due process’ from institutionalised adversarial legalism to contemporary bureaucratic organisations represents the enforcement of substantively rational procedural rules by administrative agencies, rather than any cyclical re-formalisation of law. In general, the trend of procedural informalism described here is as ‘real’ as the courts and alternative venues in which it is negotiated. If the secular trend toward the decline of formal adjudication and trials in American courts should continue, if it should spread to other venues or other countries, and if the private, non-legal ‘process tools aimed at conflict management’ should continue to be promoted and exported by the agencies of economic globalisation, it would signal strong support for my hypotheses. If, on the other hand, the instances of ‘reformalisation’ cited should multiply, and if a slowdown of globalisation or a return to the autonomy of national legal systems could be shown to result in authentic re-formalisation, the hypotheses need to be revised or abandoned. In any case, however, I recognise that the hypothesised trend needs to be further subjected to the systematic scrutiny of empirical analysis and constitutional jurisprudence. Insofar as this task is yet to be performed by legal and sociolegal experts, the propositions guiding the current project as well as the work of other scholars on the relationship between globalisation and the form of law are best treated as working hypotheses. Specifically, this suggests the need for painstaking historical and legal research that would be required in order to be able to reject the ‘null hypothesis’ that there is no significant secular trend of procedural informalism. Similarly, it would be necessary to show that the instances of systematic informalism and soft procedures observed and cited here are independent of the political economy of globalisation. They would also have to be shown to be independent of systematic neo-liberal efforts to expand the scope of discretion by way of informal and flexible modes of decision-making or by the hard-but-soft rationality of negotiated process.

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5 American and European Forms of Social Theory Reflecting Social Practice RICHARD MÜNCH

I. INTRODUCTION

his chapter deals with the reflective relationship between social theory and social practice. This relationship is demonstrated with the help of European traditions of theorising the production and reproduction of social order that are contrasted with the American tradition. Particular theories are selected to represent a particular way of conceptualising and explaining social order: Anselm Strauss’s theory of negotiated order, Anthony Giddens’s theory of structuration, Michel Foucault’s theory of order reproduction by the power structure embodied in any discourse, as well as Jürgen Habermas’s theory of order transformation by the power of discourse, and Niklas Luhmann’s theory of order production and reproduction by demarcating system and environment. These different theories of order are taken as reflecting the social practice of order construction on the basis of the example of clean air regulation in the countries in which the theories are rooted: the United States, Britain, France and Germany. Against this background, I will briefly look at the path-dependent changes in the direction of negotiated order taking place in the European regulatory practice and their reflection in theorising order. Finally, I will clarify the main argument as constructing ideal types of theorising and practicing order for understanding specific features of reality. This construction of ideal types has to be distinguished sharply from the empirical description of practices of theorising and regulation. The dominant forms of order construction in the institutional setting of a society serve as the foremost reference for constructing and understanding theories of producing and reproducing social order. In this way, I look for a sociology of knowledge with regard to the construction of social theory. Theorists are not a free-floating species. They have been socialised in a particular language and social practice; they have been trained in a particular

T

142 Richard Münch academic setting shaped by a particular tradition of conceptualising and theorising social reality. What they use as reference for their theories is strongly bound to particular practices of producing and reproducing social order. It is therefore very likely to find that social practice is reflected in their theories. Likewise, we discover some deeper meaning and common traits of a variety of social practices in a country, if we interpret them in the light of a particular social theory. In this way, we are ourselves constructing a relationship of homology— that is of structural similarity - between a particular social theory and a particular social practice. The hypothesis is not that theories are ‘applied’ in social practice, it is rather that theories reflect social practice, that theories and practice share a particular culture and therefore some common meaning. If this is true, it should be possible to reconstruct theories in such a way that we see a particular social practice reflected by them, and to reconstruct a particular social practice in such a way that it serves as a practical basis for understanding a particular theory. We are certainly captured by a hermeneutical circle here, referring from practice to theory and back to practice again. We surely look for a relationship between theory and practice that makes sense and put aside other relationships that do not make sense. What makes a particular interpretation of the homology between theory and practice more robust than other interpretations is the failing of other interpretations to make sense. This is what is claimed in this chapter. Social theories reflect both the symbolic and the practical order of social life: different traditions of thought, of theorising society and different realities of social order. They contribute themselves to the social construction of social order. Social theories thus reflect and construct the reality they explain and are in this way self-approving constructions of reality. In order to break this self-approving character of social theories it is necessary to compare them as reflecting and constructing a particular social practice. Only by this kind of comparative assessment are we able to identify the blind spots of particular social theories and social practices. A comparison of selected American and European forms of social theory is doing exactly this business (Münch, 1991, 1993). The legal order of society in the book as well as in action is certainly the core of social order. There should, therefore, be a close correspondence between American and European forms of social theory and American and European ways of law. This is why I will try to reveal common traits of the practice of social theory, on the one hand, and the practice of law, on the other hand. It will be the guideline of carrying out the comparison of American and European forms of social theory. I will discuss how social order is explained by a selected number of social theories that have evolved from different national traditions of thought and, at least to some extent, reflect different national traditions of social order, that also means legal order.

American and European Forms of Social Theory 143 With regard to selecting individual theories there will always be the question of representativeness. Every national tradition entails some heterogeneity, and there always has been and there is increasing cross-fertilisation of social theories across national borders. Nevertheless, there are social theories that can be said to be deeply rooted in national traditions of thought and indeed reflect essential features of national social and legal order. In this perspective, I will spell out the conceptualisation and explanation of order of the following theories: • •





Anselm Strauss’s (1978) theory of negotiated order reflecting regulatory negotiation in the United States; Anthony Giddens’s (1984) theory of structuration reflecting the incremental improvement of best practical means by knowledgeable agents in regulatory practice in Britain; Michel Foucault’s (1972a, 1972b) theory of power inherent in discourse reflecting the technical construction and implementation of plans by the ruling administrative élite in regulatory practice in France; Jürgen Habermas’s (1981) discourse theory and Niklas Luhmann’s (1984) systems theory as two opposing types of reflecting the tension between system and life-world in regulatory practice in Germany.

I will ask three questions: (1) (2) (3)

How is order conceived of? How is order explained? How does the theory of order reflect the national practice of order production?

To answer the third question I will draw on a comparative empirical study on clean air regulation in the countries under scrutiny, based on the analysis of documents and 25 to 40 interviews with actors in the field of clean air regulation in each country. This comparative study was conducted from 1994 to 1999. Going further into the details of clean air regulation for providing empirical evidence would reach far beyond the limits of this chapter. I will, instead, focus here on reconstructing essential features of clean air regulation in the light of the theories of order production and reproduction under scrutiny in this chapter. Readers interested in empirical evidence should refer to its presentation in a series of publications (see Münch and Lahusen 2000; Münch et al, 2001; Lahusen 2003; Stark 1998; Jauß 1999).

II. HOW IS ORDER CONCEIVED OF?

What is order from the most general perspective comprising different conceptualisations? It is a state of affairs allowing people to predict each other’s behaviour so that they are able to make and carry out plans without being

144 Richard Münch confronted with the unexpected intervention of other people. Should such an order go beyond mere accident—like an order resulting on the market from the matching of supply and demand—commonly shared binding rules are required (Münch, 1987). For the rules to be binding, actors have to presume that everybody presumes the binding validity of the rules (Weber, 1922/1973: 445–446). In this case everybody can expect that the violation of rules will be sanctioned by everybody or by some representative body speaking for the whole community. The latter might be a court judgment on the legality of some action. However, below this abstract definition, order can be conceived of in very different ways, particularly depending on how we imagine an actor acting in society. We therefore have to ask the question in a more specific way: What is the meaning of order, how is it conceived of in different social theories? My answer as regards the social theories under scrutiny in this chapter is as follows: •









Anselm Strauss (1978) conceives of order as a temporarily given accommodation of symbolic constructions; order is produced and reproduced by actors negotiating their symbolic constructions day by day. Anthony Giddens (1984) conceives of order as an ongoing social practice rooted in tradition and reflecting the common sense of people on what is practical; order is produced and reproduced by knowledgeable agents engaged in the continuation and renewal of what has turned out to be practical. Michel Foucault (1972a, 1972b, 1977) conceives of order as a power structure imposing itself on any social practice; order is produced and reproduced by the power inherent in any discourse. Jürgen Habermas (1981) conceives of order as an intersubjectively shared set of meaningful, valid and binding norms; order is produced and reproduced day by day in life world communication and changed in rational discourse. Niklas Luhmann (1984) conceives of order as the clear-cut distinction between system and environment; this distinction is produced and reproduced by systemic operations according to a binary code like the distinction between right and wrong or compliance with norms and deviation from norms.

Starting from this outline of different understandings of order let us look more closely at the individual explanations of order and at clean air regulation as a social practice reflected in the individual theories of order production and reproduction. Negotiated Order For Anselm Strauss order is basically not given once and for all, but rather negotiated day by day. In his book Negotiations (1978), he gives an outline

American and European Forms of Social Theory 145 of his theory of negotiated order based on a sample of empirical studies on order production and reproduction in organisational settings. An example is the negotiation of order in different departments of a psychiatric hospital that had established new experimental wards. Summarising this sample of empirical studies, Strauss lays special emphasis on the day-byday negotiated character of social order. The outcome of the negotiations is determined by the structural setting: who negotiates with whom, when and on what issue. The products of negotiations—contracts, agreements, understandings or rules—are temporarily limited in their validity. They are permanently checked, newly assessed, revised and renewed. The negotiated order existing on a given day consists of the rules and strategies of the organisation as well as all open or hidden understandings, agreements and contracts that are taken as valid on each hierarchical level of the organisation at that moment. Every change that touches on the negotiated order—eg a new member joining the organisation, a disturbing event, a broken contract, the introduction of a new technology or philosophy—implies negotiation, new assessment of the given order and change of that order. If we look at the daily process of negotiation, the more enduring organisational rules constitute the background against which the ongoing agreements in the foreground have to be understood. Negotiating agreements as part of the existing order in an organisational setting is part of the regular means used by actors in order to attain their goals. The process of negotiation is shaped by the theories of negotiation applied by the actors involved in that process. The negotiation process is subdivided in partial processes like incurring losses, paying debts and negotiating agreements. Negotiations take place within a given structural context rooted in basic institutional structures. The structural context is the basis for day-to-day negotiations and is being re-shaped by those negotiations. The negotiation process is directly shaped by the negotiation context including features like the number of actors involved, their experience with negotiating, the singular, repeated, sequential, serial, multi-levelled and/or interrelated character of negotiations, the power relationship between the actors, the interests of the actors, the transparency of intentions and actions of actors for the other actors, the number and complexity of negotiated issues, the clarity of legitimacy limits of issues, the options available to the actors beyond negotiation (Strauss, 1978, 6–7, 99–100). Representing this kind of negotiated order, the cases of psychiatric wards demonstrate that established rules were always under scrutiny. No rule, no authority, no merit acquired in the past was accepted once and for all. They were all constantly assessed and re-negotiated according to the outlined features of negotiated order (Strauss, 1978: 112). This model of negotiated order (see also Münch, 1986) can be interpreted as reflecting essential features of practising clean air regulation in the United States. What is characteristic of the practice of clean air regulation in this

146 Richard Münch country compared to the three other countries under scrutiny is the greater number of actors and the fragmented character of the policy networks in the policy field in all three phases of programme formulation in Congress, of standard setting by the Environmental Protection Agency (EPA) and of implementation, including a greater number of cases brought to court (Jauß, 2001: 131–136). More than in the other three countries, institutional rules guiding the practice of regulation are focused on securing competition about regulation between interested parties under the condition of equal opportunity, accountability of agents, transparency of administrative processes and fairness in dealing with competitors (Jauß, 2001: 136–141). The professions involved are manifold and—more than in the other three countries—are characterised by the adversarial search for truth. Evidence is countered by counter-evidence, industrial research by public interest science (Jauß, 2001: 141–146). The adversarial nature of the whole policy-making process is rooted in the culture of liberal democracy as a system of checks and balances calling for competition between a plurality of actors and day-to-day negotiation on solutions to problems and on conflict settlement (Jauß, 2001: 146–152). Clean air regulation is adversarial in the United States from formulating the problem to its handling in procedures of standard stetting and its implementation involving much more litigation than in the other countries. A far greater part of the accommodation of symbolic constructions is carried out in the courts than in the other countries. The law is constructed and re-constructed in Congress in a trial and error procedure starting with an imperfect law and proceeding with the permanent revision of that imperfect thing. The central actor of standard setting is the Environmental Protection Agency (EPA) that is more a platform of conflict settlement than an authority making authoritatively binding decisions. Regulatory negotiation has become a formalised procedure of adversarial decision-making. This kind of regulating clean air can be interpreted as a particular form of social practice reflected in Anselm Strauss’s theory of negotiated order. The prevailing form of coordinating action in this model of policymaking is the competition of a plurality of interest groups on shaping the outcome of the process. The groups want to maximise their utility and form coalitions in flexible ways in order to attain this goal. The policy process is considered as offering each interest group in the field a chance to maximise utility. Losers in one situation may compensate for their loss by achieving gains in another situation. Package deals between different groups or parties are common practice. Policy-making is an endless chain of bargaining rounds. Therefore, each interest group hopes for new chances of making gains in the further process. The openness for future gains is the structural feature of the policy process that confers legitimacy on its outcomes in the eyes of the participating groups, both winners and losers alike.

American and European Forms of Social Theory 147 The major strategy determining the selection of a policy programme out of a larger number of proposals is the forming of coalitions between a larger number of actors in the policy field to produce a majority in the responsible committees in Congress. Legislation is a complicated process of coalitionbuilding that involves a lot of lobbying and bargaining. Many proposals are put on the track of legislation, but only few of them survive and end up in a legislative act (often named after the individual senators or representatives standing behind the act). On the way to legislation, a proposal is revised several times. Quite frequently, it is incomplete and needs further specification in the implementation process, which is often carried out under the direction of a federal regulatory agency. The implementation process itself is a continuation of the bargaining chain and involves also a plurality of actors striving for utility maximisation. Again, coalition building between different interests is the typical means of a successful implementation of policies. Competition on influencing policy outcomes does not, however, end with the implementation of legislative acts in the activities of regulatory agencies. It is not rare for losers of the game in the implementation phase to go to court in order to stop or change a regulation programme. Policy-making is a trial and error process that has to undergo a larger number of checks and has to overcome a larger number of barriers. On the one hand, it has to build on deals between a number of actors whose interests have to be served; on the other hand, policy programmes have to pass a number of critical checks aiming at their defeat. The rationale of this model of policy-making is seeking win-win solutions and openness of programmes for revision. The policy process entails comprehensive mobilisation of a plurality of interests. There is little bundling of interests by large-scale associations. The policy field is populated by a plurality of interest groups as well as single corporate actors (firms) and even individual actors. In order to overcome the numerous barriers in the process, time and energy has to be invested in coalition building. Extensive lobbying takes place. Senators and representatives are under permanent pressure of serving the interests of both private and public interest groups. The policy process is open to influences from a plurality of interests. Advancing an interest requires, however, enormous efforts of lobbying and coalition building. Public interest groups rely on mobilising the public, which adds a further element of openness and complication to the process. Because the political parties and their representatives in Congress are only loosely organised, the process of policy-making is not in the hands of given majorities but in the hands of situationally formed coalitions aiming at the promotion of specific legislative acts. The outcome of the process is very uncertain. A large number of proposals do not pass first objections; only few of them advance up to the final steps and fail nevertheless; only a small amount out of the original proposals end up in legislative acts that have, however, undergone numerous revisions; many

148 Richard Münch of them receive their final shape only in the implementation process; some are revised soon after having passed Congress; some have to be changed after court decisions. Making use of scientific knowledge is part and parcel of the policy process and is shaped by the basic features of that process. For every evidence there is some counter-evidence. Science used by industry is countered by science mobilised by public interest groups. Public science is a player in the field that has to be taken into account. Finding out the truth is, therefore, an adversarial process, an endless struggle of evidence and counter-evidence. The scientific basis of policies is always in danger of being refuted. There is an inflationary element in the policy process. Comprehensive political mobilisation—lobbying, coalition building, mobilisation of the public, invoking evidence and counter-evidence—is often met with little success so that a smaller number of successful policies is confronted with a larger number of unsuccessful policies. However, this does not necessarily end up in mistrust in the process itself. As long as interest groups believe in the openness of the process they continue to invest in that process. This belief in the chance of influencing the process at a later stage or in a different situation helps to avoid an inflationary process turning into a deflationary spiral of retreat from political participation. There are, however, signs of mistrust and of withdrawal from regular political participation. This model is favourable to specific and well organised interests and unfavourable to unspecific as well as poorly organised interests. Behind the openness of the process there is a rather unequal distribution of profits resulting from the process for different groups. Turning back to Strauss’s model of negotiated order we see how it reflects the process of policy-making. Policy-making is an ongoing process with uncertain and incomplete outcomes. It involves a plurality of actors who compete on influencing the outcome in terms of maximising their utility. Nobody has a stable majority. This situation makes negotiation, coalitionbuilding and package deals the major means of policy-making. There is no commonly shared public interest, but rather a plurality of groups trying to promote some specific public interest against competing private interests as well as other public interests. Scientific knowledge does not provide a stable base for policies, because it is itself in a permanent process of contest and change between evidence and counter-evidence. In general, order is permanently negotiated and re-negotiated. This model is very open to change. However, it is not open to everything and everyone in the same way. It helps specifically focused and well organised interests, and leaves more general and poorly organised interests at a disadvantage. Formal equality of opportunity results in substantial inequality of policy outcomes. Therefore, the legitimacy of the process is undermined by feelings of deprivation on the part of those groups that are victims of the discrepancy between formal

American and European Forms of Social Theory 149 equality of opportunity and substantial inequality of outcomes (for further details see Jauß, 1999, 2001).

Order Evolving from the Social Practice of Knowledgeable Agents Anthony Giddens’s (1984) structuration theory tries to mediate between objectivism and subjectivism in explaining social order. In his perspective, any explanation of social order has to take into account the following basic elements of social practice: The duality of structure and agency makes people aware of the constraining and enabling character of structures for agency and the construction and reconstruction of structures by human agency. Agency and the knowledgeability of agents are essential features of social practice. Social practice takes place on three levels of agency: (1) day-by-day social practice; (2) the monitoring of practice; and (3) the reflection of practice opening up opportunities of change. Agency makes a difference and in this way exerts power, which means that social practice needs empowered and knowledgeable agents in order to be steadily renewed. Structure is the starting point of a permanent process of structuration in social practice and is thus continually reconstructed. Order evolves from established traditions in the social practice of knowledgeable agents struggling for a fair share in society. The major element in Giddens’s theory that accounts for the change of structures in social practice is the knowledgeability of agents (Giddens, 1984: 21–27, 90–92, 281–289, 327–334, 375). For Giddens, human individuals are no blind and incapable objects of structural constraints who carry out what is determined by structures. They are rather agents who know about the social circumstances, the conditions and consequences of their action and who apply this knowledge in their action. The knowledge of the agents is a central means of mutually linking established structures, social practice and consequences of action in continuing or transforming structures. Process and result of a negotiation between trade unions and employers is not simply determined by the historically evolved structure of the capital/labour relationship, but crucially shaped by both actors’ knowledge about the situation, about conditions and consequences of their action, about each other and about each other’s knowledge about themselves. This knowledge forms the strategies and the tactical means that determine success and failure leading to continuation or transformation of the capital/labour structures. Therefore, the human individual’s knowledgeability and its enactment in social practice determines the continuation or transformation of structures. Nevertheless, everyday routine carries out unconscious motives and cognitions, unreflected knowledge of traditional practice. This first level of traditional practice can, however, be questioned on a second level in

150 Richard Münch practical knowledge when actors reflect about the practicality of traditional routine. On the third level of discursive consciousness, the very legitimacy of traditional practice is questioned. Practical action moves back and forth between routine, practical adjustment and discursive renewal of practice. In this sense, the transformation of structures emerges incrementally from social practice based on the reflective linking of routine, practical improvement and discursive reflection. Structures display their basic character of duality, being constraining, on the one hand, and enabling, on the other hand. This model of order evolving from the social practice of knowledgeable agents can be interpreted as reflecting essential features of British clean air regulation. Compared to the United States, the actors in the policy field of clean air regulation are much more organised in forecourts of regular consultation. To be included in such regular consultation processes, actors have to prove reasonable and reliable as regular participants. The policy field is therefore characterised by well-ordered consultation in forecourts that are more or less close to the centre of governmental power represented by the Department of the Environment (DoE) (Kurth, 2001: 48–52). The institutional rules of the game demand consultation, accommodation of opposing positions and of principles to realities, appropriateness and practicality of proposals. The relevant principles are Best Practical Means (BPM), Best Environmental Option (BPEO) and Best Available Technique Not Entailing Excessive Costs (BATNEEC) (Kurth, 2001: 52–62). The professions share the belief in practicality instead of abstract knowledge and are used to cooperating in practical problem solving. They share the single language of practical reasoning (Kurth, 2001: 62–64). The legitimating cultural pattern of that practice is the belief in representative democratic government as enactment of the common sense and the common good and the belief in the incremental improvement of social practice based on practical experience (Kurth, 2001: 64–64). Compared to the United States the production and reproduction of social practice in clean air regulation is less adversarial and more consultative, less focused on scientific controversy and more concerned with the accumulation of practical knowledge and incremental improvement of social practice. Compared to France, the process is more consultative and less concertative or radical, compared to Germany it is more consultative and less deliberative, more practical and less scientific and technical. The central actor in British clean air regulation is the Department of the Environment. However, regulation is embedded in a network of committees and informal consultation of which the Royal Commission on Environmental Protection is the most influential one in agenda setting. Policies aim first of all at formal institutional improvements making consultation more efficient and practical, from which substantial improvements should emerge later on. Consultation is the means of improving

American and European Forms of Social Theory 151 social practice in terms of practicality without abandoning the approved achievements of long established practice. We might say that Giddens spells out what happens in British clean air regulation in modern terms, focused more strongly on changing order. The social order of clean air regulation is a matter of an ongoing social practice in the hands of knowledgeable agents who are engaged in processes of consultation. The latter aims at the improvement of regulation as an incremental process of renewal without abandoning the achievements of good old practices. The dominant form of coordinating action in the network of actors involved in the policy process in such a model of policy-making is the compromise between different positions. The actors have their own perspectives and interests and are aware of the fact that their realisation confronts opposing perspectives and interests of other people. They therefore engage in negotiations in order to set the limits for realising the perspectives and interests of any group so that no one has to suffer any damage resulting from the fulfillment of perspectives and interests. The current definition of such limits for realising perspectives and interests is acknowledged as having resulted from processes of balancing perspectives and interests in the past. They are adjusted to new situations only in as far as new evidence can justify such a change. Too far-reaching changes would imply too much uncertainty instead of the firm possession of rights within the boundaries of the existing order and entail a result that is worse than the existing arrangement of rights. The predominant strategy of the actors in the policy field aims at confirming property rights; the practice of negotiation is targeted on searching for a fair compromise acknowledged by all parties involved in the process. Struggling for one’s own rights is alright, but it is also alright for others to do so. Even in the hardest of struggles, the defeated is left that amount of respect that allows him/her to continue living. The actors in the field behave in a way that guarantees support and cooperation from the other parties in the field at any time. This is only possible in as much as they themselves respect and support the other parties. The trust they receive from the other parties has to be carefully cultivated in order to keep it in a stable condition. Relying on the support and cooperation of others requires supportive and cooperative behaviour on one’s own part. In this way, a finely grained arrangement of individual rights is attained step by step. This arrangement is not exclusively guaranteed by written law, but by an historically evolved tradition of countless agreements on which every single individual can count in his/her relationship to other people. Institutional inertia dominates and allows only for piecemeal change. Compromising proceeds slowly in little steps of individual agreements and handling individual cases in order to adjust historically evolved traditions to new situations. Only in extraordinary situations of crisis is the political regulation of society in terms of this model of incremental compromising able to intervene deeply into the structure of society. Politics is not a completely autonomous sphere

152 Richard Münch of decision-making, but is largely entangled with the historically evolved arrangement of rights and interests. In such a policy field determined by the practice of compromising the mobilisation of influence (social capital) proceeds along a plurality of forecourts of politics and remains largely limited to these forecourts. Therefore, influence in terms of social capital can only to a limited degree be turned into political power that can be used for enacting political decisions. The political regulation of society is therefore always in danger of losing effectiveness in the face of established rights. Therefore, politics has to proceed in small steps. Knowledge has also to be proved by long-standing experience and in practice. The advancement of scientific knowledge proceeds slowly and stepwise. Scientific knowledge is not the foundation of far-reaching interventions in society derived from grand theory, but part and parcel of the incremental improvement of societal practice and, in this way, itself largely shaped by that practice. This model of compromising in the policy process tends towards deflationary phenomena. Politics receives generalised support only to a limited degree, so that its capacity for intervening in society is also limited. This is the specific feature of practising policy that has led British politics into a stalemate in the decades after World War II. Only the pressure of strong economic decline in the 1970s allowed Margaret Thatcher to make use of her majority power in parliament, which is in principle a means of breaking up the stalemate of the accumulated rights and privileges of interest groups. However, this tool was weak in the decades before. Therefore, Thatcher’s rigorous use of her majority power in parliament does not falsify the outlined model of compromising for Britain. The model is in itself an ideal type that is, however, particularly useful for explaining specific features of the British policy process. Thatcher’s rigorous use of her majority power was, on the one hand, largely required by the stalemate produced by the earlier decades of practising compromise while, on the other hand, it was only feasible in the extraordinary situation of a deep societal crisis. From the point of view of Giddens’s model of producing and reproducing order the British policy process is deeply rooted in the ongoing practice of a specific regulated field and involves all relevant actors of that field. It is bound to the historically evolved common practical knowledge of the actors in the field. Professional experts, industrialists and environmentalists share this common practical knowledge. New technology and new rules have to pass the test of practicality. There is no place for scientific models and experimental studies if their results cannot be proved in practical contexts. Participating successfully in the policy process requires acknowledgement of the proof of practicality. Extensive consultation includes a broad array of views and interests that are, however, filtered by the rule of practicality. Because everybody respects this rule, the policy process is relatively open

American and European Forms of Social Theory 153 for a broader spectrum of actors. This has been the door to the process for the environmentalist movement. The policy field involves ‘knowledgeable agents’ able to contribute to the improvement of the common practical knowledge and, in this way, to the change of policies. The policy field is relatively open to change, which can, however, only proceed on the path of an established practice. This model of producing and reproducing order, however, runs the risk of openness without change, when the knowledgeable agents in a policy field are unable to look beyond traditional practice and at the same time, when their negotiation ends up in a stalemate of preserving established rights and privileges. This is a deflationary process, in which too little governmental power is available to overcome the situation of the policy process being captured by established rights and privileges. This is where the parliamentary majority power of a strong prime minister is required in order to bring about major change. It is, however, reserved for the extraordinary situation of a long-standing crisis, as the singular case of Thatcher’s rigorous policy of change indicates (for further details see Kurth, 2001).

Order Produced and Reproduced by Exercising Power in Discourse For Michel Foucault (1972a, 1972b, 1977), discourse is the means of producing and reproducing order by exercising power. It is characterised by the following features: Discourse entails three externally constraining procedures: prohibition of objects, times and people; demarcation of the reasonable from the insane; demarcation of the true from the untrue. Discourse entails three internally constraining procedures: commentary; attribution of texts to an author; and organisation of knowledge in disciplines (language, standards, methods, professional bodies). Access to discourse is regulated by constraining factors: rituals; discourse societies; and doctrines. As regards externally constraining procedures, prohibitions mean that particular subjects, times and persons are excluded from what can be talked about. The demarcation between reason and unreason bans particular ways of thinking and talking from discourse. The distinction between the true and the untrue also involves closing out knowledge and reasoning that do not fit in the dominant conception of the true. Concerning the internal procedures, the commentary is a means of controlling the process of discursive reasoning in such a way that deviations from dominant knowledge are kept within narrow limits. Linking texts to authors creates responsibilities of talking consistently and within the limits of dominant lines of thought for the producers of texts. The organisation of knowledge production in disciplines like physics, chemistry, biology, humanities etc, creates disciplinary limits of theorising and methodical procedures. Access to discourse is first of all limited through

154 Richard Münch rituals. One has to be socialised into the discourse community in order to know the rituals that determine participation in discourse. The organisers of that discourse are discourse societies, eg professional societies exerting strong control on the skills one has to possess in order to be admitted to professional discourse. Established doctrines include in discourse what is conforming to their principles and exclude what is not conforming. The production and reproduction of social order is a matter of exercising power embodied in the established order of knowledge and enacted by actors who represent that order of knowledge, namely scientists and administrators speaking with the voice of authoritative knowledge. This model of order production and reproduction can be interpreted as reflecting essential features of French clean air regulation. Compared to the other countries looked at, the policy field of clean air regulation in France is characterised by the inequality of well established and less established groups in their access to the centre of governmental and administrative power. Environmental groups are not part of the establishment and are more used to protesting than to cooperating (Borgards, 2001: 77–85). The institutional rules of program formulation are focused on the concertation of the responsible administration with selected groups in the field. In order to be influential, groups have to be acknowledged and registered as part of the establishment and have to be considered reliable sources of information and decision-making as well as of implementation (Borgards, 2001: 85–88). The process is dominated by the technical élite trained in the Grandes Ecoles and organised in the Grands Corps. That élite includes administration, science and industry in one leading group that claims to represent the public interest (Borgards, 2001: 88–90). Decision-making is legitimated by the idea that the responsible élite represents the general interest. There is, however, an enormous gap between the élites’ claim to representing the general interest and the reality of decision-making dominated by the selective concertation of the administrative élite with established groups. This gap provides good reasons for the regular ups and downs of protest and withdrawal by groups that are not part of the establishment (Borgards, 2001: 90–96). Compared to the United States the regulation process is more hierarchical than competitive; compared to Britain it is more technical than practical; compared to Germany it is more centralised than federal. The central actor of French clean air regulation is the state department of the environment that ranks, however, below the department of industry. Government, administration and industry are ruled by the administrative and technical élite educated in the Grandes Ecoles and organised in the Grands Corps. This élite represents and enforces the public interest against the particular interests of particular groups. The latter are invited to concertation according to their acknowledgment by the government. Concertation is a specific kind of gathering relevant societal groups under the authoritative leadership of the government. Opposing views are not included and put

American and European Forms of Social Theory 155 on the tracks of radical criticism that lacks professional competence. This practice of French clean air regulation reflects essential features of power inherent in discourse according to Foucault. The prevailing form of coordinating action in this model of policy-making is the conflict between rulers and the ruled on exercising legitimate power. The victory of one group means a loss for the other group. Policymaking is a zero-sum game. In order to succeed in such a game, the actors have to have power and strive to extend it. The basic law of this game is the accumulation of power through power. As a result of the long-standing accumulation of power by the more powerful groups, the policy field is subdivided hierarchically in the incumbents of central positions of power and those groups that have no direct access to such central power positions and are therefore in the position of being dominated. This hierarchical differentiation is, however, a situation of basic instability, because the dominated groups form an ever-present potential for challenging the existing political order. The hierarchical differentiation of the policy field entails the domination of the field by the administrative élite with the department of industry in the dominating position and the department of environment in the dominated one. Of the societal associations struggling for influence on legislation and implementation of the law, the industrialists dominate over the environmentalists. Policy-making proceeds in the form of selective concertation that means coordination of interests by the administration with privileged access of acknowledged interest groups to the concertation process. The selective character of concertation with the effect of splitting up interest groups into privileged and disregarded organisations helps, on the one hand, to promote straightforward legislation and implementation of law in the advancement of state-driven technological modernisation. One example is the straightforward advancement of nuclear energy. On the other hand, the marginalisation of a relevant number of interest groups provokes frustration and protest that is articulated on the streets from time to time. The selective nature of concertation is not responsive enough to articulate opposing views and interests, that therefore have to turn to the streets. Articulating opposition on the streets has become a tradition. It undermines the legitimacy of government and administration. This lack of legitimacy is a weakness of government and administration, which therefore have to retreat from legislative projects from time to time in the face of public protest. Straightforward advancement of technological modernisation therefore combines paradoxically with governmental and administrative weakness in the implementation of such projects. The same is true for the advancement and application of scientific knowledge. Scientific knowledge in France is advanced by the state’s centres of research, organised by the Centre National de la Recherche Scientifique and applied through the close cooperation between the research centres and the

156 Richard Münch administration responsible for a certain policy field. Opposing views and paradigms are marginalised. There is little space for critical science within the field of science itself. Criticism is left to the intellectuals. Therefore, it can be articulated in a most radical form that is, however, far removed from the complex nature of scientific and technological questions so that it is unable to shape technological modernisation in a constructive way. It is easy for the technical-administrative élite to disregard radical intellectual criticism as scientifically uninformed and utopian. Intellectual criticism is a game in itself—a regular concomitant of technological modernisation— with little effect on real policy-making. The technical-administrative élite is in the clearly dominant position, while the intellectual élite is in a dominated one. The latter is a challenger of technological rule with little hope for a real change of this rule, however. In this framework of a basic conflict between rulers and the ruled, policymaking suffers from a specific kind of inflationary processes of political power. The governmental and administrative élites in the dominant position advance technological and economic projects in concertation with the dominant professions, associations and interest groups. Because opposing views and interests are not included in the concertation process, the results of policy-making lack support, are opposed and are circumvented as much as possible. Therefore, some of those results have to be revised in the face of too much protest, while others have little effect on society. Policy-making therefore suffers regularly from discrepancies between ambitious projects and the reality of their incomplete realisation. This means that invested governmental and administrative power is regularly undermined and lacks effectiveness. Its actual value does not cover the ambition behind its investment in political-administrative projects. The more government and administration make use of ineffective power, the more they lack confidence in their citizens. The latter withdraw from politics so that there is less power in terms of generalised support available for the government than before. The spiral of inflation has turned into a spiral of deflation in this case. Turning back to Foucault’s model of producing and reproducing order through discourse, we have to recognise the power exercised in the policy discourse. It is located in the dominant knowledge of a policy field that is in the hands of the dominant scientific and technical élites. Knowledge that does not conform to the dominant paradigm becomes systematically sorted out and has no chance of exerting any influence on the policy process. It is either absorbed by the dominant paradigm, thus losing its critical potential, or it is assigned the place of an outsider that cannot be taken seriously. This is particularly the fate of criticism articulated by intellectuals and environmentalists. The order of discourse draws a clear demarcation line between the true and the untrue. The unintended effect of this order, however, is inflationary/deflationary spirals of expanding and contracting power in the policy process (for further details see Borgards, 2001).

American and European Forms of Social Theory 157 Order Produced and Reproduced by Exercising the Legitimate Power of Discourse For Jürgen Habermas (1981), social order evolves from discourse. Discourse begins when communication under the rule of unquestioned tradition fails. Discourse is the means of turning the sacred into language: Versprachlichung des Sakralen. Any social order consists of some sacred core of untouchable truths guaranteeing its enduring binding power in regulating action. The more new experience is made, and criticism and reflection are taking place, the less social order can derive its binding power from a core of substantial sacred truths. The sacred turns from substance to procedure, that means from substantial norms to procedural norms, which serve as guidelines for finding out what is true and what is untrue, what is right and what is wrong. This process transcends everyday communication within a takenfor-granted life-world to move on to rational discourse that is guided by nothing but the laws of constructing intersubjective consensus by free and open reasoning between people on equal terms. This is meant by the phrase of turning the sacred into language. Discourse proceeds according to the rules of the ideal speech situation: everybody can make statements on equal terms; everybody can apply criticism on equal terms; statements have to be justified by reasons; only the better argument determines who is right and who is wrong; a statement is valid as long as it is based on consensus. An order based on consensus on statements (normative as well as cognitive statements) is taken as legitimate. Order that has evolved from distorted communication not conforming to the requirements of the ideal speech situation is illegitimate in the normative sense and unstable in the factual sense. Order in modern societies emerges from the interpenetration of the traditionally and discursively established life-world and the functionally rationalised systems of economy, politics, law and science. Instead of this interpenetration of systems and life-world, there is a tendency of the life-world to be colonised by systems, thus making social order a matter of adapting to functional imperatives so that it can be considered illegitimate and unstable.

Order Resulting from Complexity Reduction For Niklas Luhmann (1984), social order emerges from chaos by way of complexity reduction in the way of drawing a demarcation line (distinction) between system and environment. Complexity reduction in social terms is reduction of double contingency. Drawing a distinction between system and environment is the essential form of complexity reduction. Self-reference is the basic operation maintaining the demarcation between system and environment. A set of means establish self-reference: a binary code determines

158 Richard Münch a system’s observation of the world and guides communication exclusively. Right/wrong is the binary code of the legal system. This distinctive program guides the operation of a system. The law says exactly what is right and what is wrong in legal terms. The distinction of first-order and second-order observation allows undisturbed systemic processing (first order observation) without excluding reflection of this processing on the metalevel (second order observation). The ‘de-tautologisation’ of tautology by way of second-order observation serves to overcome being captured by the blind spots of systemic processing. De-paradoxidation of paradox provides for reflection of the system’s distinction between system and environment within the system through second-order observation on the meta-level. Reentry means reflecting a first-order distinction by a second-order distinction within a system. In practical terms, the production and reproduction of order depends on continually demarcating system and environment by means of self-reference, for example in court-room jurisdiction (Luhmann, 1969/1983). In a pluralistic society, court room decision-making cannot derive unquestioned legitimation from the outside through some higher order authority like God, nature or reason. It has to produce its legitimation by itself, namely by the procedure of decision-making that has to allow for a clear-cut distinction between right and wrong. This distinction implies the complete absorption of the conflict between parties struggling for their rights by the system and its self-referential processing of the case. Contact systems reduce the complexity of persons involved, and exactly defined roles make actions within court procedures predictable. Historical path-dependency narrows down the direction of advancing decision-making. Because the procedure outlines exactly the ways of opposing to court decisions, protest that does not conform to these ways is closed out as particularistic dissatisfaction and not legitimate. Conditional programming guarantees that decisions are derived from rules under given conditions as a completely neutral process. Decision-making is presented to the public as an unavoidable outcome of a legitimate procedure free from any particularistic influence and can thus successfully claim legitimacy.

Two Opposing Modes of Theorising and Producing Order Habermas’s and Luhmann’s two opposing theories of social order reflect the tension entailed in the production and reproduction of social order in German clean air regulation. Luhmann’s theory reflects the German idea of the Rechtsstaat making regulation a self-referential process in the hands of experts committed to the law. Habermas’s theory reflects the critical view focusing the lack of democratic legitimation of self-referential decisionmaking by experts. The policy field is characterised by the tension between

American and European Forms of Social Theory 159 decision-making in closed committees of knowing experts and the critical demand for public discourse that is feared by experts as undermining the capacity for distinguishing truth and untruth, right and wrong in a clear-cut way. The institutional rules entail the tension between systemic-technical decision-making on the true and untrue, right and wrong and the demand for grounding decisions in democratic consensus formation. Politicising the technical is horrible for the expert and a means of democratic decisionmaking for the critical intellectual. Exercising professional competence implies tension between the technical knowledge of the engineer and the ‘ignorance’ of lay people, requiring access to decision-making and aiming at a broader process of consensus formation beyond the unquestioned enactment of expert knowledge. Cultural legitimacy reflects the tension between practising decision-making as a self-referential process of experts on the one hand, and decision-making as based on public deliberation on the other hand. Compared to the other countries, the policy field of clean air regulation in Germany is characterised by the dominance of engineers, based on their scientific-technical knowledge. The other actors in the field have to speak their language and have to accept their problem solutions. Because engineers are the leading experts in all included groups and administrative departments they help to handle issues as technical problems strictly independent of politics. This arrangement includes a striking discrepancy between the technical language of experts in the work of committees and the emotional articulation of fears in public debate. That particular tension between the rationality of the committee work of experts and the emotions articulated in public discourse is more pronounced in Germany than in the other three countries looked at (Stark, 2001: 104–106). That arrangement is supported by the institutional rule that makes it necessary to keep up with the current level of technical development and to meet the norm of appropriateness of a means in attaining a goal, if costs are taken into account (Stark, 2001: 106–114). Since engineers dominate the field, it is their language that is spoken, their perspective of the world and their standards that are applied. Other professions have been included only hesitantly and with much more precarious standing (Stark, 2001: 114–123). The culture serving as legitimation of this type of regulation is oriented to the formation of consensus under the guidance of the technical rationality of engineers. This consensus, however, lacks a bridge to the anxieties articulated in a public that cannot participate because of lacking technical expertise. Therefore, the high technicality of problem solution is confronted with high emotionality in public discourse (Stark, 2001: 123–128). Compared to the United States, the policy field is less pluralistic and features the engineers in the dominant and integrating position, while other professions and environmental groups have been marginalised for a long time. The gap between technical problem-solving and the emotionalised

160 Richard Münch mobilisation of the public by social movements has long been characteristic, but has changed towards more pluralisation and linkage according to the American model. The process, however, is still less pluralistic and adversarial and more technical in character, with enduring problems of opening the doors of technical problem-solving to the inclusion of non-technical views. Compared to Britain and France, the federal organisation of the process is typical. Compared to Britain, scientific technicality dominates over practicality; compared to France, the environmental movement has been far more included over time under the reign of the engineers’ language and world view. The central actors in German clean air regulation are the department of the environment supported by the office for the environment (the Umweltbundesamt) and the joint federal-state commission for clean air regulation (Kommission für die Reinhaltung der Luft). Clean air regulation is basically considered a technical question. On the basis of agenda setting in public communication, the jurists make the law, which is boiled down to technical standards by the engineers, and set into practice by the administration. In theory, there is little room for bargaining because of the strict differentiation between democratic legislation and bureaucratic implementation of the law, both in the Habermasian as well as the Luhmannian sense. There are the two pillars of democracy and the rule of law (the Rechtsstaat). The demarcation line between these two pillars would become blurred the more bargaining processes invade the implementation of the law. This is taking place; therefore, it lacks legitimacy from the Habermasian point of view as well as effectiveness from the Luhmannian point of view. Coordination of action takes place in this model of policy-making predominantly as attaining generally valid solutions to problems beyond mere compromising between particular views and interests, beyond negotiation with the aim of utility maximisation, and beyond conflict settlement through majority power. Two institutional pillars are designed to attain this goal. On one hand, expert committees are expected to produce generally valid solutions to problems based on scientific knowledge. On the other, large-scale representative associations are included in policy-making and in carrying out policies in public responsibility. They are not considered mere interest groups, but representative associations that should be committed to furthering public interests. In this way, the pluralism of interests is overcome in a synthesis on a higher level of abstraction (Dahrendorf, 1968). A synthesis is not simply the sum of a multiplicity of individual views and interests. It needs, instead, abstraction from any individual views and interests. It intends to attain a problem-solution that can rightly claim consent from everybody who would take part in a discourse on the relevant subject matter. Consent does not have to be granted, because any singular view and interest is being served best and the utility of everybody is being maximised. It does, however, have to be granted because a technically correct

American and European Forms of Social Theory 161 and valid problem solution has been attained that allows individual views, interests and rights to be harmonised within a greater whole. Arguing and proving claims is the typical behavioural style of this model of policymaking. Positions in a debate have to be grounded in objectively valid reasons. The practice of policy-making is determined by the struggle for the best solution to a problem in the light of the available scientific and technical knowledge. The language of truth determines the practice of policymaking. Only proposals that have been prepared with sufficient scientific and technical knowledge are taken seriously. Only solutions that can rightly claim to be scientifically corroborated are accepted. Scientists and engineers are the trustees of a policy-making practice aiming at the general validity of problem solutions and trying to overcome mere compromising, bargaining and conflict settlement between interests. The dark side of this emphasis on arguing and reasoning in expert committees is the gap between claiming general validity of problem solutions and the real pluralism of views and interests, which is simply denied. There is, therefore, little space left for compromising and bargaining, which leaves the real conflict of views and interests unresolved. In this synthesis model of policy-making the close collaboration of government and representative associations committed to the public interest allows for the comprehensive mobilisation of social capital giving policy programmes the necessary support to penetrate every corner of society. The government therefore disposes of comprehensive power to form society. Scientific knowledge is also unified by central research organisations and representative technical associations working with a public licence. Policies are supported by binding scientific and technical knowledge. Therefore, policies are considered legitimate in the sense of reflecting scientific truth and technical competence. The problem-solving capacity of this model of policy-making has, however, faced its limits due to the change of its structural preconditions. The neocorporatist collaboration of government and large-scale associations has blocked policy change and the sufficient recognition of new and more heterogeneous interests. Scientific knowledge and technical inventions have become far more disputed. This also holds true for large-scale technical projects of government and industry. The claim of representative interest articulation, truth and promotion of wealth is opposed by a greater plurality of interests and a less confident public. Governmental power, as well as its support by social capital, truth and money, has lost some of its effectiveness. Correspondingly, the governmental forming of society has weakened enormously. An inflationary spiral of weakening governmental power has emerged. Correspondingly, trust in government has shrunk considerably. There are also signs of the inflationary spiral turning into a deflationary spiral of increasing political alienation and withdrawal from political participation.

162 Richard Münch From the Habermasian point of view, policy-making as exemplified by clean air regulation lacks public deliberation so that it proceeds strictly along technical lines in terms of decision-making under the rule of engineers. The closed character of this kind of decision-making has led to a growing rift between technical standard setting and rising demands for environmental protection in public discourse. The consequence has been the blaming of experts as irresponsible in public criticism, and the blaming of the public as ignorant by technical experts. In as much as technical standard setting becomes politicised and includes negotiation between a greater plurality of actors without public legitimation, the process runs the risk of illegitimate bargaining without public legitimation from the Habermasian point of view. This is a point of convergence with the Luhmannian perspective in which policitised negotiation means blurring boundaries between the democratic legitimation of the law by a majority of responsible political representatives in parliament and technical standard setting as specification of the law. Politicised negotiation of standard setting and implementation of the law systematically blurs the boundaries of these different systems and therefore endangers a complex order based on the clear-cut distinction between systems and their environment, which helps to organise a highly complex world in a way that provides for a highly complex order making the world predictable for people who cannot develop and carry out plans without such predictability (for further details see Stark, 1998, 2001).

III. CHANGES OF SOCIAL PRACTICE AND THEIR REFLECTION IN SOCIAL THEORY

Overall the practice of clean air regulation has involved a number of changes (Münch, 2001): the pluralisation of the network of actors involving more competition; greater demands for transparent decision-making involving more adversarial procedures; more conflict between a greater plurality of experts on what is true and what is not true; greater politicisation of standard setting; and more room for participatory democracy instead of representative democracy. This change is also promoted by European multilevel governance. The change does not, however, result in a complete move of the European practice towards the American one. For example, there are country-specific representations of what is competitive regulatory negotiation in the American practice: consultation in Britain; concertation in France; deliberation in Germany. Hence, the final question is whether this path-dependent transformation of social practice finds reflection in social theory. This has indeed happened to some extent: Anthony Giddens’s (1984, 1990, 1991, 1998) notion of agency, knowledgeable agents and duality of structure gives more emphasis

American and European Forms of Social Theory 163 to change than continuation of practice. Alain Touraine (1987, 1997) is the French theorist of social movements able to change society so that people are not only the victims of a self-reproducing power structure. In Germany, Giddens and Touraine have attained increasing awareness for addressing features of social transformation that are not covered by the Habermasian or Luhmannian approach to explaining social order and social transformation, namely the production and reproduction of social order in everyday practice, including social movements across systemic operations below public deliberation.

IV. CLARIFYING THE ARGUMENT: CONSTRUCTING IDEAL TYPES FOR UNDERSTANDING AND EXPLAINING SPECIFIC FEATURES OF REALITY

I do not claim that the theories selected represent the whole spectrum of theories that have evolved in national traditions of theorising, and I do not claim either that no dissemination of theories has taken place beyond the boundaries of national discourse all around the world. The same is true for regulatory styles in policy areas that are increasingly influenced by processes of the international diffusion of ‘best practices’ and waves of ‘new public management’, for example, coming about with the practice of international coordination in international agreements and supranational governance. Ways of soft international regulation by monitoring and benchmarking processes, as, for instance, practised by the European Union in its Open Method of Coordination (OMC), contribute enormously to the international diffusion of regulatory instruments. Nevertheless, such processes of blurring formerly more separated practices of theorising and regulation will not completely do away with national differences in theorising social order and in regulating society. Such a claim of the emergence of one single world of theorising and regulation would ignore the viability and endurance of differences of culture standing for the path dependency of any development of theorising and regulation within cultural and institutional traditions. This basic assumption of currently flourishing neo-institutionalist thought is also relevant for explaining the persistence of cultural and institutional traditions even under terms of the increasing globalisation of theorising social order and the regulation of society. It is common knowledge that globalisation has not completely wiped out differences in cultural and institutional traditions. Roland Robertson (1992) has coined the concept of glocalisation to say that globalisation in interaction with local traditions is producing change reflecting the global within the boundaries of the local. Against this background of theorising the interlacing of the global and the local, this chapter wants to demonstrate that there are differences in theorising social order that can be traced back to national traditions of thought; that there are differences of regulating society rooted in national

164 Richard Münch traditions of policy-making and law; that theorising and regulation are intertwined in a reflective relationship of practising theory and practising regulation; and that contemporary processes of globalisation in theorising and regulation are reflected in national traditions of theorising and regulation by way of implanting the global in the local to produce ‘glocalisation’ (Robertson, 1992). As regards theorising, Anselm Strauss’s theory of negotiated order is clearly rooted in the American tradition of pragmatism and symbolic interactionism that are entrenched in the American everyday practice of negotiating order. Regulation is part and parcel of this practice. The reason why Strauss’s theory of negotiated order and regulatory negotiation interlace in mutual reflection is elective affinity in an ideal-typical sense. Certainly, Immanuel Wallerstein’s (1979) world systems theory is not a candidate for doing this job, neither is historical sociology of the kind practiced by Theda Skocpol (1979), for example. Both draw strongly on European traditions of thought (Marxism and Weberianism) and therefore do not reflect in an ideal-typical, that is ‘exaggerated’, way a tradition of theorising and practising order that has historically evolved predominantly in the United States. The diffusion of pragmatism and symbolic interactionism around the world does not change the fact of historical evolution within the American tradition of theorising and practising social order. Therefore, European forms of symbolic interactionism and pragmatism are typically glocalised, hybrid adaptations to European cultural traditions as is, for example, demonstrated by the work of Hans Joas (1992). The same holds true for regulatory negotiation. It is deeply entrenched in the American practice of policy-making, where regulation agencies occupy a central position in the regulatory process like nowhere else. However, a world-wide diffusion of regulatory negotiation has indeed taken place. Nevertheless, the practice of regulatory negotiation has everywhere been adapted to historically evolved traditions of regulation to produce very different kinds of regulatory negotiation. Concertation in France is by no means the same as negotiation in the United States. It involves a very different power structure and practice of settling conflicts. Summarising we can say that Strauss’s theory of negotiated order and regulatory negotiation interlace in a mutually reflective way in the idealtypical sense of theorising and practising order as negotiation. This is the main point I want to make. How far this is ‘representative’ of theorising and practising order in the United States is of no interest here, because the focus is exclusively on the analytical construction of the interlacing of a specific type of theorising order and a specific type of practicing order. We may only say that these types of theorising and practising order occur in the most typical way in the American tradition of symbolic interactionism and the American tradition of regulatory negotiation. There are other traditions and features of theorising and practising order in the United States; and neither

American and European Forms of Social Theory 165 negotiated order nor regulatory negotiation are completely unknown in the context of theorising and practising order in other countries. However, this by no means invalidates the argument that is not empirical but rather analytical and theoretical. The empirical cases of Strauss’s theory of negotiated order and the American practice of regulatory negotiation are only taken as material for demonstrating a theoretical argument that tries to point out the features of negotiated order as a special type of order and of its reflection in regulatory negotiation as a special type of regulation. What has been demonstrated with Strauss’s theory of negotiated order and the practice of regulatory negotiation in the United States also holds true for the further selection of theories and regulatory practice. For reasons of space, this can only be outlined briefly. We cannot understand Foucault’s theory of order in discourse without tracing its roots in French structuralism, from Durkheim (1912/1968) and Saussure (1916) to Lévi-Strauss (1962). The understanding of discourse as embodiment of the power structure of society is the demarcation line making this kind of theorising order very different to the Habermasian idea of discourse as a device of enlightenment rooted in the tradition of German idealism. And the rule of the administrative élite in French policy-making is certainly reflected in Foucault’s idea of power embodied in discourse in a much more pronounced way than anywhere else, though administrative élites exert power anywheree in the world. The rule by knowledge of the engineer in German clean air regulation can be interpreted as resembling the technical rule of the French administrative élite. Therefore, Foucault (or rather, Bourdieu) would be a good place to look for explanation. Nevertheless, the French engineer in the French administration disposes of far more administrative power than the German engineer in the German administration. The French engineer is part of a ruling élite organised in the Grands Corps, while the German engineer is not part of a ruling élite but of a profession. He is included in policy-making as an expert and is asked to provide the necessary technical knowledge to solve technical problems. This arrangement opens policy-making far more to technical discourse confronting different positions than the French arrangement, which makes technical knowledge directly a part of exercising power by the ruling administrative élite. Thus, in the French policy-making process we discover more material for demonstrating what Foucault’s theory of order as exercising power by discourse means than in the German policy-making process. Vice versa, we see more reflection of the German policy-making process than the French one in the Habermasian idea of discourse. Again we can say that elements of French administrative rule can be observed in the German policy-making process and vice versa. However, in order to see how Foucault’s theory of exercising power in discourse works, it is better to look for an exemplary basis in France than in Germany or elsewhere in the world. The reason is the exclusive focus on demonstrating the working of an analytical model that does

166 Richard Münch not empirically claim that French theorising does not know anything else but Foucault’s order of discourse and that French policy-making does not show anything else but concertation under the rule of discourse dominated by the administrative élite. Bourdieu (1989) would certainly be the best starting point to investigate the rule of the administrative élite, giving Foucault’s order of discourse more rooting in the real power structure of society, more sociological sense. Touraine (1965, 1987) is the scholar to have introduced elements of actionalism inspired by the American tradition of symbolic interactionism. His actionalism is, however, unmistakably located in the midst of the French power structure and counts on social movements to break up that power structure. His view of the environmental movement as well as the practice of that movement in France is completely different to the theorising and practising of environmentalism in the United States. While the French movement understands itself as a challenge to the established power structure, the American movement is much more part of a self-reproducing process of lobbying and negotiation within the given power structure. Touraine’s actionalism still moves along the tracks of French structuralism, post-structuralism and postmodernism as an opposition within the structuralist field of discourse. However, there are French theorists who are farther away from this field, theorists like Raymond Aron (1962), François Bourricaud (1977), and Raymond Boudon (1977). In Bourdieu’s terms, French theorising can be interpreted as taking place on a power field with structuralist thinking in the dominant position and actionalist theorising in the dominated one, making actionalists outsiders in the field. However, even though they are outsiders, they might nevertheless be very visible scholars in the field. Altogether, it is not the fact of theories deviating from structuralist thought in the French field of theorising that is crucial for my argument, but rather the fact that the working of structuralist and poststructuralist theorising as it reflects the practice of regulation can be better studied in France than anywhere else to make the ideal-typical construction as clear as possible. This construction does not aim at French reality, which is heterogeneous, but at a specific type of theorising order and its reflection of a specific type of regulating society. Nevertheless, the dominant structuralist/poststructuralist position has to be conceived of as being opposed by the dominated actionalist position, which sheds the light of opposing social movements on the same process of exercising power in discourse. The presence of opposing views can be considered characteristic of the French and the German fields of theorising order, and less characteristic of the American and British fields. This is why we find two opposing master theorists in Bourdieu and Touraine and in Habermas and Luhmann. Bourdieu and Touraine, in their theories, represent the conflict between rulers and ruled from opposing angles. Luhmann and Habermas represent

American and European Forms of Social Theory 167 the tension between systems and life world, that is the tension between one-sided instrumental rationalism and the idea of communicative reason. In historical reality, we can observe the conflict between rulers and ruled and the tension between systems and life world on both sides of the Rhine. Nevertheless, for reasons of analytical clarity it is better to study the conflict between rulers and ruled in the French setting of interlaced theorising and practising order, and the tension between systems and life world in the German setting. This is precisely the goal of this study. So far, Anthony Giddens and British regulatory practice have been left aside. It is the most troubling case. It is troubling because the British academic field is not very conducive to theory at all, because theory as such has no legitimacy in the tradition of British empiricism. What has emerged as theory has always been closely linked to empirical studies in anthropology and sociology serving as an instrument for ordering and explaining what can be observed in reality. Understanding culture and institutions in their setting as represented in the work of Mary Douglas (1987) and Margaret Archer (1988) is very close to that programme. What has also gained in significance is conflict theory as represented by John Rex (1981), because it is close enough to the conflicts arising from the class structure and, increasingly, from the ethnic variety of society. Giddens’s theorising has come along this line of thought. It has, however, taken up elements of American interactionism, French structuralism and German critical theory. For Giddens’s theory of structuration it is, therefore, much more difficult to find the appropriate practical counterpart in practising order, particularly if this is limited to a special policy field like clean air regulation. This is why we have to be especially selective in focusing specific aspects in Giddens’s structuration theory and, likewise, in the practice of regulation. The key concepts are the knowledgeability of agents and the duality of structure and agency, on the one hand, and the emphasis on best practical means as well as improving practice as an incremental process guided by practical experience, on the other hand. Both sides can be regarded as related to each other in some kind of elective affinity. In the light of the identified aspects of regulatory practice the knowledgeability of agents means making use of best practical means in the day by day monitoring of practice. The duality of structure and agency appears as an incremental process of practical improvement by way of moving back and forth from given structures to practical action and from practical action to the reconstruction of structures. This would be regulatory practice of knowledgeable agents in Giddens’s terms. When regulators conceive of regulation, however, as implementation of plans elaborated by technical experts, the knowledge embodied in those plans has to be put into practice against the resistance of unknowing actors. Such actors have no chance of being involved. What they have to say has therefore to be expressed in the form of casual protest. In as much as people see this game as a conflict between rulers and ruled, it is likely that such conflict comes

168 Richard Münch up from time to time and does not only focus on technical matters but on rulership as such. Theorising order takes up this kind of practising order in theoretical terms. Practice serves as an empirical basis of theory, and theory serves as the legitimatory basis of practice. In this sense of legitimation, theory fulfils an ideological function. We can say that Giddens’s theory of structuration can be applied to highlight a particular feature of the British regulatory practice, just as the latter can be used to interpret a particular feature of Giddens’s theory of structuration. We may also say that it is easier to find practice fitting into Giddens’s theory in Britain than in other places around the world and vice versa. The problem of putting Giddens’s theory into practice elsewhere would start with translating the meaning of ‘knowledgeability’ into other languages. The framing of a theory by its language alone contributes to the blurring of its meaning on its way to worldwide diffusion. In a strict sense, there is no knowledgeable agent outside the boundaries of the English language. This is the most basic reason why theories are changing their meaning on the way of worldwide diffusion and why it is appropriate to interpret their meaning in the context of their origination to gain a clear understanding of their particular view of the world. This holds true even for Giddens’s theory of structuration, though it draws on sources reaching largely beyond the boundaries of British traditions of thought. Summing up, the argument of this chapter must not be misunderstood as an empirical description of an admittedly much more heterogeneous reality. It is theoretical and analytical in a sense that it tries to elaborate different types of theorising order and of their interlacing with practising order in a mutually reflective way. It does so in a theoretically guided selection of theories and practices that are linked together so as to highlight particular features of theorising order by particular features of practising order and vice versa. Therefore, the regulatory practice is described in terms of the selected theory, while the theory, in its turn, is interpreted by using that practice described in the theory’s terms. Thus, we are fully captured by the ‘hermeneutical circle’ here. Yet this does not invalidate the argument, because this is no ‘test’ of theory, but an explanation of the way it conceives of and explains order. And it is no historical account of what really happens— which is impossible anyway—but instead an analytical construction of regulatory practice in the interest of demonstrating what the theory means when it is put into practice. The essential criterion of the viability of the constructed ideal-type is neither the ‘true’ representation of theories in a national field of discourse nor the ‘true’ representation of what is going on in a national field of regulation. The criterion of a good ideal-type is its capacity to highlight features of theorising and of practising order, which we would not see otherwise, and to show us something to help us understand and explain why order is conceived of and explained in a certain way and why its practice displays certain features, certain effects and side

American and European Forms of Social Theory 169 effects. This is what theory should contribute to understanding and explaining reality. In order to make this contribution understandable, an idealtype has to be clearly distinguished from any representative description of concrete reality in all its heterogeneity and variety.

V. CONCLUDING REMARKS

Social theories reflect social order as it is produced and reproduced in social practice. Linking selected theories of social order with the ongoing practice of clean air regulation has revealed a striking reflective relationship between theory and practice carried out in different national contexts based on different national traditions of theorising social order and of practising clean air regulation. We can establish, however, some movement of regulatory practice in the European countries towards the pluralistic model of ordernegotiation paradigmatically represented by the US clean air regulation that is reflected in the theory of negotiated order spelled out in a clear-cut way by Anselm Strauss. Nevertheless, this change takes place within the limits of path-dependent development. Looking comparatively at the reflective relationship between social theory and social practice helps to better understand the peculiarities and the consequences—both intended and unintended—of theory and practice. Such comparative reflection prevents us from running into blind alleys of theorising and doing practice.

REFERENCES Archer, M (1988) Culture and Agency. The Place of Culture in Social Theory (New York, Cambridge University Press). Aron, R (1962) The Opium of the Intellectuals (New York, Norton). Borgards, C (2001) ‘France: Rule by Virtue of Elite Position’ in R Münch, C Lahusen, M. Kurth, C Borgards, C Stark and C Jauß, Democracy at Work. A Comparative Sociology of Environmental Regulation in the United Kingdom, France, Germany and the United States. (Westport, CT and London, Praeger), 73–102. Boudon, R (1977) Effets pervers et ordre social (Paris, Presses Universitaires de France). Bourdieu, P (1989) La noblesse d’état. Grandes écoles et esprit de corps (Paris, Minuit). Bourricaud, F (1977) L’individualisme institutionnel: Essai sur la sociologie de Talcott Parsons (Paris, Presses Universitaires de France). Dahrendorf, R (1968) Gesellschaft und Demokratie in Deutschland (München, Piper). Douglas, M (1987) How Institutions Think (London, Routledge). Durkheim, E (1912/1968) Les formes élémentaires de la vie religieuse (Paris, Presses Universitaires de France).

170 Richard Münch Foucault, M (1972a) The Archeology of Knowledge (New York: Pantheon Books). —— (1972b) The Order of Discourse (New York, Pantheon Books). —— (1977) Discipline and Punish: The Birth of the Prison (New York, Pantheon Books). Giddens, A (1984) The Constitution of Society. Outline of the Theory of Structuration (Cambridge, Polity Press). —— (1990) The Consequences of Modernity (Cambridge, Polity Press). —— (1991) Modernity and Self-identity (Cambridge, Polity Press). —— (1998) The Third Way. The Renewal of Social Democracy (Cambridge, Polity Press). Habermas, J (1981) Theorie des kommunikativen Handelns. 2 vols (Frankfurt a M, Suhrkamp). Jauß, C (1999) Politik als Verhandlungsmarathon. Immisionsschutz in der amerikanischen Wettbewerbsdemokratie (Baden-Baden, Nomos-Verlag). —— (2001) ‘The United States: Rule by Virtue of Competition’ in R Münch, C Lahusen, M Kurth, C Borgards, C Stark and C Jauß Democracy at Work. A Comparative Sociology of Environmental Regulation in the United Kingdom, France, Germany and the United States (Westport, CT and London, Praeger), pp 129–154. Joas, H (1992) Die Kreativität des Handelns (Frankfurt a.M., Suhrkamp). Kurth, M (2001) ‘United Kingdom: Rule by Virtue of Convention and Consultation’ in R Münch, C Lahusen, M Kurth, C Borgards, C Stark and C Jauß, Democracy at Work. A Comparative Sociology of Environmental Regulation in the United Kingdom, France, Germany and the United States (Westport, CT and London, Praeger), pp 47–72. Lahusen, C (2003) Kontraktuelle Politik (Weilerswist, Velbrück Wissenschaft). Lévi-Strauss, C (1962) La pensée sauvage (Paris, Librairie Plon). Luhmann, N (1969/1983) Legitimation durch Verfahren (Frankfurt a M, Suhrkamp). —— (1984) Soziale Systeme (Frankfurt a M, Suhrkamp). Münch, R (1986) ‘The American Creed in Sociological Theory: Exchange, Negotiated Order, Accommodated Individualism and Contingency’ Sociological Theory 4, pp 41–60. —— (1987) Theory of Action (London, Routledge). —— (1991) ‘American and European Social Theory. Cultural Identities and Social Forms of Theory Production’ Sociological Perspectives 34 (3), pp 313–335. —— (1993) ‘The Contribution of German Social Theory to European Sociology’ in B Nedelmann and P Sztompka (eds), Sociology in Europe—In Search for Identity (Berlin/New York, Walter de Gruyter), pp 45–66. —— (2001) ‘Cultures of Democracy: Historical Formation and Contemporary Challenges’ in R. Münch, C Lahusen, M Kurth, C Borgards, C Stark and C Jauß, Democracy at Work. A Comparative Sociology of Environmental Regulation in the United Kingdom, France, Germany and the United States (Westport, CT and London, Praeger), pp 155–227. Münch, R and Lahusen, C (eds) (2000) Regulative Demokratie. Politik der Luftreinhaltung in Großbritannien, Frankreich, Deutschland und den USA (Frankfurt/New York, Campus).

American and European Forms of Social Theory 171 Münch, R, Lahusen, C, Kurth, M, Borgards, C, Stark, C and Jauß, C (2001) Democracy at Work. A Comparative Sociology of Environmental Regulation in the United Kingdom, France, Germany and the United States (Westport, CT and London, Praeger). Rex, J (1981) Social Conflict: A Conceptual and Theoretical Analysis (London, Longman). Robertson, R (1992) Globalization. Social Theory and Global Culture (London, Sage). Saussure, F de (1916) Cours de linguistique générale C Bally and C-A Sechehaye (eds) (Lausanne-Paris, Payot). Skocpol, T (1979) States and Social Revolutions: A Comparative Analysis of France, Russia and China (Cambridge, Cambridge University Press). Stark, C (1998) Die blockierte Demokratie. Die kulturellen Grenzen der Politik im Immissionsschutz (Baden-Baden, Nomos-Verlag). —— (2001) ‘Germany: Rule by Virtue of Knowledge’ in R Münch, C Lahusen, M Kurth, C Borgards, C Stark and C Jauß, Democracy at Work. A Comparative Sociology of Environmental Regulation in the United Kingdom, France, Germany and the United States (Westport, CT and London, Praeger), pp 103–128. Strauss, A (1978) Negotiations: Varieties, Contexts, Processes and Social Order (San Francisco, Jossey-Bass). Touraine, A (1965) Sociologie de l’action (Paris, Editions du Seuil). —— (1987) Return of the Actor. Social Theory in Postindustrial Society (Minneapolis, Minn, University of Minnesota Press). —— (1997) What is Democracy? (Boulder, Co, Westview Press). Wallerstein, I (1979) The Capitalist World Economy (Cambridge, Cambridge University Press). Weber, M (1922/1973) Gesammelte Aufsätze zur Wissenschaftslehre (Tübingen, Mohr Siebeck).

B

Re-constructing Europe

6 Cold War Law: Legal Entrepreneurs and the Emergence of a European Legal Field (1945–1965) ANTONIN COHEN AND MIKAEL RASK MADSEN

‘In 1950, we could hear the Russian tanks come rolling, we could see the invasion of Europe coming, and we were ready for big undertakings’ Paul Reuter, legal adviser to Jean Monnet.1

I. INTRODUCTION

T

he rise of Europe, and particularly the grand plan for European political and economic integration sustained by a common European legal order, can generally be traced back to the beginning of the twentieth century. Although the inter-War period had already seen a nascent regionalism in international law, it is generally accepted that the breakthrough of this new European order, in effect, took place in the aftermath of World War II. This integration of Europe had multiple incentives. It primarily arose as a reaction to the shared perception that ‘European civilisation’ was endangered by the failure of European Nation-States to create lasting security arrangements for the continent, as well as a geopolitical countermove to the mounting political pressure emerging in the name of Cold War. Creating a strong Europe also, potentially, offered a way out for the European imperial powers, seeking to safeguard their international positions while restructuring and practically ending the increasingly contested colonial structure. On the macro-level, accordingly, the ‘European Way of Law’ emerged as a particular regional international law, which was the product of long-term processes of both intra-European changes in the

1 The original quote reads: ‘En 1950, on entendait rouler les chars russes, on voyait l’invasion de l’Europe et on était prêt à de grandes entreprises’ (Reuter, 1971: 18 ).

176 Antonin Cohen and Mikael Rask Madsen balance of power between states and of extra-European transformations resulting from the changing patterns of overseas domination.2 What adds up to a set of rather complex, interrelated and competing circumstances of the post-World War II breakthrough of ‘Europe’ forms the background to the following analysis, which is centred on the role and position of law and legal entrepreneurs in the birth of a European legal order during the period 1945–1965. The chapter opens with a brief analysis of one of the founding moments of post-war European integration, the Congress of Europe of 1948, and then proceeds to analyse the changing role of legal entrepreneurs in some of the earliest processes of post-war European unification: we analyse first the drafting of the fundamental texts and secondly the beginning institutionalisation of these texts by the two European courts (the European Court of Human Rights (ECHR) and the Court of Justice of the European Communities (CJEC)).3 In conclusion we analyse in more general terms the emerging European legal field of the period and its construction at the crossroads of the national and the international, as well as in a pronounced tension between law and politics. The analysis applies an interpretation of the Pierre Bourdieu’s field-theory which centres on the importance and dynamics of national-European circulations of ideas, ideals and practices, and how these exchanges contributed to a progressive structuration of an increasingly differentiated social space, in which, among others, a European legal field eventually emerged (Dezalay and Madsen, 2006; Cohen and Vauchez, 2007). Considering the overall fluidity of this social space during the period studied, from being initially configured around a set of national and transnational advocacy networks to becoming gradually more institutionalised, we suggest rethinking the processes of building Europe as a series of struggles between national elites with competing capitals and opposing visions and prescriptions as to the substance of an integrated Europe. Following this line of argument, the European space is perceived as both an international and a national battleground and, thus, the transnational space of actions of both national and internationalised elites. Drawing on a Bourdieuian analytical framework, we emphasise the trajectories and habitus of the agents involved in these social processes. We are particularly interested in the properties and profiles of the agents as this allows us to reconstruct the structuration of the area in light of the specific and competing capitals of the legal entrepreneurs who contributed to the categorisation and organisation of this social space. It should be pointed out that whereas the sociology of Pierre Bourdieu has

2 For such an understanding we draw on a variety of analyses notably Elias (1994) and Charle (2001). 3 Created in 1951, the Court of Justice of the European Coal and Steel Community later became the Court of Justice of the European Communities. For the sake of simplification, we will not distinguish between the two acronyms.

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most often been applied to structural studies of more defined and interrelated fields, our analysis of the legal entrepreneurs of the early and nascent transnational European space is mainly focused on the genesis—and indeed geneses—of a European ‘field’, in reality a more fluid social space than is normally presupposed in the notion of field (cf Bourdieu, 1992); also, by being constituted at the crossroads of national fields, this transnational social space had clear dependencies upon national fields of power, their specific differentiation and on their dominant modes of producing law and politics. It is our claim that this approach allows us to retrace the original dynamics and battlegrounds of the rise of Europe and European law, and that these today continue to offer a key for understanding many aspects of the law and politics of Europe.

II. UNITING AND COMPETING FOR EUROPE: THE HAGUE CONGRESS AND ITS LEGAL AFTERMATHS

The postwar innovation of Europe, as suggested, has necessarily to be understood in light of the larger geo-political as well as national political transformations of the period. Compared to previous attempts of European unification, for example the French Briand-Plan of 1929 (cf Sacriste and Vauchez, 2004), the post-war plans emerged in a ‘militarily neutralised’ Western Europe where national elites could not make use of their traditional monopoly of military power to solve their economic rivalry. The collapse of Germany together with the military presence of the United States in Western Europe provided an important structural background to the rise of a European order. It forced European States into legal solutions to economic and political competition, which had transformed into a broader struggle to survive against the world domination of the United States and the Soviet Union (cf Madsen and Vauchez, 2004). The Cold War supplied a further background to the rise of European regionalism in the sense that it contributed to the decline of a European imperial order overseas. Hence, the build up of a European legal and political order took place as part of a transformation of the international balance of power, seeing the elites of particularly the European imperial societies reorient their disputed claim for world domination towards the still uncharted but promising European terrain and power. The whole idea of Europe was thereby transformed from that of a battlefield of European ‘imperial societies’ to becoming more a space of collective action—though still strongly marked by interState competition4—towards a common European society.5 Because of the

4

For a classical account in this regard, see Milward (1992). The notion of ‘imperial societies’ is developed in Charle (2001: 17). This argument of the structural transformation of Europe draws on Charle’s analysis. 5

178 Antonin Cohen and Mikael Rask Madsen way in which post-war European legal practices took form as part of these geo-political changes, the emerging European law in many ways ‘imported’ and translated these political dynamics. It is however equally important to notice how this European legal ‘field’ eventually constructed its own logics and dynamics, among others, as an effect of the entrepreneurship of the leading jurists. This implied first and foremost a ‘Europeanisation’ of practices (legal and institutional) from national legal fields and of existing knowledge on international legal practice. One way of capturing more generally the rise of the post-war European economic, bureaucratic, legal and political space is to view it as the opening of a specific market of ideas and capitals in which national elites— struggling for domination in their various national fields of power—sought to impose and reproduce themselves. It seems essential to first highlight this ‘generalised competition’ on the European level—and the ‘competitive advantages’ that each of these ‘interdependent groups of elites’ (Elias, 1983) sought to gain in the institutionalisation of Europe—in order to better situate the various and competing plans that emerged for uniting Europe. These new institutional undertakings—of which some were successful (notably the Council of Europe and the European Coal and Steel Community) and others direct failures (the European Council of Vigilance or the European Political Community)—can be described as successive attempts to structure this loosely institutionalised transnational space around the specific capitals that each of these groups of national elites endeavoured to reproduce at the international level. Parliamentarian elites, for example, generally aimed at promoting a parliamentary body at the international level which, unsurprisingly, was based on indirect designation by the national parliaments or direct election by the European peoples. Yet most of their main competitors in the struggle to define the new institutions of a united Europe—ranging from corporate management representatives, trade-unionists, intellectuals and national bureaucrats—tended to have different ideas of what ‘representation’ implied at the European level. In their respective views, it often meant a form of ‘corporative assembly’ where European economic, social, intellectual and religious elites should be assembled because of their specific skills rather than by universal suffrage. To give an example of this battle over influence and definition, the specific design of the High Authority (1951) of the European Coal and Steel Community can be seen as a direct response, originating from Europeanist bureaucratic elites, to the creation of the Consultative Assembly of the Council of Europe (1949). In both cases however, legal entrepreneurs succeeded in imposing a legal body as the cornerstone of these two dissimilar sets of institutions (the ECHR and the CJEC). These battles of definition and self-promotion were a general characteristic of the post-war processes of Europeanisation. The Congress of Europe (7–11 May 1948), in many ways the founding moment of modern united

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Europe, provides a central example of this competition between different types of national elites, all promoting their respective views on the future organisation of Europe. Box 1 outlines this social space by differentiating the participants according to their main professional interests. Box 1 Drawing on a basic statistical assessment of all participants at The Hague,6 the social space of this transnational forum can be represented by four principal ‘poles’—to which about 90 per cent of the 776 participants can be attached—defined by the dominance of respectively political, intellectual, economic and trade-unionist capitals. Using this basic key to qualify the participants according to their dominant capital, we can roughly differentiate them in the following fashion: 45 per cent belonged to the political pole, 26 per cent to the intellectual pole, 14 per cent to the economic pole and 5 per cent to the trade-unions pole. What is interesting, however, is maybe not so much the general figures in terms of dominant capitals at The Hague as the internal subcompositions of each national delegation. We find significant discrepancies7 in respect to the proportion of political elites, and more precisely parliamentary elites in the different national delegations. Whereas political elites represented 57 per cent of the total in the case of the UK, they represented only 38 per cent in the case of France, and respectively 33 per cent, 32 per cent and 26 per cent in the case of The Netherlands, Belgium and Italy. Moreover, if we take into account only elected members of parliaments and governments, they still represented 47 per cent of the total in the case of the UK, while only 33 per cent in the case of France. This ‘primary difference’ between national delegations should also be viewed in light of a series of ‘secondary differences’. Whereas the economic pole (which included corporate management and corporate representatives) only represented 5 per cent of the total British delegation, it represented 27 per cent of the Dutch delegation, including a high proportion of executives of internationalised industry (KLM, Shell, Philips and Unilever), 20 per cent of the Belgian delegation, having a significant proportion of representatives of employers’ unions and organisations (Association des Patrons et Ingénieurs Catholiques de Belgique, Chambers of Commerce, Fédération des Industries Belges),

6

For further developments and methodological considerations, see Cohen 2006. We only take into account here the countries which sent the largest delegations to The Hague: France (184 participants), Great-Britain (146), followed by Belgium (68), The Netherlands (59) and Italy (57). The case of Germany (51) is too specific, in 1948, to be taken into account. 7

180 Antonin Cohen and Mikael Rask Madsen and 18 per cent and 16 per cent of the Italian and French delegations. Following a similar pattern, while the trade-unions pole only represented 1.5 per cent of the British delegation, it represented respectively 12 per cent and 10 per cent of the French and Belgian delegations (mainly coming from the non-communist trade-unions, like the CGTFO, the CFTC and the CGC in the case of France). On the contrary, the intellectual pole represented 44 per cent of the Italian delegation whereof two-thirds were university professors, whilst only 30 per cent of the Belgian delegation whereof 80 per cent were university professors, and 23 per cent and 22 per cent of the French and British delegations. This social distribution of capitals outlined in Box 1 contributed to an initial but relatively enduring structuring of the European space. This data also provides a key for understanding the social structure of national divisions that arose at The Hague. As is often pointed out, the Congress saw an ideological clash between ‘unionists’ and ‘federalists’ rooted in a national struggle between the British, on one side, and the French, Belgian, Italian and Dutch delegations, on the other. However, there was also a social clash between two very different visions of politics concerning particularly the question of parliamentary representation. Opposing professionals of politics (in Max Weber’s definition) to all other types of national elites, their attempt to reproduce their specific capitals was particularly apparent during the debates of the Political Committee on the organisation of the future European Assembly. As it was then planned, the Assembly was to be composed of an equal proportion of representatives of national parliaments and of non-parliamentary elites, the latter drawn from the ranks of trade-unions and corporate interests, intellectual and religious leaders, who, according to the rapporteur René Courtin, could best deal with the ‘technical’ issues arising from future European integration.8 It is therefore not particularly surprising that the creation one year later of the Consultative Assembly of the Council of Europe, composed only of members of parliaments, came as a disappointment for many of these actors. In certain ways, to give a striking example, the Schuman Plan was a direct reaction to the institutionalisation of the Consultative Assembly. It emerged as an initiative from a very specific bureaucratic segment of the French State elite,9 the ‘Commissariat Général au Plan’, and was conceived as a means to reproduce, at the European

8 The quote derives from a speech given by René Courtin on behalf of the Joint International Committee of the Movements for European Unity, the organisation behind The Hague Congress. Courtin was also a Delegate General of the Conseil Français pour l’Europe Unie (Council of Europe, 1999: 49). 9 It must be pointed out that, participants to The Hague Congress coming from the national bureaucratic fields only represents 3% of total (including members of the administration and diplomats).

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level, the type of institutional position that its chairman, Jean Monnet, already held in the French national field of power.10 Its main institution, the so-called High Authority, was to be composed of independent experts managing the central aspects of the European coal and steel markets, and the official declaration through which European countries were invited to join this new organisation did not even mention, and much less suggest, any sort of European parliamentary control of this institution. In this environment of generalised competition over the reproduction of national capitals at the European level, legal entrepreneurs played a decisive role, both in shaping political and bureaucratic institutions, and in promoting specific legal institutions and legally binding texts. Legal capital as such was rather marginal at The Hague, with a few notable exceptions, for example the high-profile professor of international law at the University of Paris, George Scelle, who was to take part in the Committee of Lawyers drafting a European Constitution on behalf of the European Movement, or the Rector of the University of Frankfurt, Walter Hallstein, who became chairman of the German delegation to the negotiation of the Schuman Plan (and later president of the European Commission). Nevertheless, the role of legal actors should not be underestimated. Indeed some of the most prominent political figures of the national delegations were in fact lawyers, for example François de Menthon and Pierre-Henri Teitgen in the case of France, or Ronald Mackay and David Maxwell-Fyfe in the case of GreatBritain, and a fair number of these actors—as the abovementioned examples indicate—were soon to take up central roles in the drafting and definition of the major documents and institutions that arose from these mobilisations: the Statute of the Council of Europe, the European Convention on Human Rights, the Schuman Plan and the European Constitution. In what follows, we analyse the role of these politico-legal entrepreneurs of Europe in the drafting of these central legal instruments.

The Cornerstones of a European Legal and Political Order The Council of Europe and the ECHR The drafting of the Statute of the Council of Europe and even more strikingly the European Convention on Human Rights offered these legal, and

10 The Commissariat au Plan was created at the beginning of 1946 as a sort of ‘farewell gift’ from General De Gaulle to secure the management of strategic sectors of the French economy (and protect these sectors from the influence of Communist Ministers). Headed by Jean Monnet, it soon became the avant-garde of a planned economy, aiming at a collaboration of capital and labour, as well as a central interlocutor for the American elites of the Marshall Plan. A rather unique institution, halfway between the bureaucratic, economic, and political fields, it proved to be a decisive player in post-war invention of Europe.

182 Antonin Cohen and Mikael Rask Madsen often at the same time political, expert-entrepreneurs a particularly fertile ground for pursuing both their political ambitions and legal plans for Europe. The European Convention on Human Rights, and more generally the Council of Europe, continued an idea initiated by the UN of using international law as a means to impede large-scale military aggression or, at least, the rise of aggressive and totalitarian ideologies. For the considerable number of former resistance fighters participating in these negotiations, European human rights seemed to provide concrete measures to remedy the odious protection of fundamental rights that ‘occupied’ legal systems had furnished during World War II. Above all, however, the rapid drafting of the ECHR reflected a fear of Soviet expansion into Western Europe. Echoing the NATO Charter of April 1949, the Preamble of the ECHR of November 1950 firmly declared its objective of safeguarding a free, democratic and more united Europe.11 In practice, as they were already under Soviet domination, none of the Eastern European countries ratified or otherwise become involved in the development of the ECHR system or the Council of Europe.12 Instead, as prescribed in its preamble, the ECHR and more generally the Council of Europe became the fora for a politically and legally relatively homogenous club of Western European countries.13 The Assembly, notwithstanding its obvious limitations, was seen as a direct expression of the will and transnational democratic spirit of the peoples of Europe to counter the ‘Russian tanks’, and, potentially, national Communist Parties. The ECHR, supposedly reflecting core values of the political and legal constitution of Western European societies, in turn offered both the internal ‘democratic benchmark’ and external line of demarcation of a united and ‘Free’ Europe. Moreover, these developments were generally appreciated in Washington as they helped pronounce the Western attachment of the new united Europe (see further below). A ‘European Bill of Rights’ had already been proposed prior to the Hague Conference and the core idea—at least when seen from the point of departure of this analysis—of establishing a supra-national European Court with the legal powers to enforce a Declaration in the Member States saw its

11 Sounding like yet another human rights declaration, the NATO Treaty of 1949 underlined that the Contracting States were ‘determined to safeguard their freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law’. 12 At The Hague, observers, mainly dissidents, from Bulgaria, Czechoslovakia, Hungary, Poland, Romania and Yugoslavia were present (Merrills and Robertson, 2001: 5). 13 Thereby it differentiated from the parallel endeavors of building universal human rights under the auspices of the emergent United Nations. This ‘Western bias’ of the ECHR had important institutional and political side effects as it in many ways exactly prevented the kind of ‘Cold War sabotage’ which was to paralyse the UN Human Rights Commission for decades. The fact that the Member States shared a number of political objectives helped to keep on track the otherwise uncertain plan of a common European protection of human rights.

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light early on during these political processes of European restructuring and approximation. At The Hague, in 1948, the project gained greater visibility and momentum.14 Making up the core of the lobby for a ‘European Bill of Rights’, the legal section of the European Movement (see further below on the EM) counted key lawyer-politicians such as Pierre-Henri Teitgen, Sir David Maxwell Fyfe and Belgian law professor, Fernand Dehousse—and many of these were to become key players of the so-called ‘Committee on Legal and Administrative Questions’, the body set up within the Council of Europe to assist with the drafting of a ‘European Bill of Rights’. The group of lawyers included at this early stage also involved, noticeably, a significant number of distinguished academic jurists (for example the eminent Scandinavian law professors Alf Ross and Frede Castberg) as well as a considerable number of what we might name ‘the international legal repeat players’, the set of internationalised jurists gathering at the central international legal associations and often, one way or another, involved in most international law projects, for example the parallel undertakings of the UN or acting through civil society platforms.15 For this loose elite group of internationalist legal professionals, the European regionalist plans offered a continuation of their legal and idealist endeavours of the inter-war period, as well as a very definite possibility of turning what often had been dismissed as cosmopolitan idealism into positive legal obligations.16 Further, with the overall decline of jurists in both the politics and administration of European States—an effect of the rise of the post-war European welfare states which increasingly relied on other forms of expertise than legal—international opportunities became more important for jurists seeking to use the law as a springboard for engagements in political issues.17 The key personnel of the ‘Committee on Legal and Administrative Questions’ reflected this dimension of the early European human rights project. Pierre-Henri Teitgen18, a well-known member of the French

14 It was however also debated whether such an institution was too close to and would indeed unduly duplicate the work of the UN. To this Winston Churchill, President of Honour of the Congress of Europe, famously stated that it would be a ‘ludicrous proposition’ if a ‘European Assembly [was] forbidden to discuss human rights’ and the project went ahead. Winston Churchill is quoted in Merrills and Robertson (2001: 7). 15 AW Brian Simpson offers the most complete documentation of the actors of the European postwar human rights ‘movement’. See Simpson (2004). 16 On the legal cosmopolitan milieus of the inter-war period, see Koskenniemi (2002). 17 If one systematically analyses the main-players of the post-war human rights movement, one finds that a vast majority of these were attracted to the area because of the way it offered them possibilities of doing politics from a legal platform. See further in Madsen (2005). 18 Pierre-Henri Teitgen (1908–1997) was born into the elite of law and politics—his father had been a bâtonnier as well as Vice-President of the Assemblée nationale—and Teitgen also established himself strongly in both areas. As a Christian-Democratic politician (MRP) he was a MP from 1945–1958 and head of MRP (1952–1956). Under the Fourth Republic, he held a number of ministerial positions: Minister of Justice (1945–46), Defence (1947–1948), Information (1949–1950) and later Minister of ‘France d’Outre-mer [overseas]’ (1955–1956);

184 Antonin Cohen and Mikael Rask Madsen Resistance movement and, among others, Christian-Democratic post-war Minister of Justice, was rapporteur. Sir David Maxwell Fyfe, a British barrister and Conservative politician, former Attorney General and Prosecutor at Nuremberg War Crime trials, was president and Antonio Azara, a former Italian Minister of Justice and First President of the Italian Court of Cassation, was vice-president. The Committee wrote the influential ‘Teitgen Report’ of 1949, which suggested the general framework for the European human rights protection system, as well as a catalogue of rights consisting mainly of conventional civil and political rights. Pierre-Henri Teitgen indeed argued for the need to ‘begin at the beginning and to guarantee political democracy in the European Union and then to co-ordinate our economies, before undertaking the generalisation of social democracy’ (Merrills and Robertson, 2001: 8). This evocative statement, made in September 1949, underlined not only the project’s overriding objectives in terms of ‘rights’ but also that Teitgen, as did some of his most keen contemporary Europeanists, perceived their enterprise in broader European terms. As we now know, European integration was in practice to take a dual-path, but at the time of negotiation there was something more generally ‘European’ about the ECHR project which also explains why it could attract and mobilise an elite of internationalist jurists interested in finding lasting security arrangements for the troubled continent.19 At the centre of debate on the European Bill of Rights, as shown by AW Brian Simpson, was the fundamental and indeed quasi-revolutionary idea of establishing a Court which at the initiative of individuals could make decisions concerning states (Simpson, 2004). Proposing the creation of such institutions was far from unproblematic and the core question between national sovereignty and international protection soon emerged as a battleline between legal cosmopolitans and internationalists jurists with more pragmatic views. The eminent Belgian international professor and President of the Belgian Senate, Henri Rolin, was one of the most prominent opponents and urged the assembly to give up the idea. The question concerned the proposal’s challenge to basic international law arrangements of national sovereignty and its justification in different experiences of the Nazi terror. Hardened resistance fighters such as Teitgen or the above-mentioned René Courtin were reluctant to leave absolute power with Governments because of their much too clear recollection of the protection of freedoms offered by

he was also Deputy Prime Minister (1948, 1953–1954). His legal engagement was mainly academic and he pursued a career which included the law faculties of Nancy, Rennes and finally Paris where he helped establish the Centre d’Étude et de Recherche Européennes (CERES) in 1963, the first centre of its kind in France. (Teitgen 1998). 19 In addition to the high-profile jurists of the Committee, the national delegations also included a high number of jurists who were well-travelled in international law and politics. For details see Simpson (2004).

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‘occupied legal systems’. It was, however, far from a unanimous position. Even a number of the delegations from countries which themselves had experienced Nazi occupation, were initially sceptical about the idea of subjugating the definition and the policing of human rights to an indeterminate European Court—it was seemingly a rather odd way of consolidating the newfound liberty after the long-awaited exodus of the Nazis. These problems, along with others concerning the nature of the jurisprudence (opposing common law and continental law) and the catalogue of rights (opposing liberal and social democracy), continued to be debated over a series of Expert Sessions and well into the Conference of Senior Officials of June 1950. What continued to pose problems was finally solved by legal and political compromises during the meeting of the Committee of Ministers in August 1950, notably by making individual petition to the Court optional, as well as by giving the Commission (which was overseen at the political level) a strong role. The Convention was signed on 4 November 1950. Although in many ways an incomplete text, a fact underlined by the numerous subsequent additions made (the Protocols), the ECHR nevertheless provided the framework for an almost entirely novel form of regional international legal enterprise that balanced law and politics in a new way. Also, thereby going beyond the limits of The Hague, the ECHR process and its subsequent specification and implementation provided legal professionals with a forum for enhancing their European skills and capitals across national frontiers. The European Community and the CJEC Although there is hardly any mention of their role in drafting the European Coal and Steel Community Treaty (ECSC), Paul Reuter and Maurice Lagrange, the two jurists whose individual ideas and expertise were highly influential in designing the institutional framework of the High Authority and of the Court of Justice of the ECSC, offer another example of the specific part played by legal entrepreneurs in the post-war invention of Europe. An international law professor at the University of Aix-en-Provence and a legal adviser to the Ministry of Foreign Affairs, Paul Reuter had been deputy director of Pierre-Henri Teitgen’s cabinet at the Ministry of Information (1944) and Justice (1945), as well as his technical adviser when the latter became Minister of Armed Forces (1947).20 As Jean Monnet’s closest adviser from the inception of the Schuman

20 The friendship between Paul Reuter and Pierre-Henri Teitgen went back to the 1930s, when they were both teaching at the University of Nancy. They both took part in the creation of the law journal Droit Social together with François de Menthon. Their ties later increased as they both participated (together with François de Menthon) in the Liberté movement of the Résistance. During the Occupation, Paul Reuter, however, took part in the National Revolution through his teachings at the Ecole Nationale des Cadres d’Uriage designed to train the new leaders of the youth and political movements created by the regime. See Cohen (1998).

186 Antonin Cohen and Mikael Rask Madsen Plan to the drafting of the ECSC Treaty as a member of the French delegation to the Paris negotiations and of the working group on institutional matters, Paul Reuter was—in the words of Jean Monnet—‘at the origins of the High Authority’ (Monnet, 1976: 352).21 The other key jurist, Maurice Lagrange, a member of the Conseil d’Etat, only joined the Paris negotiation as adviser to Jean Monnet during the Autumn of 1950, but nevertheless became a central actor in the drafting of the treaty articles relating to the Court of Justice.22 In both cases, the interplay of national and international influences inspired the two jurists in designing the main institutions of the nascent European Community. Whereas the Court of Justice, in Lagrange’s own mind, was modelled on the French Conseil d’Etat, the High Authority, in Reuter’s mind in turn, was modelled on American interstate authorities like the Tennessee Valley Authority (Lagrange, 1979; Reuter, 1979). In both cases however, the High Authority and the Court of Justice were thought of as the first institutions of a European ‘federal system’, as opposed to the Council of Ministers and the Parliamentary Assembly, as well as a way for lawyers to regain a ‘position’ at an international level which they seemed to be losing nationally. As Paul Reuter later put it: ‘In the State structure, the jurist is constrained and dominated by political powers’, whereas ‘in international organisations, it is obvious that the jurist can take up a place that he has lost in the internal order’ (Reuter, 1958: 188–189).23 Indeed, both Reuter and Lagrange were to play key parts, though very different ones, in the continuous development of European law: Maurice Lagrange as the first Advocate General of the CJEC (1952–1963), and Paul Reuter—who rejected the offer made by Robert Schuman to appoint him as the French Judge at the Court24—, as the first agent of the French Government before the Court.25

21 Even before the beginning of the negotiation, on 20 June, Paul Reuter started writing various drafts of the treaty. See Archives Nationales (Paris), 81 AJ 159; Fondation Jean Monnet (Lausanne), AMG 2/4/3. 22 Although Jean Monnet might not have been aware, Maurice Lagrange contributed to the coordination of the drafting of the ‘Statut des Juifs’ on behalf of the Conseil d’Etat and the présidence du Conseil. See Baruch (1997). 23 Although Paul Reuter might not have been aware of the exact figures, there was a constant decline of lawyers (once ‘the modal occupational group among French MPs’) in the recruitment of parliamentary representatives throughout the Fourth Republic. See Best and Gaxie (2000). 24 See his letter to Robert Schuman (30 August 1952): Fondation Jean Monnet, Fonds Robert Schuman, 3/1/327. This position was first offered to P-H Teitgen, before Jacques Rueff finally took on the job. 25 He had only just finished his involvement with the draft when he started writing extensively on the Treaty in a number of French academic journals, including Revue française de science politique, Revue du droit public et de la science politique en France et à l’étranger (1951), and in the book he later published with a foreword by Robert Schuman: La Communauté Européenne du Charbon et de l’Acier (Paris: LGDJ, 1953). Paul Reuter also wrote commentaries on the first decision of the Court of Justice involving the French Government, of which, of course, he was the legal agent: ‘La publicité des barêmes et des écarts de prix dans le marché commun du charbon et de l’acier’, in Droit Social 18(1), January 1955, pp 1–15.

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Focusing on the genesis of a specific European legal field should not lead us to believe, however, that legal entrepreneurs restricted their activities to the new European scene. Paul Reuter, for instance, resuming his academic career as a professor at the Paris Law Faculty, took part in several cases at the European level, acting as lawyer for both the French Government and foreign governments (for example, for the Irish Government in the Lawless Case). He also served at the international level as a private or public arbitrator, including as a member of the Permanent Court of Arbitration (1957) and as a judge of the Supreme Court of Monaco (1959)—of which he eventually became President in 1975. Further, one should not consider the genesis of a European legal field in isolation from the more general restructuring of the international order spurred on by both the political crusade against communism and the increased integration of Western economic markets, in which lawyers could simultaneously take part in the shadow of the Marshall Plan. A good example of this kind of double or triple engagement can be found in the activities of a number of American lawyers. One striking example, George Ball, worked towards transforming the international legal and economic order and, at the same time, towards European unification. A member of the Lend-Lease Administration and of the US Foreign Economic Administration (1942–1944), then director of the US Strategic Bombing Survey in London (1944–1945) and general counsel for the French Supply Council (1945–1946), George Ball was one of the founding partners of the US law firm Cleary, Gotlieb, Steen & Hamilton which opened an office in Paris in 1949. In 1950, he divided his time between a large number of activities which notably included working on the drafting of the ECSC Treaty as (yet another) legal adviser to Jean Monnet (who he had met in Washington during World War II), meanwhile counselling the Marshall Plan Administration (ECA) on matters regarding European Defence and economic administration, and representing Pepsi-Cola in its attempts to gain access to European markets.26 The best example of the close interplay of European and American legal entrepreneurs in the early politics of European integration, however, is the history of the failed attempt to draft a European Constitution in the early fifties. Whereas, as we have seen, the competing projects of European integration had given rise to rather separate institutional entities, this Constitution was regarded as the legal means for unifying this fragmented transnational space into a harmonious federal order under the realm of a European rule of law. The European Constitution After the outbreak of war in Korea, all US plans for economic relief and political unity in Europe became subject to a new priority, ‘the need for a European army’, as one of the key players of American foreign policy in 26

Mudd Library (Princeton), George W Ball Papers, 3/43.

188 Antonin Cohen and Mikael Rask Madsen Europe, General William Donovan, expressed it.27 Following the European Coal and Steel Community (ECSC), a European Defence Community (EDC) was launched in October 1950. Legal entrepreneurs were surprisingly quick to translate this ‘military turn’ of European integration into a legal and political plan consisting of a European Political Community (EPC) with its own Constitution (cf Griffiths, 2000). Even if this enterprise ultimately failed when the EDC was rejected by the French Parliament in August 1954, the Constitution was at the time perceived by many as the true cornerstone of European integration. It received the full support of the European Movement (EM), the pressure group which had been set up after The Hague Congress under the chairmanship of Winston Churchill. It also received substantial support from one of the key organisations of American foreign policy in Europe, the American Committee on United Europe (ACUE), created by Allen Dulles in 1949 under the chairmanship of William Donovan.28 The ACUE financed numerous EM activities—up to half of its operating budget—as well as a fair number of other movements, campaigns and plans for European unity (Aldrich, 2001; see also Winand, 1993). These included the creation of the European Council of Vigilance (ECV), set up in 1950 as a sort of ‘Upper Chamber’ to the Consultative Assembly of the Council of Europe and within which a Juridical Committee was established to help create a constituent assembly (Cohen, 2007). Chaired by the Belgian senator Fernand Dehousse, professor of international law at the University of Liège, it further included Altiero Spinelli, one of the main leaders of the European Union of Federalists, and three international law professors, Hans Nawiasky (University of Munich), Piero Calamandrei (University of Florence) and Georges Scelle (University of Paris). This small circle of high profile law professors immediately drafted a ‘statute for the European constituent assembly’ aimed at the ‘defence of democratic

27 AWD 1/4/1, Copy of a letter from William Donovan to Allen Dulles, 26 September 1950, p 2. It is interesting to note that, as far back as 1942, Paul Reuter concluded that the ‘basic principles’ for a federal organisation of Europe should be the ‘constitution of a federal armed force exercising a monopoly on aviation and tanks’, a ‘federal guarantee on a list of rights for nations and individuals’, the ‘progressive abolition of customs’, the ‘repartition of colonial markets and of prerogatives on raw materials by the federation’, the ‘creation of European international public services’, including ‘superior juridical bodies’, and the ‘unification of private legislation’. See his conference paper, ‘Cultures propres et civilisation communautaire’ in Archives Départementales de l’Isère (Grenoble), 102 J, Ecole Nationale des Cadres d’Uriage. 28 A well-known figure of US postwar secret operations in Europe, Dulles became Deputy Director of Operations (1950) and Director (1953) of the Central Intelligence Agency (CIA). Donovan was the former Director of the Office of Strategic Services (OSS). Both law graduates of elite schools (Columbia (1908) and Princeton (1916)) and partners of prominent Wall Street law firms—Donovan, Leisure, Newton, Lumbard & Irvine being physically situated at a walking distance from Sullivan & Cromwell—Donovan and Dulles’ careers are good examples of the mixture of law, business and politics that rooted early secret service activities into the more general expertise and interests of American foreign policy establishment. On US foreign policy establishment and its links to the legal world, see generally Dezalay and Garth (2002).

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Europe’ whose purpose was to create ‘an Authority invested with the political powers and financial means required to constitute and immediately control a European armed force’29. After Spinelli had succeeded in having article 38 included in the EDC treaty signed the following year in Paris—vesting an ad hoc Assembly with the power to draft such a Constitution—a Study Committee for the European Constitution was formed at the initiative of the EM. The Committee was comprised of Paul-Henri Spaak (then chairman of the EM), Dehousse (secretary general of the committee), the aforementioned Calamandrei, Nawiasky and Spinelli, Arthur Calteux, a member of the Supreme Court of Justice in Luxembourg, Cornelis Van Rij, a practising lawyer, Henri Frenay,30 as well as MPs who also happened to be practising lawyers: Max Becker, Hermann Pünder (Bundestag), Pierre de Félice (Assemblée Nationale) and Lodovico Benvenuti (Camera dei Deputati). Finally, this Committee included two American legal scholars, Robert Bowie and Carl Friedrich, who were asked to carry out a series of comparative studies on ‘federalism’.31 With the financial support of both the Ford Foundation and the ACUE, some thirty lawyers and law professors were brought together for the purpose of studying comparative models of federalism drawn from the experiences of Australia, Canada, the United States, Switzerland and, of course, the new Germany—in what was to become a classic in comparative legal literature on federalism, Studies in Federalism32—and eventually transfer this specifically crafted knowledge to a European federation. The ad hoc Assembly also relied on this substantial and specialised legal expertise when drafting the European Constitution between September 1952 and March 1953. Spaak immediately became chairman of the Assembly, with Pünder as vice-chairman, whereas Benvenuti, Becker and

29 Library of the London School of Economics and Political Science (London), Josephy Papers, 8/12: Projet de Statut de l’Assemblée constituante européenne. 30 One of the most striking examples of the continuities of transnational networks resulting from WW II secret operations can be found in the case of Henri Frenay, head of the French internal Resistance movement Combat, funded by the OSS, who later became one of the main leaders of the European Union of Federalists, as well as in the case of Georges Rebattet, also a member of Combat, who became secretary general of the European Movement. Both movements received generous funding from the American Committee on United Europe. 31 Born in Germany, holding a doctorate from the University of Heidelberg, Friedrich spent his whole career in the US (where he emigrated in 1922) at the Government Department of Harvard University. From 1943 to 1945, he headed the School for Overseas Administration in charge of training the military governors of the liberated countries, before he himself became advisor to the military governor in Germany, General Lucius Clay, from 1946 to 1949. In that capacity, he took part in the drafting of the constitutions of a number of Länder as well as of West Germany itself. As for Robert Bowie, a Harvard Law School graduate and partner of his father’s law firm, Bowie & Burke, he became a law professor at Harvard and legal advisor to the very influential John McCloy in Germany from 1950 to 1952, where he was involved in the negotiations of the ECSC and EDC treaties, before being appointed as Director of the Policy Planning Staff within the State Department. 32 The reference is R Bowie and CJ Friedrich (eds), Studies in Federalism (Boston, Little Brown & Co, 1954).

190 Antonin Cohen and Mikael Rask Madsen Dehousse became members of the Constitutional Committee created within the assembly under the chairmanship of Heinrich von Brentano. This, in particular, explains the fact that all the reports made by the study committee (which continued to meet in parallel) were then put forward to the Constitutional Committee as working papers on the basis of which it was then to conduct its activity. More generally, it should be pointed out that a very high proportion of the members of the ad hoc Assembly were in fact jurists. Of the 78 full members making up this assembly,33 a total of 25 deputies can in fact be attached to the legal field in the broadest sense (among whom there were 20 members of the Bar, 3 magistrates, including the President of the Italian Court of Cassation, Antonio Azara, and 2 ‘maîtres des requêtes’ from the Conseil d’Etat, René Mayer and Michel Debré); 16 belonged to the academic field, including law professors such as Pierre-Henri Teitgen and François de Menthon; 12 belonged to the sector of industry and commerce, including several industrialists and senior company executives; 5 were from the sector of the press; 5 from the trade-union sector; 2 from the medical sector; and 1 from each of the sectors of administration and agriculture. This is even more striking if we take into account that this Constitution was actually drafted by the Constitutional Committee. Among the 21 members of this committee for whom data are available (21 of a total of 26), 14 members belonged to the legal professions (including 10 who were practising lawyers), 4 to the academic field (including Teitgen and Dehousse), 2 to the press sector and one to the industry sector (who in fact was also a lawyer by training). Yet, despite the mobilisation of these politico-legal entrepreneurs who had already been central to a number of other key legal instruments of the period, the Constitution ultimately failed and the ‘constitutionalisation’ and legalisation of Europe was in many ways left to the two Courts set up under the auspices of the Council of Europe and the European Coal and Steel Community.

III. FROM LEGAL COLD WAR TO THE EUROPEAN WAY OF LAW: THE JUDICIARISATION OF EUROPEAN LAW

Our analysis has so far mainly focused on the genesis of a European legal order emerging out of Cold War politics. In what follows, we will briefly

33 Between September 1952 and January 1953, this assembly consisted of 102 members, including the 78 members of the common Assembly of the ECSC to which 8 co-opted members and 16 observers (representatives of the member States of the Council of Europe non-members of the ECSC) were added. It should be emphasised that, of the 78 members of the ad hoc Assembly who were already members of the common Assembly, 38 were simultaneously members of the consultative Assembly of the Council of Europe (48 per cent), and that 6 of the 8 co-opted members (75 per cent) and 12 of the 16 observers (75 per cent) where also members of this assembly, which gives a total of 56 out of 103 (54 per cent).

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outline the initial institutionalisation of European law at the European Court of Human Rights and the Court of Justice of the European Communities. It is our claim that focusing on these two defining moments—the genesis and subsequent institutionalisation—is essential for understanding not only how a set of legal entrepreneurs contributed to the definition of a European legal order but also how they subsequently helped ‘legalise’ a set of new European instruments in the sense of making them legally and politically operative. Thus, whereas the subject of our above analysis has mainly been the politics of legal entrepreneurs in the creation of Europe, the subject of the following, the process of judiciarisation and legalisation of Europe by the two European courts, suggests a gradual transformation of these early political dynamics of Europeanisation with the rise of more legal practices. The ‘legal cold warriors’, who had dominated initial political bargaining were increasingly supplemented or even occasionally substituted by other legal experts which together had the effect of a new, though largely incomplete, differentiation of European law from European politics. Because of the limited scope of this chapter, we will mainly focus on the social characteristics of the first European judges as a way of understanding the initial institutionalisation of European law. While the legal basis of these Courts and particularly their first landmark decisions are well-known and have been researched elsewhere (for example Stone, 2004; Alter, 2001; Weiler, 1999), we propose here to take a considerably different view of the Courts which emphasises their internal social configuration and history. In what follows, we will therefore mainly provide data made up of the socio-professional characteristics of the first generation of European judges, commissioners and advocates general and use this data to interpret the institutionalisation of European law at these two Courts. Inaugurated in 1952, the first European Court to open its doors was the CJEC. With the exception of Clerk Albert Van Houtte, born in 1914, all the judges and advocate generals of the CJEC were well over fifty when they entered the Court. As a social group, they were in fact relatively heterogeneous (at least when compared to the first judges of the ECHR) having professional backgrounds which ranged from national judiciaries, private legal practice, banking, politics, trade-unionism and the law faculty. Box 2 provides an overview of their main professional backgrounds.

Box 2 Of the first 7 judges, 3 had had long careers as magistrates in their respective national legal systems prior to appointment: the Italian Judge Massimo Pilotti (1952–1957), the German Judge Otto Riese (1952–1963) and Judge Charles Hammes (1952–1967) of Luxembourg. All three doctors in law, they were members of the highest judicial institutions of

192 Antonin Cohen and Mikael Rask Madsen their respective countries at the time of their appointment to the CJEC (aged respectively 73, 58 and 54): the Italian Court of Cassation (1949), of which Pilotti was the first honorary president, Riese of the German Federal Court in Karlsruhe (1951), and Hammes of the Superior Court of Justice of Luxembourg (1944). Another noteworthy career path towards the CJEC was in the financial administration of the State as in the cases of the French Judge Jacques Rueff (1952–1962) and the Dutch Judge Adrianus Van Kleffens (1952–1958). A member of the French Inspection des Finances, Rueff had pursued most of his career as a civil servant in the French central financial administration (the Ministry of Finance and the National Bank of France), whereas Van Kleffens had entered the Ministry of Economic Affairs after having been in charge of the litigation department of the Royal Dutch Navigation Company. At the opposite end of the spectrum, the Belgian Judge Louis Delvaux (1952–1966) and the ‘Seventh’ Judge, Petrus Serrarens (1952–1958), had both pursued political careers before being appointed to the Court. A doctor in law and practising lawyer, Delvaux had been a Belgian MP (1936 to 1946), and Minister of Agriculture (1945), before returning to private practice and taking up a number of administrative responsibilities, for example, at the Office des Séquestres and the National Bank of Belgium; Serrarens had been secretary general of the International Confederation of Christian Trade-Unions (1920–1952) as well as a Dutch MP.

While, as shown in Box 2, the judges had pursued relatively different national career paths prior to appointment to the CJEC—which in some instances included external or temporary university positions, as in the case of Hammes (University of Brussels), Riese (University of Lausanne) and Rueff (Ecole Libre des Sciences Politiques)—most of them had in common experience of international law and politics, including treaty negotiation and drafting. In the case of Pilotti, his involvement on the interwar international legal scene practically made up a whole ‘second career’. He had been a member of the Italian delegation to the Paris Peace Conference of 1919 and later to the international conferences of Spa (1920) and Locarno (1924) before joining the League of Nations, of which he eventually became the Deputy Secretary General (1932–1937). In 1949, he was finally appointed to the Permanent Court of Arbitration (1949). Coming from more specialised domains of international legal activities, Riese had been a participant at the majority of the international conferences on air and space law during the interwar period; Rueff, in turn, had participated in most international negotiations on reparations and damages related to World War II.

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Of the 7 judges, only 3 stayed in office until 1958 (including first president of the Court Massimo Pilotti), 2 until 1962 and 2 until 1967, while the two advocates general stayed in office until, respectively, 1963 and 1973. With the exception of Advocate General Karl Römer, by 1967 the court had been completely renewed. In fact, by 1963–1964, at the time of the landmark decisions of Costa v Enel and Van Gend & Loos, 5 of the 7 judges had been replaced. Among the new judges, some followed similar paths to the Court: Robert Lecourt (1962–1976), barrister, member of the French Parliament from 1946, had been a Minister of Justice before he succeeded Rueff; Walter Strauss (1963–1970) was an administrative State Secretary at the German Federal Ministry of Justice (1950–1963) before he succeeded Riese. However, a younger academic elite was making its entry to the Court: Andreas Donner (1958–1979) was only 39 when he became the Dutch Judge. Son of the President of the Dutch Court of Cassation, his entire career had been as a professor of constitutional and administrative law at the University of Amsterdam (1945–1958) before he became president of the CJEC. Alberto Trabucchi (1961–1970) was a Professor in Private Law at the University of Padua when he succeeded Nicola Catalano (1957–1961), former Director of the Legal Service of the High Authority (who had replaced Pilotti). Compared to the social and political profiles of the judges and advocate generals of the CJEC, the ECHR system in Strasbourg34 recruited from the outset a more academic-oriented batch of judges and commissioners, as well as a set of jurists who almost all held eminent status in their respective national legal fields. Of the first 15 judges of the ECHR, 9 were academics and for the most part specialised in international law: Kemal Fikret Arik was professor of private international law and Dean of the Faculty of Political Science at the University of Ankara; Frederik Mari Van Asbeck was professor of international law at the University of Leyden; Giorgio Balladore Pallieri was professor of public international law and Dean of the Law Faculty of the Università Cattolica del Sacro Cuore in Milan; Ake Ernst Vilhelm Holmback had been Rector of the University of Uppsala, and Georges Maridakis, Rector of the University of Athens; Hermann Mosler was professor of international law at the University of Heidelberg; the proactive Henri Rollin was professor of international law at the University of Brussels; the Danish legal philosopher and expert of public international law and constitutional law, Alf Ross, was professor at the University of Copenhagen; the eminent expert of public international law, Alfred Verdross, was Dean of the Faculty of the University of Vienna. Magistrates were a minority: Einar Arnalds (Civil Court of Reykjavik), 34 The ECHR system came into force a few years after the CJEC. In 1955, the Commission was competent to receive individual applications against contracting States and, in 1959, the Court was inaugurated.

194 Antonin Cohen and Mikael Rask Madsen René Cassin (Vice-President of the French Conseil d’Etat), Lord McNair (former President of the International Court of Justice), Eugene Rodenbourg (President of the Court of Luxembourg), and Terje Wold (President of the Supreme Court of Norway), and many of them, like René Cassin, were working at the crossroads of academia and the judiciary. Later there were other well-known high-profile law professors, such as the Dutch Gerardus Joharner Wiarda (administrative law), Sir Humphrey Waldock (public international law) and many others. As we have suggested above, the main characteristics of these agents’ social trajectory should not overshadow the fact that many of them had indeed more specialisation. In the case of legal academics, they typically used their university chairs as a springboard—and legitimacy—for being involved in international negotiations and legal practice. This was for example the case of the German judge, Hermann Mosler, who had been a member of the German delegation to the Schuman Plan as part of the working group on institutional matters with Paul Reuter and went on to become a judge at the International Court of Justice. René Cassin, one of the founding fathers of the Universal Declaration of Human Rights, made a career out of skilfully combining international law and politics with an academic career and a position as Vice-President of the French Conseil d’État. Also, among the judges and commissioners of the ECHR system one finds jurists with direct engagement in the foreign services, for example the commissioner Sture Petrén, chief Legal Adviser in the Swedish Ministry of Foreign Affairs, who had been a key player in the drafting of the Convention as head of the Conference of Senior Officials. Compared to the CJEC, the judges and commissioners in Strasbourg tended to remain at the Court a little longer, and the Court was not renewed until the late 1970s.35

‘Collective Biographies’ and the Institutionalisation of European Law These biographic details on the first European judges and advocates general provide a snapshot of the initial social construction of these two courts in terms of collective legal, social and political capitals. This ‘collective biography’ of the two courts also provides a—somewhat unexplored—analytical key for understanding their institutionalisation vis-à-vis national levels of law and particularly as regards the pressing issues of making these Courts operative as well as supreme. In basic terms, the growth in the number

35 A shift in the jurisprudence of the European Court in Strasbourg was to take place in the late 1970s. The first group of judges and commissioners had on the whole been replaced by this time, yet among the ‘new’ judges one finds the industrious Pierre-Henri Teitgen who was appointed in 1976 to complete the term of René Cassin.

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of European judiciaries in Luxembourg and Strasbourg involved among other things the development of an almost novel legal knowledge of the new European legal subjects of community law and human rights law. Furthermore, a key task consisted of ‘convincing’ the Member States that they would provide sound and diplomatically acceptable interpretations of what at the end of the day remained highly uncertain legal texts. One of the ways in which these institutions could relatively rapidly enhance their credibility was the appointment strategies that continuously bestowed privilege upon very distinguished jurists. Thereby, in a more abstract sense, these institutions became the site for an accumulation of very significant legal capitals (as well as social and political capitals), which almost immediately secured them a certain eminence in national legal fields. In other words, operating in a highly fluid European legal space dependent not only upon national political acceptance but also on national legal acceptance, the fact that the Courts were made up of an international and European elite of jurists coming from the highest national judiciary, academic or political spheres was key to their ability to impose themselves in the first key decisions: for example the cases of Van Gend & Loos Costa v Enel or before the CJEC or the Cyprus cases of the Human Rights Commission and the Lawless case before the ECHR. Another interesting analytical finding, which can be drawn from the collective biographies of the two Courts, was their relative difference when measured against the career patterns of the jurists prior to their appointment to these institutions. As the ‘institutional habitus’ of these Courts was to a large extent co-produced by their respective collective capitals, the differences between the two Courts should be underscored here. It is apparent that whereas the ECHR system was a rather homogeneous body of jurists who were for the most part academically highly skilled and respected and had general international/cosmopolitan profiles, the CJEC, on the contrary, was from the beginning made up of a far more heterogeneous group of jurists. These relative differences obviously correspond with the two different ‘paths’ of European integration they were to ‘legalise’, which again were the product of the divisions and polemics of the founding moments of European integration. In turn, this produced quite different bodies of jurisprudence: a more abstract and ‘noble’ common human rights law as opposed to a more practical and ‘down to earth’ law of the European market. This further corresponded with the differences in social profiles of the jurists involved: the fact that the ‘crème de la crème’ of internationalist academic jurists gathered in Strasbourg unsurprisingly gave the jurisprudence a certain dimension of Professorenrecht of general relevance to vast areas of social life, while the CJEC jurisprudence was produced by professional practitioners with more specialised and practical knowledge. At the same time, the Courts had in common the objective of enforcing, noblesse oblige, their supremacy and the effectiveness of their decisions.

196 Antonin Cohen and Mikael Rask Madsen The two Courts would subsequently increasingly differentiate in terms of knowledge and jurisprudence as a product of their divergent mandates and the different paths taken by the organisations of which they were a part (the Council of Europe and the European Communities), but this differentiation should not overshadow the fact that, at this early point, they faced many similar challenges. One of these common challenges was obviously the international-national interplay which would take the form of comparable legal concepts, for example the principle of the margin of appreciation of the ECHR. They were also, to a large extent, influenced by the same Europeanist legal milieus. The fact that the post-war legal elite was rather small was reflected in the way that these jurists tended to circulate between the different extremes of the emerging European field. As shown by Antoine Vauchez, these Europeanist jurists—following a familiar path to that of the legal world—switched between acting for private subjects and Member States before the Courts, and being continuously involved in the promotion and further expansion of these new legal regimes as participants in the negotiation of the expanding body of European law. They also participated in the new European professional legal associations and their codification enterprises, as well as in the institutionalisation of specialised academic disciplines at the national level, including research centres, scholarly journals, university courses, etc (Vauchez, 2007). This reflected what was in fact a growing set of opportunities for pursuing European law. With few exceptions—for example the industrious Paul Reuter, who was a part of the Irish defence in the Lawless case before the ECHR after having been the French agent before the CJEC—circulation between the two institutional spheres was, at least in the early years, quite limited. Within each of these spheres, however, such circulation was rather intense and jurists went from acting as counsel to become European judges. This was the case with the Belgian international law professor, lawyer and senator, Henri Rolin, who had, among other things participated in the drafting of the European Convention on Human Rights and appeared as counsel for Greece in the Cyprus cases, as well as being involved in numerous international legal activities (cf Devleeshouwer, 1994). Well into the 1960s, these two Courts—and more generally the emerging European legal field—were influenced by this continuous movement of the participating lawyers as well as the limited differentiation between the political promotion and legal implementation of European law. Basically, the ideals of the separation of law and politics, of justice and government, as well as the practical division of labour between specialised groups of legal and political professionals, which had become a general trait of Western democracies during the twentieth century, was not yet cemented when it came to ‘Europe’. On the contrary, the ‘freedom of movement’ that Europe allowed these jurists was probably one of its most attractive features. European law, at least at the time considered in this chapter, seemed very much to have remained the turf for this small but expanding and gradually

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changing entrepreneurial legal milieu which had emerged with the striking post-war political transformations of Europe. While this entrepreneurship would indeed continue to be an important trait of European law—though obviously diminishing as a result of the enhanced processes of institutionalisation and legalisation—the basic evolutionary character of European law—and the continuous political changes of the European organisations of which it was a part—assured that there was plenty of opportunities for combining a more purely legal engagement with a political one.

IV. AN EMERGING EUROPEAN LEGAL FIELD: CONCLUSION

In light of these final characteristics of the nascent European legal field, it might be tempting to jump to the conclusion that the post-war European legal field did not in fact constitute a proper field in the Bourdieuian sense, but instead a loosely institutionalised social space where national agents could seek new resources for strengthening their national and international positions. In this regard, the ‘titles’ according to which these agents could intervene in this transnational space (either academic titles or professional titles) were at the end of the day dependent upon their internal value in the respective national fields and, ultimately, on the official seal of each of their national States. Drawing such a conclusion however excludes the clear heuristic and intellectual interest there is in drawing the contours of what might better be described as an emerging European legal field and, thereby, suggesting the initial structuration of this nascent social space (Dezalay and Madsen, 2006). Using this approach might also help to underline the fact that, with the emergence of this social space, a specific process of competition took place whereby the agents could build on new forms of capital and through that—consciously and unconsciously—contribute to its structuration. As shown by Harm Schepel and Rein Wesseling, these emerging internal logics shaped by a transnational community of jurists partly composed of the staff of administrative and judicial European institutions, legal academics and practitioners, greatly influenced the specifics of European Law (Schepel and Wesseling, 1997). In turn, transnational communities of legal practitioners specialising in European law, as shown elsewhere, used these European accomplishments in their national legal battles whereby European law became the subject of a continuous import-export between the European field and national legal fields (cf Madsen, 2004). Analysing this social space as an emerging European legal field goes beyond the mere heuristic virtues of a historical description of a rather complex and opaque set of social relations where politics and law, academia and the judiciary, the national and the international, were intertwined. It recaptures the way in which the original structuration of this social space contributed to a set of more enduring internal logics. Mainly structured

198 Antonin Cohen and Mikael Rask Madsen around opposing forms of capitals resulting from different social trajectories, the emerging European legal field was internally defined by the opposition between abstract principles of universal value and economic or political contingencies of practical value. This helps us to understand the more specific features of, for example, the two central institutions of the field (the ECHR on the international-academic-universal side and the CJEC on the national-judiciary-practical side), but it also highlights the internal tensions of each of the relative distinct legal spheres of human rights law and community law: in the case of the CJEC, the repetitive claim that its jurisprudence was a way to ‘take European law out of the hands of politicians and bureaucrats’, or, in the case of the ECHR, that this institution effectively and enduringly secured European democracy against the irrationalities of the day-to-day politics of the Member States. For all agents entering the field, this specific structuration imposed a permanent tension between abstract and universal legal principles and the contingent nature of dayto-day State politics and economics, as well as between the supremacy of these European ‘supreme courts’ and questions of finding practical and enforceable legal solutions acceptable to the Member States. Given these unique characteristics, it would also be a mistake to analyse this transnational field in the same way as national legal fields. Because of its high degree of heterogeneity and its intrinsic situation at the crossroads of national and international levels of law, it tended to produce a particular mixture of capitals, or as Yves Dezalay put it, a specific portfolio of capitals (Dezalay, 2004). As in any other social universe, the agents were hardly acting according to a scheme of rational choice, yet they were reasonable in their strategies. In a transnational context where the social boundaries were far less apparent or immediately constraining than at home, this ‘reasonableness’ led them to ‘invest’ in European integration as both a specific legal and political opportunity and as a continuation of their work in a new context. The fluidity of the boundaries of this new terrain of action made these—somewhat risky—strategies efficient in conquering specific positions for the jurists as ‘expert-brokers’ at the crossroads of a multi-dimensional transnational space. These jurists already possessed a documented expertise on the ‘rational functioning of the State’ deriving from their national practices, and this entitled them to gain relatively influential positions in the political bargaining process that post-war European integration in many ways was. The fact that the individual jurists mobilised in this context seemed to have virtually ‘specialised’ in traversing the boundaries of law and politics by investing in both national and international levels of law and politics only made them even more central in a construction dominated by finding legal solutions to political and economic challenges. This is of course not to claim that jurists somehow created Europe, but rather to emphasise that the structural dimension of the rise of Europe benefited these legal actors and that they had a fundamental and often overlooked impact on its genesis.

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REFERENCES Aldrich, RJ (2001) The Hidden Hand: Britain, America and Cold War Secret Intelligence (London, John Murray). Alter, K (2001) Establishing the Supremacy of European Law: The Making of an International Rule of Law in Europe (Oxford, Oxford University Press). Baruch, MO (1997) Servir l’Etat français. L’administration en France de 1940 à 1944 (Paris, Fayard). Best, H and Gaxie, D (2000) ‘Detours to Modernity: Long-Term Trends of Parliamentary Recruitment in Republican France 1848–1999’ in H Best and M Cotta (eds), Parliamentary Representatives in Europe 1848–2000: Legislative Recruitment and Careers in Eleven European Countries (Oxford, Oxford University Press). Bourdieu, P (1992) Les règles de l’art. Genèse et structure du champ littéraire (Paris, Seuil). Bowie, R and Friedrich, CJ (1954) Studies in Federalism (Boston, Little Brown & Co). Cohen, A (1998) ‘Le Plan Schuman de Paul Reuter: Entre communauté nationale et fédération européenne’ Revue française de science politique 48(5), 645–663. —— (forthcoming) ‘De Congrès en assemblées. La structuration de l’espace politique transnational européen au lendemain de la guerre’ Politique européenne. Charle, C (2001) La crise des sociétés impériales: Allemagne, France, GrandeBretagne 1900–1940 (Paris, Seuil). Devleeshouwer, R (1994) Henri Rolin 1891–1973, Une voix singulière, une voix solitaire (Bruxelles, Éditions de l’Université de Bruxelles). Dezalay, Y (2004) ‘Les courtiers de l’international: Héritiers cosmopolites, mercenaires de l’impérialisme et missionnaires de l’universel’ Actes de la recherche en sciences sociales, no 151–152, 5–34. Dezalay, Y and Garth, BG (2002) The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States (Chicago, University of Chicago Press). Dezalay, Y, and Madsen, MR (2006) ‘La construction européenne au carrefour du national et de l’international’ in A Cohen, B Lacroix and P Riutort (eds), Les formes de l’activité politique: Eléments d’analyse sociologique XVIIIe–XXe siècle (Paris, Presses Universitaires de France). Elias, N (1983) The Court Society (Oxford, Blackwell). —— (1994) The Civilizing Process. Sociogenetic and Psychogenetic Investigations (Oxford, Blackwell). Griffiths, RT (2000) Europe’s First Constitution: The European Political Community, 1952–1954 (London, Federal Trust). Koskenniemi, M (2002) The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University press). Lagrange, M (1979) ‘La Cour de justice des Communautés européennes du Plan Schuman à l’Union européenne (1976)’ in P-H Teitgen (ed.), Mélanges Fernand Dehousse, II, (Paris-Bruxelles, Fernand Nathan-Labor). Madsen, MR (2004) ‘France, the UK and ‘Boomerang’ of the Internationalisation of Human Rights (1945–2000)’ in S Halliday and P Schmidt (eds), Human Rights

200 Antonin Cohen and Mikael Rask Madsen Brought Home: Socio-Legal Perspectives on Human Rights in the National Context (Oxford, Hart Publishing). Madsen, MR (2005), L’Emergence d’un champ des droits de l’homme dans les pays européens : enjeux professionnels et stratégies d’Etat au carrefour du droit et de la politique (France, Grande-Bretagne et pays scandinaves, 1945–2000). Doctoral thesis defended at the École des Hautes Études en Sciences Sociales, Paris. Madsen, MR and Vauchez, A (2005) ‘European Constitutionalism at the Cradle: Law and Lawyers in the Construction of European Political Orders (1920–1960)’ in A Jettinghoff and H Schepel, In Lawyers’ Circles: Lawyers and European Legal Integration (Special Issue of Recht der Werkelikheid). Merrills, JG and Robertson, AH (2001) Human Rights in Europe: A Study of the European Convention on Human Rights (Manchester, Manchester University Press). Milward, AS (1992) The European Rescue of the Nation-State (London, Routledge). Monnet, J (1976) Mémoires (Paris, Fayard). Reuter, P (1958) ‘Techniciens et politiques dans l’organisation internationale’ in G Berger (ed.), Politique et technique (Paris, Puf). —— (1971) ‘L’avenir de la supranationalité’ Cahier du Centre d’observation du mouvement des idées no. 50, 18. —— (1979) ‘Aux origines du Plan Schuman’ in P-H Teitgen (ed), Mélanges Fernand Dehousse (Paris-Bruxelles, Fernand Nathan-Labor). Sacriste, G and Vauchez, A (2004) ‘Le plan Briand d’Union fédérale européenne ou l’impossible autonomie du constitutionnalisme européen des années 1920’ in G Pécout (ed), Frontières de l’Europe XIX–XXème (Paris, ENS Ulm). Schepel, H and Wesseling, R (1997) ‘The Legal Community: Judges, Lawyers, Officials and Clerks in the Writing of Europe’ European Law Journal 3(2), 165–188. Simpson, AWB (2004), Human Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford, Oxford University Press). Stone Sweet, A (2004) The Judicial Construction of Europe (Oxford, Oxford University Press). Teitgen, F (1998) En hommage à Pierre-Henri Teitgen (Bruxelles, Buryland). Vauchez, A ‘L’Europe par le droit: Analyser l’émergence d’une communauté juridique transnationale’. Paper presented at the Conference La Constitution européenne. Genèses et usages, Amiens June 16, 2005. Weiler, JHH (1999) The Constitution of Europe. ‘Do the New Clothes Have an Emperor?’ and other Essays on European Integration (Cambridge, Cambridge University Press). Winand, P (1993) Eisenhower, Kennedy and the United States of Europe (New York, St Martin’s Press). OTHER SOURCES Archives Nationales (Paris), 81 AJ 159. AWD 1/4/1, Copy of a letter from William Donovan to Allen Dulles, 26 September 1950

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7 The Transformation of Sub-State Nationalism in Conflicted Societies: the Impact of European Constitutionalism VICTORIA JENNETT

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ub-state nationalists pursuing self-determination within the European Union (EU) do so within a new supranational or postnational political framework that has transformed what it means to be sovereign. Their host states, the Member States of the EU, are struggling to redefine their exclusive sovereignty claims in light of ‘sharing’ or ‘pooling’ or ‘transferring’ some previously sovereign competencies to the supranational institutions of Europe (Kostaopoulou, 2002; Schmitter 1996 and MacCormick, 1999). Sub-state nationalists, therefore, are being confronted with the reality that the pursuit of sovereign, independent statehood may not be the Holy Grail it once was. EU constitutionalism offers new possibilities for political accommodation and impacts on how sub-state nationalists articulate their self-determinist aspirations. In Part I, the nature of the aspirations that motivate sub-state nationalists to seek political authority and the challenges of accommodating sub-state nationalist aspirations within a multi-national polity (such as the EU) are examined, followed by, in part II, an analysis of how nationalist aspirations are being transformed in light of multi-national political communities, especially the EU’s way of constitutional innovation. Part III describes the kinds of EU values that inform the substance of the transformed sub-state nationalism. Part IV offers some concluding remarks.

I. THE NATURE OF SUB-STATE NATIONALISM AND CHALLENGES OF ACCOMMODATION

Sub-state nationalism, like all nationalisms, might be said to be based on two impulses: first it favours creating solidarity bonds amongst a group

204 Victoria Jennett which imagines itself to be separate and distinct from others ie sub-state nationalists feel bonded by a particular ‘culture’ or ‘identity’; second, the group seeks ‘self-determination’ ie it wants to express its own particular culture through a political entity (Guibernau, 2001). The particular motivations behind a nationalist’s desire for political authority may be characterised, therefore, as a combination of expressive and instrumental reasons for seeking political authority. Expressive reasons for seeking political authority are to do with the desire to express some idea of the group’s collective identity. Instrumental reasons for seeking political authority are more outward-looking in scope and are to do with broader reasons concerning ideas of the best way to govern a particular nationalist group.

(A) Instrumental Reasons Instrumental reasons for seeking political authority may be defined as more grounded in the practical political benefits of achieving control over one’s affairs; benefits that include decision-making power and economic power. It is possible to discern three instrumental reasons why sub-state nationalists seek political authority. 1. Subsidiarity First, in principle, sub-state nationalists believe that the scale of government is important in that a small state is the most appropriate level at which to manage state affairs and to respond to the distinctiveness of communities. The small state will, naturally, coincide with the perceived nation because, it is believed, a nation is the best way to build a state; the ‘nation to state’ argument (Miller, 1995). The argument is therefore premised on the virtue of ‘national bonds’ in legitimising political authority. This can be a sincere belief that a state operates best when it coincides with a national community since individuals will be better persuaded to participate and cooperate in a political community if that political community is made up of nationals like them. Or the argument can move from ‘state to nation’: a well functioning polity recognises the utility of fostering national sentiment to bolster support for and efficiency within the polity (Kedourie, 1960). Within EU constitutionalism, ‘subsidiarity’ is shorthand for a debate about affording Member States competencies in policy areas where they are better equipped to take decisions than the EU institutions. EU subsidiarity is concerned with allocating power to those affected by the power, NOT with allocating power to national groups or regional groups with communal identities (Barber, 2005). Such subsidiarity demands are theoretically capable of being met within the EU polity. Indeed the principle of subsidiarity is enshrined in the

The Impact of European Constitutionalism 205 constitutional texts of the EU (Article 5 Treaty Establishing the European Community and Article I-11(3) Draft Constitution). Although subsidiarity is commonly understood to refer to the relationship between the EU institutions and the national parliaments, under the (now stalled) ‘Treaty establishing a Constitution for Europe’ regional and local levels are specifically mentioned as levels of government within the EU polity. 2. Exploit Indigenous Resources Second, nationalists will have a collective self-interest in harnessing economic and material resources available to his/her community. 3. Enforce Preferred Abstract Political Values Third, nationalists desire political authority because they wish to faithfully express substantive political values that are preferred within their community. Miller addresses this aspect of a nationalist’s motivation for seeking political authority (Miller, 1995). In fact, Miller discerns three claims that nationalists might reasonably argue in justifying sovereignty claims based on the protection of their identity. The first of his three reasons may be categorised as an instrumental reason and will be described here. The other two reasons may be described as expressive reasons and are dealt with in the next section. Miller describes this nationalist desire for political authority as feeding into social justice arguments: Where a national state exists, it can develop and regulate a set of institutions— what Rawls has called ‘the basic structure of society’—which together allocate rights and responsibilities to people in the way that their conception of social justice demands. (Miller, 1995: 83)

Obviously a particular conception of social justice can be effected by political systems that are not determined by a nationality, but the force of the argument is clearer where a political system is involved with transferring resources to a poor area within its polity. If the people in the poorer area are of the same nation and share the same nationality then the more prosperous members of the community are less likely to resent such transfers of resources and may endorse those transfers because they feel solidarity based on a shared identity. This aspect is categorised as instrumental because although the group’s common identity convinces members of the community to participate in the ‘basic structure of society’, the basic structure itself evolves from common political values that are not themselves contingent upon the group’s common identity.

206 Victoria Jennett (B) Expressive Reasons Sub-state nationalists have other reasons for seeking political authority which are to do with the recognition of their collective identity as different from the identity set forth by the nation state or the polity within which they exist. These expressive reasons pose a greater problem for accommodation within a multi-national polity since nationalists may seek a form of political authority within which their ‘culture’, their ‘identity’ must be reflected and, perhaps, dominate to the exclusion of other cultures. Three expressive reasons may be discerned: 1. Protect Common Culture The first of these expressive reasons for seeking political authority is a desire to express and defend a group’s common culture. Miller describes this claim as a belief that sovereignty is the best or only means of protecting a national culture. Although national culture is of course only one cultural resource (others may be family, ethnic group or class) it is an important one that not only: gives its bearers a sense of where they belong and provides an historical identity, but also provides them with a background against which more individual choices about how to live can be made. (Miller, 1995: 83)

He argues that seeking sovereignty to protect a national culture is valid because of the public dimension of cultural claims. Education, the media and the arts are all vehicles for national culture expression and nationalists that care about the preservation of their identity cognise that the apparatus of the state is vital in providing an environment in which their culture can develop. 2. Enforce Political Values Based on Cultural Identity A second expressive reason why nationalists may be said to seek political authority is that their common cultural identity binds them into a group force with the potential to become a self-governing community. Canovan describes this as a ‘battery of power’ (Canovan, 1996: 80). The precise nature of the common cultural identity itself is not key to understanding this dimension; rather it is the capacity for common action that flows from the common cultural affinity that is significant. This is close to the third instrumental reason why nationalists may be said to seek political authority in that the third instrumental reason refers to a desire to make common political cause on the grounds of political values held in common. However the third instrumental reason is not contingent upon an underlying common identity, whereas this expressive reason is: in this second expressive

The Impact of European Constitutionalism 207 dimension the underlying common cultural identity moulds a group into a community of action. The group’s togetherness and resolve is fuelled by their view of themselves as bound by a common cultural identity. Of course the political beliefs that the third instrumental reason seeks to express may flow from and reinforce the common identity or culture of the group but it remains conceptually different from this second expressive reason. Here nationalists are motivated to seek autonomy on the basis of the group’s common identity as opposed to on the basis of a desire to develop certain preferred abstract political values. Miller writes that this argument ‘supposes that people have an interest in shaping the world in association with others with whom they identify.’ (Miller, 1995: 88) For this argument to be reasonable and valid the system in which a group of people shape their world must be democratic. This kind of argument, which seems distastefully parochial, is more palatably articulated on the grounds that political systems rely to a large extent on the voluntary cooperation of its citizens. Citizens are more inclined to cooperate if there is mutual trust between the citizens and the state: mutual trust is fostered by a shared identity that encourages shared loyalties. A nation state is defined on territorial grounds and is open to different ethnic groups so one need not have to defend this claim on exclusive racist grounds, although a nation state that embraces multiculturalism is likely to have difficulties in fostering mutual trust on national identity grounds. 3. Symbolic Recognition The final expressive reason for seeking political authority is to gain recognition of and respect for the collective identity and culture of the nationalist group. The bare fact of institutionalised political authority itself or symbolic recognition (Bourdieu, 1991) may be just as important as an expression of recognition for nationalists, as their desire to use those institutions to defend their common culture (expressive reason one) and to pursue common political values as a community of action powered by their common cultural identity (expressive reason two). While not underestimating the importance of symbolic recognition it is also important to refrain from fetishising sovereignty. Sovereignty does not have to coincide with nationalism: a region can be distinctive without being a nation just as nations can flourish outside of sovereign authority.

(C) How multi-national political communities can accommodate instrumental and expressive nationalism This section attempts to answer the conceptual question of whether and how it is possible to accommodate both the instrumental and, particularly,

208 Victoria Jennett the expressive dimensions of sub-state nationalism through arrangements short of sovereignty. Both the multi-national state level and the post-national EU level of political community can contribute to the accommodation of the three instrumental dimensions and, arguably, the first two expressive dimensions of sub-state nationalism. However it is only the post-national EU level that, uniquely, offers promise in accommodating the third expressive dimension of sub-state nationalism in which sovereignty is sought as an expression of symbolic recognition of—and public respect for—a national identity. The EU is a novel form of political community that, unlike the multi-national state level, does not have nationalist overtones: it is a non-national level of political community. The three instrumental reasons for seeking political authority are most easily accommodated in arrangements short of sovereignty and their accommodation can—and does—take place at both the multi-national state and EU levels. The features of the EU political community that accommodate sub-state nationalism are, in brief, the implementation of EU regional policy and the articulation of the principle of subsidiarity (which can empower regional political actors). The post-national EU order accommodates the sub-state nationalist’s first instrumental aspiration of locating political authority locally. The second instrumental dimension is also satisfied in that such local political authority enables nationalists to exploit resources indigenous to their region. The third instrumental dimension concerning nationalists’ desire to enforce substantive abstract political values that are preferred within their community is also accommodated by the operation of the EU political community (as well as devolution or the like within a multi-national state). Crucially, the successful accommodation of the three instrumental dimensions will have an impact on the fervour of the expressive demands: the emotional power and resonance of expressive aspirations may be diffused by the satisfaction of instrumental demands. As a result the expressive demands may be easier to accommodate in arrangements short of sovereignty. The first and second expressive dimensions regarding (1) protecting a common culture and (2) fulfilling the potential of a community of cultural affinity may also be satisfied at levels short of sovereignty located within the multi-national state level as well as at the post-national EU level. Regarding the more problematic accommodation of the third expressive dimension—the belief that sovereign recognition is essential for the dignity of a national identity—the EU represents a new experiment in the formation of a political community that pioneers the untying of sovereign authority from national identity. Cutting the political ties between nationalism and sovereignty depends upon the extent of the EU’s political authority, which is arguably ever-expanding. If the EU increases its political authority

The Impact of European Constitutionalism 209 the sub-state nationalist pursuit of sovereignty becomes less urgent, since the real locus of political authority is within the post-national configuration, not within the traditional nation state polity. Within the EU political community, sovereign authority does not bestow recognition or dignity on the collective identity and culture of a national group. The nation state members of the EU may accede to the Union on the basis that they are sovereign nations but within the EU their sovereignty is ‘pooled’ or ‘challenged’ and their collective political authority is not justified on nation-state grounds. Nation states within Europe are successful and respected even though they: no longer hold the traditional sovereign prerogatives of legal supremacy, coinage of money, and genuinely independent military forces able to wage war. (Keohane, 2002: 755)

The experience of European countries has shown that allowing authorities external to the nation-state context (ie the supranational institutions of the EU) to co-ordinate policy for all countries increases the effectiveness of each country. The political community at the post-national level is bonded by values that are not just particular to one national identity. Put another way, the political authority of the post-national environment is legitimised by values or criteria other than nationalist values. By participating in the EU political community all national groups and citizens have the potential to shape and inform the ‘high cultural’ values or bonds of the EU that bind all the peoples of Europe within a post-national political community—and similarly be shaped themselves by those high cultural bonds. The EU political community bestows political authority on and recognises regions (which includes recognition of sub-nation state national groups) because they consist of peoples and participants in the European political community as opposed to merely peoples and participants in national communities.

II. THE TRANSFORMATION OF NATIONALISM

In this part, the characteristics of the political communities, especially the EU political community, that can accommodate and transform nationalism will be considered in more detail. In section (A) Yael Tamir’s theory of liberal nationalism is analysed. Tamir sets out the conceptual notions by which national groups and their political communities are created. These conceptual notions, she argues, justify the politicisation of a national culture, that is to say, she maintains it is right and proper that a national culture is expressed in a political community as opposed to merely being articulated through non-political arrangements in the way that, for instance, religion is separated from the

210 Victoria Jennett political sphere in many liberal democracies. The focus of this section is to illuminate the conceptual process of creating a national political community in order to demonstrate that nationalism is intrinsically capable of expression in a political community that includes other national groups and minorities. In other words the theory of liberal nationalism shows that a political community that accommodates instrumental and expressive nationalist aspirations need not be an exclusive political community that is intolerant of the ‘other’. The discussion that follows in section (B) goes back a step and looks at how a particular national culture is constructed. Gellner interrogates the legitimacy of national cultures: Tamir’s theory proceeds from the basis that a national culture is a legitimate foundation upon which to build a political community whereas Gellner, in describing how a national culture develops, demonstrates that a national culture is a constructed identity, an insight that opens up the possibility that a national culture may be re-constructed. Habermas and Mason describe features of a political community that may aid in the reconstruction and transformation of a national culture. This discussion leads directly to the consideration, in Part III, of what I term the ‘high culture’ of the EU, that is to say the values of the EU post-national community. The EU high culture includes cultural values abstracted and separated from specific nations as well as cultural values developed within the EU itself and this high culture enables all the instrumental and expressive dimensions of sub-state nationalism to be accommodated.

(A) Liberal Nationalism: Creating a National Group and Justifying its Expression within a Political Community It is important, especially in a place where two opposing nationalisms dominate and conflict, that the nationalisms espoused are of a form that not only protects the groups’ values but also respects the values of others. Yael Tamir has called this kind of civic nationalism ‘liberal nationalism’ and has articulated such a theory, in part inspired by the Israeli-Palestinian conflict and the difficulty in accommodating both a liberal respect for ‘personal autonomy, reflection, and choice’ and nationalist beliefs in ‘belonging, loyalty, and solidarity’ (Tamir, 1995: 6). She states that liberal nationalism enables liberals to acknowledge the importance of belonging and cultural affiliations, and it enables nationalists to: appreciate the value of personal autonomy and individual rights and freedoms, and sustain a commitment for social justice both between and within nations. (Tamir, 1995: 6)

This theory begins to offer a way to reconcile the worst things about being a nationalist with the best things about being a liberal: the exclusive,

The Impact of European Constitutionalism 211 sometimes racist, aspects of ‘violent’ nationalisms may be de-intensified by the universalist ideals and connections we have by virtue of existing. At the same time such a theory takes seriously national cultural claims that have been at the root of much conflict and bloodshed. Within Tamir’s theory of liberal nationalism it is possible to identify five conceptual notions that are valuable in re-conceptualising a theory of nationalism. First, she identifies the notion of a reflective choice at the core of nationalism that allows individuals to choose their identity. Second, she posits that it is possible to value a national culture without devaluing different cultures belonging to other groups. Third, she maintains that a national culture can flourish in political arrangements short of a nation state. Fourth, she argues that if people live a communal life they flourish and develop morally even to the extent of wanting to assist others external to their particular community and, fifth, the related element, that a national culture is a means of encouraging individuals to live a communal life. Each of these aspects of liberal nationalism shall be considered in the following sub-sections since they begin to describe the nature of the kind of political community that can accommodate the instrumental and expressive dimensions of national groups as well as protect minority interests. (1) Tamir’s Reflective Choice A key to understanding Tamir’s theory of liberal nationalism is the notion of individual choice or ‘reflective choice’. Inspired by the notions of individual rights and personal autonomy found in liberal theory, she posits that a liberal nationalist chooses his/her communal affiliations by reflecting on cultural identity and then consciously choosing to join a national cultural group which provides a preferred environment in which to carry out a whole set of other personal choices to do with his/her religion, lifestyle, profession and political affiliations. In making such a choice, and thereby acknowledging that a choice exists as to whether to join the group, the liberal nationalist must therefore respect the choices of others who choose not to join the group or indeed choose to join another group. Some nationalists, Tamir states, might deny there is a choice to become a nationalist, holding that ‘cultural and national affiliations are a matter of fate rather than choice’ but, Tamir responds, the notions of ‘identity renewal’ and ‘assimilation’, familiar to all nationalisms, demonstrate, in the former, that individuals may choose to be what they are, or what their forefathers were, and, in the latter, that individuals may choose to adopt a foreign culture (Tamir, 1995). The ‘choice’ identified by Tamir to adopt a particular national identity is individualistic but when carried out by a group it amounts to choices by individuals to live together as a group and participate in a common culture. They form an ‘imaginary community’ (Anderson, 1983): the group may be

212 Victoria Jennett too big for each person to have direct contact but they all believe in their ‘nation’ so it exists to them. Their ‘culture’ therefore holds them together and their culture is important to them in designing their political institutions, their principles of justice and the content of their social policies. The notion that there is a choice in one’s identity is helpful when considering a European identity. Some commentators posit that a European identity is impossible because it would be a false construct that would not resonate with the distinct peoples of Europe (Maastricht Decision CMLRev, 1994). Tamir’s theory illuminates two observations about the issue of a European identity. First, since for Tamir one’s ‘nationality’ is a choice, one could make a sincere reflective choice to adopt a European identity just like one chooses the other elements of one’s personal and communal identity. It is perfectly valid, as a liberal nationalist, to choose a European identity as well as an Irish/British etc identity. Tamir comments that when an individual belongs to more than one association and therefore has several (Dworkinian) ‘associative obligations’ that conflict, this is resolved by an individual common-sense approach: the individual ‘can only consider their obligations raised by their membership in each group, weigh them fairly, and decide on a course of action’ (Tamir, 1995: 102). Second, Tamir points out that nationality is not to be conflated with citizenship (Tamir, 1995 and Weiler, 1995). Nationality, she says, should not be a criterion for participating in the political sphere: ‘citizenship’ confers political rights to participation or for the allocation of goods and services. So even if a strong European identity is not fostered a European citizenship can exist. The value of placing the liberal notion of individual choice and rights at the core of the liberal nationalist theory is that, as Tamir points out, a nation’s history—its traumas, battles, collective fears, attachment to a territory or to a religion—are not the bedrock of its claim for national rights. This conception of liberal nationalism, so far, has obvious attractions where groups’ claims to self-determination are often predicated on the history of the place and the hurt suffered at the hands of other groups. (2) The Nature of the Right to Self-Determination Tamir emphasises that a group’s claim to have national rights, (ie selfdetermination, meaning a political sphere within which the group’s national culture may be expressed) should be justified on: universal grounds by referring to the value individuals find in the existence of nations, and by assuming that human beings care as much about the national environment in which they implement their life-plans as about the specific content of these plans. (Tamir, 1995: 83)

So a theory of nationalism, for Tamir, includes a universal ‘general right to culture and national self-determination’. Tamir emphasises that the

The Impact of European Constitutionalism 213 political arrangements that reflect the group’s culture might be a nation state but they could equally be other political institutions or arrangements that allocate to a group a public sphere in which to express their culture with other members of their group. This interpretation of the right to selfdetermination, as shall be discussed below, often leads to a criticism that Tamir’s theory is ‘not nationalist enough’ because it is not sensitive enough to nationalists’ often passionate commitment for the dignity conferred by a sovereign state (the third expressive dimension of sub-state nationalism). To justify this general right to culture and national self-determination, Tamir relies on the notion of the ‘contextual individual’ who thrives on living in a community where there exist mutual responsibilities and mutual care (Tamir, 1995: 83–86). Since liberal nationalists share a culture and care about what their national environment looks like, their political arrangements will reflect their idea of what is important in order for a society to flourish. As a result liberal nationalists will want their political arrangements to reflect them: their culture, their religion, their history. Tamir emphasises that while self-determination is often sought in the form of a nation state, this is not the only entity that can satisfy nationalist self-determination demands. Tamir states that her concept of self-determination is based on cultural claims and not on political sovereignty. This means that the ‘culture’ as espoused by a particular nationalism is the reason for seeking political authority. She is not over-concerned with the achievement of political independence: self-determination can be expressed through ‘the establishment of national institutions, the formation of autonomous communities, or the establishment of federal or confederal states’ (Tamir, 1995: 75). On the face of it this seems a sizable compromise for her liberal nationalist to make: the ‘nationalist’ element of ‘liberal nationalism’ is over-diluted within the mix and, indeed, it denies sub-state nationalists the satisfaction of their third expressive aspiration that specifically pursues the symbolic recognition and dignity afforded by sovereignty. However this compromise reflects the real effects of globalisation and the multi-national nature of modern nation states: Were homogenous nation-states possible, liberal nationalism would pose no problems. But most contemporary states are multi-national, and under these circumstances, the demand that a state should reflect one national culture entails harsh implications for members of minority groups. (Tamir, 1995: 10)

Tamir’s theory of liberal nationalism is not necessarily, therefore, to do with articulating a ‘less-exclusive’ identity aspect of nationalism. It is to do with articulating a nationalism that is respectful of others’ national cultures (or ‘identity’), and this respect of others is also what lends it its ‘liberalism’. Liberal nationalism holds that a national culture is the most important culture to the members of a cultural group. This does not mean that their

214 Victoria Jennett national culture is better than any other national culture, just that it is the most important national culture to the members of that particular group. Her theory may lead to an exclusive, partial nationalism expressed through the political arrangements of a self-determined community. This nationalism however, she asserts, can endorse a worthy set of moral values even if it is exclusive and be justified even if it is exclusive. How she justifies a partial, even exclusive, nationalism shall be discussed next. (3) A ‘Morality of Community’ Tamir argues that not only are political arrangements that reflect a particular national culture and give preferences to members of that national group defensible, they are also ethical. Political benefits for individuals deriving from the fact that they are part of the same culture is important, she argues, in order to convince people to act communally. She advances a ‘morality of community’ that is intended alongside liberal morality, to ‘in a puzzling entanglement, shape our thinking on moral issues’ (Tamir, 1995: 95). Tamir’s ‘morality of community’ begins by holding that a communal society is a good thing, because, following Rawls’ theory, a sense of justice is developed by individuals by virtue of them being part of a community; that is, by virtue of existing in a situation that allows people to experience special relationships, love and friendship, and to witness other people acting for their welfare, individuals develop a sense of justice. Second, this communal life can only flourish if its members have a sense of mutual responsibility toward each other, that is, if there are structures and principles that guarantee mutual responsibility and create a ‘connectedness’. She goes on to say that once this communal life is flourishing, there will develop a respect and devotion to morals that: ‘Rather than restrict moral duties to members only, it [the morality of community] argues that personal attachments intensify general moral duties and create new ones’ (Tamir, 1995: 98). Therefore while the ‘morality of community’ will mostly result in the needs of members of the community being attended to first, above the needs of others, this is justifiable because the practice of attending to the needs of the members will educate individuals in moral duty. And this moral duty may extend to the needs of others: When the needs of strangers are significantly more urgent than those of members, our obligation to help them might indeed be greater than our communitarian obligation to prefer fellows. (Tamir, 1995: 99)

In choosing to help members of one’s own group first, above those of another group who might equally need help, Tamir posits, that this favourtism is acceptable because it is not grounded in the idea that ‘what is mine is more valuable than what is yours’. Rather it is grounded in the fact that to a nationalist ‘my’ group is more important to ‘me’. This is not to

The Impact of European Constitutionalism 215 say that ‘my’ group is better than the other’s group, but rather to recognise that, equally, the other’s group is more important to them. This favourtism, she argues, is necessary because it helps to create a communal life (which as explained above is inherently a good thing): Individuals will not participate in a communal life unless they assume that, for their interests and purposes, it represents the best of all viable possibilities. (Tamir, 1995: 101)

In other words before they agree to participate, individuals need to know that they will get something out of participating with other individuals in a group: they need to know that their culture will be prioritised and they, as well as the other members of the group, will be favoured in the political community. This point leads on to a criticism that Tamir’s liberal nationalism, like every other nationalism, ends up being partial and exclusive because in the political unit (nation-state or something else), within which a particular community culture is reflected and expressed, social justice policies will favour the members of the particular group above ‘others’ who also live within the political unit: one could say her theory is ‘too nationalist’. This criticism, which is based around Will Kymlicka’s theory of ‘multicultural citizenship’, is the criticism of Tamir’s theory on which I will predominantly focus. Before I move on to addressing the ‘multi-cultural’ criticism, it is important to set out another common criticism of Tamir’s work and explain why I do not endorse it. Conversely, and not unexpectedly given the passions connected to nationalism, the other main criticism that Tamir’s theory of liberal nationalism attracts is that her concept of nationalism is not nationalist enough (in contrast to my preferred criticism that her theory is, in some aspects, too nationalist). In other words she is ‘too liberal’ and is not sensitive enough to the strong nationalist zeal for ‘symbolic recognition’ within a nation state (this criticism relates precisely to the third expressive dimension of sub-state nationalism described above). Tamir herself has responded to this criticism. As she phrases it, her critics believe that her theory implies the ‘depoliticisation of nationalism’ because by placing the cultural claim at the heart of nationalism she does not sufficiently emphasise the political claim to selfdetermination. Her response is that ‘political power is the means, while the end is cultural…Political action is an important part of nationalism, but is not its essence’ (Tamir, 1995: xiii). This, her critics say, is not convincing because as Beiner (and others) put it: What nationalists want, typically, is not a vaguely defined ‘public space’ for the display of their national identity, but rather, control over a state as the vehicle for the furtherance of national self-expression. No real nationalist would say what

216 Victoria Jennett Tamir does, namely, that the ‘ideal of the nation-state should…be abandoned. (Beiner, 1999)

There are two contentions to this criticism. It is contended, first, that this criticism by Beiner does not take into account the strategic aspect of a nationalist’s demands, a contention that amounts to the following: nationalists are rational beings that might not for political rhetorical reasons say publicly that the ideal of the nation state should be abandoned, but they will nevertheless abandon it if they feel secure that principles that guarantee their interests are embedded in a polity (or several polities within which they participate). The practices and policies of the EU can encourage a sense of security that a national culture is protected. Indeed the transfer of political authority by the EU to regional actors can assist sub-state nationalists in finding the security to abandon ‘exclusive nation state’ ideals. Second, it is also contended that Beiner’s criticism overlooks the way in which nationalists’ ‘shared culture’ is being re-conceptualised by the phenomena of European constitutionalism. This contention forms the core of the analysis of a ‘reconstructed nationalism’ that follows. (4) Liberal Nationalism and Multiculturalism As stated, a problem with liberal nationalism, then, is that a nation founded on liberal nationalism might nonetheless, in expressing its liberal nationalism, exclude other groups’ liberal nationalisms. In other words a criticism might be that the self-determination sought might not be ‘liberal’ enough: it might be too ‘nationalist’. The re-conceptualisation of the bonds of nationalism (the shared values or ‘high culture’) in a less exclusive way or indeed in an inclusive way is the basis of the next enquiry. This enquiry takes two directions. The first direction is that which is described below: an investigation into a reconstruction of liberal nationalism with a view to incorporating other liberal values into the bonds of nationalism; liberal values that are inculcated by the European Union and its objectives (values), structures and policies. The second direction of the enquiry proceeds from the basis that Tamir’s liberal nationalism is ultimately disappointing and pessimistic about the ‘good’ of humans: liberal nationalism laudably affords dignity to nationalism, but it ultimately concludes that individuals, try as they may, just cannot assent to finding commonalities with the ‘other’. This disappointment with nationalism is also considered below in the investigation into how to import common values into nationalism through other civic nationalist structures. To begin with the first line of enquiry, I want to look into the nature of the ideals that inspire people to organise themselves into a political community

The Impact of European Constitutionalism 217 in order to protect those ideals. If those ideals are ‘re-conceptualised’ away from the familiar, mythical, exclusive reasons why people are members of a nation it is possible that we can begin to conceive of a less exclusive or perhaps a more inclusive political accommodation of nationalism. Tamir certainly has begun a great deal of this re-conceptualisation but my enquiry is whether her liberal nationalism is liberal enough. This enquiry begins with a criticism of Tamir’s ‘liberal nationalism’ by Will Kymlicka. Then, in an effort to both meet the criticism put forward by Kymlicka and to deal with the limitations of Kymlicka’s criticism, I will consider Gellner’s theory of nationalism in order to analyse the ideals that may be said to be behind ‘nationalism’ and to begin to re-conceptualise them as less exclusive. (5) Kymlicka’s Criticism of Tamir Kymlicka poses the question: If people can collectively express their religious identity through freedom of association while still maintaining a strict separation of church and state, why shouldn’t we maintain a separation of state and nation? (Kymlicka, 1999)

The point is why is it necessary for a state to express a national culture? He quotes Tamir’s view that political arrangements ‘should reflect the unique character and draw on the history, the culture, the language, and at times the religion of the national group, thereby enabling its members to regard it as their own’ (Tamir, 1995: 74), and points out that this argument: is not about the survival of the culture, but about the desire for political affirmation of self-identity and the desire to have a sense of ownership of government through one’s nation. (Kymlicka, 1999:139)

He believes that the state should equally belong to all those who are governed by it, regardless of their nationality. Kymlicka’s ideas may verge towards a rather ‘thin’ concept of constitutionalism that only expresses banal generalities: common values, inherent in national cultures, expressed through constitutional apparatus are, reputedly, that which is sought by sub-state nationalists. Can constitutional structures avoid expressing exclusive values whilst at the same time satisfying a whole range of nationalities? Is it possible for multiculturalism to be a constitutional ‘culture’ in itself? If multiculturalism is a constitutional value the advantage is that a variety of cultures are exposed to each other, opening up the possibility that those cultures may mutually shape and transform each other. Keeping national cultures within the public domain is healthy since this is a space within which the exclusive elements of particular cultures could be defended, defeated or transformed by engaging in conversation and conflict with

218 Victoria Jennett other cultures. The disadvantage of Kymlicka’s desire to separate the state and nation, that is, extract nationality from the political sphere, is that nationality, like religion, would not get exposed to other ideas about good ways to live one’s life. A so-called problem with the EU is that ‘a polity requires a community with a high degree of cultural, ethnic or historical cohesion, which is not the case of the European Union’ (Maduro, 2000). However this problem may be an advantage in that the EU is a blank canvas; an opportunity for a new kind of polity that allows sets of values to emerge when a particular inter-level relationship is underway, played out against a backdrop of a polity without a dominant national culture but with a common multi-national and supranational culture. Maduro offers an understanding of the kind of polity the EU represents: It is possible to conceive the European Polity as based on a civic understanding of the European demos independent of belongingness to an ethno-cultural identity. What forms the European polity is our voluntary agreement to share certain values and a form of political organisation open to anyone wishing to enter into this social contract. (Maduro, 2000)

However whilst holding on to this attractive idea that the European Polity is based on individuals or ‘peoples’ choosing to join (which coincides with Tamir’s theory of ‘reflective choice’at the centre of liberal nationalism), it is important to flag up the need to re-examine the concept of a civic understanding as, although it may be independent of an ethno-cultural identity, as Kymlicka writes, it may still need to be attached to some form of cultural identity. And second the reasonableness of any assimilation that might be required for ‘anyone wishing to enter into this social contract’ needs to be looked at. Maduro’s view of decoupling the civic understanding of the demos from an ethno-cultural identity hints at an idea initiated by Ernest Gellner that will be explored next: since nation-states are not the ‘natural’ communities that nationalists would have us believe; since originally they were in fact constructed by an elite to protect certain valued ways of political and social administration (a ‘high culture’), why then can not this ‘high culture’ be revealed for the ‘shared values’ it actually represents? Of course, as I shall go on to show, a mere set of administrative values might not be enough to capture the loyalty and commitment of individuals or groups. So then, as Maduro’s view suggests, the European polity is novel because it radicalises the concept of ‘high culture’. It does this in two ways. First, rather than having a ‘high culture’ imposed upon people by an elite, the EU polity represents an opportunity for the peoples of Europe to enter into the polity, as Maduro says, voluntarily. Second, since, as he writes, they enter into the EU by ‘voluntary agreement to share certain values’ (my emphasis), the EU also has the capacity to shape those values in a way attractive to

The Impact of European Constitutionalism 219 sub-state nationalists (and of course other types of nationalists). In other words, in line with Gellner’s theory which is described next this opportunity to re-conceive of the ‘shared values’ (synonymous with Gellner’s ‘high culture’) of Europe allows an investigation into whether ‘less-exclusive’ or ‘more-inclusive’ values in common exist.

(B) Reconstructing the Shared National Culture that Bonds a National Group Can people find common cultural and political cause outside of the national context? In this part I will analyse what it is that bonds individuals in a society and, moreover, whether those bonds can exist and flourish outside of the national (or sub-national) context. This enquiry will begin by analysing the ‘high culture’ bonds that Gellner suggests actually constitute that which has caused people to form and join particular polities. It will be shown that these high cultural bonds are common to many cultures and therefore a source of unity for diverse groups. It is valuable to consider here theories of civic nationalism by Habermas and Mason, which analyse attachments to abstract values and institutions, with a view to describing a conception of nationalism that is both particular and universalistic, that is to say respectful of particular as well as other cultures. Gellner describes a choice or a ‘will’ at the core of nationalism: people have a ‘will to be politically united with all those, and only those, who share their culture’. His theory of nationalism, of course, does not go on to embrace liberalism as does Tamir’s, but it does support the idea that at some point a way of life is developed to such a degree that people choose to have that way of life expressed through a political unit. He writes that once a ‘high culture’ has developed thanks to general social conditions standardising and spreading that culture throughout a population, the situation arises in which ‘well-defined educationally sanctioned and unified cultures’ become the most obvious, most unifying type of unit with which people can identify. At that point he says, ‘The cultures now seem to be the natural repositories of political legitimacy’. So, according to his theory, first a high culture develops, then a choice is made to share that culture and express that culture through a political unit. For Gellner nationalism is constructivist: at some point the culture is embellished and concocted and ‘the fusion of will, culture and polity becomes the norm, and one not easily or frequently defied’ (Gellner, 1983). Gellner’s important insight is that ‘nationalism’ is not a ‘natural’ state of affairs: it is a political principle that emerges after the state (the society in which people exist) is ‘already very much taken for granted’. So the core tenet of nationalism, according to Gellner, becomes the ‘fiction’ that ‘the national state, identified with a national culture and committed to

220 Victoria Jennett its protection, is the natural political unit (Gellner, 1993). In essence he describes nationalism as the will to power, the will to impose a ‘high culture’ (a set of political arrangements) on society and it ‘usually conquers in the name of putative folk culture’ (Gellner, 1983). There are two salient details within Gellner’s thesis for the purposes of my analysis. The first is that at some point the will of men creates the nation, an observation which can be used to corroborate Tamir’s thesis that there is a choice at the centre of nationalism (I must emphasise that Gellner does not imply that this will is linked to liberalism. However the will is a will to implement a high culture and that high culture might have liberal values as shall be discussed below.) The second important detail is that this will develops as a result of a desire to impose a particular way of life and that this way of life is not only, or not really, to do with an ‘emotionally-charged’ particular culture of a putative ‘nation’. So the emotionally-charged culture does not really, or does not only, constitute the ‘solidarity bonds’ that hold people together: there are other, more important, ‘high culture’ reasons for a national group being formed. Even if this ‘high culture’ is not widely attributed as constituting the ‘solidarity bonds’ of a national group, it does nevertheless form a part of the cultural bonds of that group. It will be posited that the ‘high culture’ should be attributed as the real inspiration for individuals to choose to join a group and seek to have that high culture reflected in political arrangements. (1) The Distinction between ‘High Culture’ and ‘Local Culture’ At this stage it is important to explain how I am going to use the terminology offered by Gellner and Tamir for describing the different elements of nationalism. I am going to approximate Gellner’s ‘emotionally-charged’ or ‘local’ culture with Tamir’s concept of the ‘national culture’. This is not meant to diminish the value of Tamir’s concept of the national culture or to suggest that the elements of her national culture are the same as Gellner’s, sometimes dismissive, description of what constitutes an ‘emotionally charged’ or ‘local’ culture. Nor do I wish to suggest that the elements of her national culture are not worthy of expression through political arrangements: indeed it is possible that some of them might form a part of the ‘high culture’ which, I argue, is the real culture that inspires individuals to choose to join a group. Other elements of her concept of ‘national culture’ might also be reflected in other ‘non-sovereign’ political arrangements or other non-political arrangements. The reason I am going to explain carefully this approximation is because, as it has been mentioned already, later it will be posited that the ‘high culture’ can replace the ‘national culture’ or ‘local culture’ as the set of values within a political community that may accommodate the instrumental and

The Impact of European Constitutionalism 221 expressive dimensions of sub-state nationalism, and thus persuade peoples to choose to live a communal life. In this section I will show that such a theory does not overlook the very important elements of Tamir’s ‘national culture’. I will begin the explanation by expanding on Gellner’s distinction between the ‘high culture’ and the ‘emotionally-charged’ or ‘local’ culture. According to Gellner, some local cultures that pre-existed the age of industrialisation might have been absorbed into the ‘high culture’ by the spread of industrialisation because they were efficient or excellent: the new industrialised, modern culture (which forms the core, but not all, of the ‘high culture’) that swept through the land valued some local customs and adopted them. Other local cultures might have been rejected or ignored by the ‘high culture’ because they were not useful or they were just overlooked. This latter type of local culture (the rejected or ignored culture) is often later revived by the elite to convince the population to support the elite’s desire for political power: popular consent or submission is sought in order to impose the ‘high culture’. It is important to emphasise that the rejected or ignored elements of the local culture still might contain some excellent and efficient elements. Tamir, as stated above, in describing her ‘national culture’ (which is synonymous with the ‘local culture’ for the purposes of this analysis) does indeed take care to distinguish the traumas and dramas of a community’s historiography from her concept of what constitutes the ‘national culture’. For her, what constitutes the ‘national culture’ are ‘culture, traditions, religion and language’. Her version of a national culture, then, might still be composed of very good and efficient ways of organising a society. Some of Tamir’s ‘national culture’ which includes strong, excellent ideas about how to organise a community might already form part of Gellner’s ‘high culture’ and be already protected in a set of political arrangements that exist. If they are not already protected, a case could be made that the ‘high culture’ should absorb them and make them common to all groups and individuals within a political unit, or that they should be protected in other types of political or non-political arrangements within a state where it is also possible for them to flourish. As mentioned above in my analysis of the second expressive dimension of sub-state nationalism, nationalists agree to share resources with members of their group in a collective autonomous unit because they feel a solidarity, a loyalty with the other members of the community, and come together as a group (a ‘battery of power’) on account of that loyalty. If that solidarity is based solely on a shared common culture (in the Tamir sense) there is a danger that the nationalism becomes racist and exclusive. Gellner’s insight is that the reasons given for establishing a nation-state might be different from the actual reasons that exist for establishing a nation state, ie, the given reason might be that the state is necessary to protect an already

222 Victoria Jennett existing cultural nation, but the actual reason might be to preserve a high culture which has nothing to do with a ‘nation’ but everything to do with how a society or a state is organised. To illuminate this insight it is useful to compare it with Tamir’s theory. Tamir’s theory also puts forward the insight that the ‘national culture’ (or Gellner’s ‘emotionally-charged culture’) alone is not the justification for national rights. The justification, according to her, is the liberal choice to join a group that shares a culture; such a voluntary group of people then deserve, or are justified in seeking, some form of self-determination. In Tamir’s theory the ‘culture’ pre-exists the self-determined political unit and the culture is justifiably reflected in the nation’s political structures and norms. Gellner’s theory observes that the will to form or join a self-determined political community—not a mere cultural group—is based on a desire to preserve a certain way of organising a society (ie the ‘high culture’). Perhaps the non-elite who willed to join the nation state were particularly moved by the emotionally-charged cultural reasons but the other ‘high culture’ reasons are also a part of their reasons for making that choice. So, in Gellner’s theory, the political unit is a means of gaining authority to impose a way of life that may or may not coincide with a ‘local’ or ‘national’ culture’. The ‘culture’ is invoked or invented to persuade people of the right to a self-determined political unit. Following Tamir’s language of what ‘justifies national rights’, Gellner could be said to give two justifications for a nationalist’s self-determination, one ‘real’ and one ‘invented’. The invented one is that the nation-state is a natural political unit to protect a culture, but the real justification he discerns for why nationalists want to establish a nation-state is their wish to impose their own culture, their own-way-ofdoing-things on a population. This ‘high culture’ is not pre-existing and is not natural but it is the real reason (or the reason behind the reason) why people agree to join a communal life. The value of this insight is that it leaves us space to re-conceptualise what are the ideals of the ‘high culture’ and perhaps to conceive of a less exclusive nationalism. It is of course possible that the ‘high culture’ is just as exclusive as the emotionally-charged culture, but there is also the possibility that the ‘high culture’ is to do with non-exclusive or less-exclusive ideals about how a society is organised. If those ideals (which might include universalist ideals) were presented as reasons why a group of people should express solidarity within a collective autonomous unit, then there is an opportunity for a non-exclusive nationalism to be articulated. This non-exclusive nationalism, at the EU level, might actually be a form of political communitarianism that does not depend on nationalism at all. However in order to accommodate sub-state nationalists it is vital that at the EU level recognition is given to nationalism even if only indirectly: EU regionalism indirectly accommodates sub-state national communities.

The Impact of European Constitutionalism 223 The values that motivate EU regional policy (subsidiarity, redistribution of resources within the EU to poorer regions) are vital in accommodating the instrumental and expressive dimensions of sub-state nationalism. I will mention that, as a guiding principle, the majority of the other elements of Tamir’s national culture that do not ‘make the cut’ of the ‘high culture’ could be expressed through non-sovereign political arrangements if, for instance, they respect principles of democracy. The real issue would be not whether they could be expressed through political arrangements, but in what manner are they expressed. Political arrangements and the law can be used to design a range of ways to influence how a citizen behaves. The law does not merely enforce or impose: there are available a range of hard and soft law options for effecting change in a society; the law can also encourage, promote, persuade or support a citizen to positively act, refrain from acting or decide whether he/she would like to act (ie methods of influencing a citizen’s behaviour can operate neutrally, positively or negatively). For instance when it comes to a particular language, political arrangements are robust enough to cope with expressing several languages. The political arrangements do not have to insist upon a particular language but can offer a choice of languages and be a guardian of all languages within the community. So, in summary, the ‘high culture’ will represent a set of efficient and excellent values that are common to all. Other particular ‘local cultures’ might be protected by other non-sovereign political arrangements or non-political arrangements. (2) Constitutional Patriotism and Republican Patriotism Discourse on civic nationalism chimes with Gellner’s theory of what really constitutes the bonds that bind individuals in a group. Habermas’ theory of ‘constitutional patriotism’ is an exploration into the reasons why citizens might be said to be bound together in a nation-state (Habermas, 1995). Mason’s ‘republican patriotism’ (Mason, 1999) also analyses this phenomenon in an effort to move away from relying on ethnic dimensions as the source of collective identity in a nation-state. Habermas’ ‘constitutional patriotism’ concerns an effort to ‘civilise’ the national frame of reference. As described by Kostakopoulo (Kostakopoulo, 2005), Habermas originally set out to ground the German collective identity in universalistic normative principles but later ‘thickened’ this to ground collective identity in universalistic principles as mediated by the institutions and culture of the particular German political order and ‘Basic Law’. This allowed for a particular German spin to be weaved into universalistic norms. The nation state’s liberal democratic principles are prioritised therefore as the shared political culture that binds together the individuals in the state. The particularism of sub-cultures takes second

224 Victoria Jennett place in the understanding of the nation and political belonging to the state is more important than ethnic and local cultures; although political principles must be interpreted in light of the ethical-political self-understanding of the citizens and the political culture of a country. Kostakopoulo contends that Habermas merely ‘recuperates nationalism under a civic mode’ because the focus still remains the liberal political values of a particular state. Nonetheless positing liberal political values as the ties that bind is a hopeful point of departure for any post-national enquiry into citizenship and identity. In other words if nationalism is firstly reworked or reconstructed, in the way suggested in this thesis, with emphasis on the ‘high culture’ bonds that bind individuals and groups, the self-understandings of sub-state nationalists can sincerely encompass loyalty to values and principles beyond their local and particular culture. But, crucially, the local and the particular culture are given effect since such local values can help situate individuals, that is provide a context from which they embrace the wider universalistic values. Habermas describes universalistic liberal political values as capable of binding citizens if they guarantee social and cultural rights: the ties may be universalistic but they give effect and legitimacy to particular ways of social and cultural life, thereby reinforcing people’s loyalties to the universalistic values. Mason articulates a form of civic nationalism: ‘republican nationalism’ which is not so much concerned with people feeling that they belong together but rather that they belong to the polity: the polity is that which binds people. His theory relies on people participating in the institutions of a polity and developing a commitment and loyalty to those institutions. As long as they feel they belong to the polity it is not necessary that they feel they belong together. Kostakopoulo criticises Mason’s theory on the basis that institutions can be just as exclusive of ethnic minorities and ‘other’ values. Over time ‘belonging to the polity’, just like ‘belonging together’ can ‘thicken’ to express a particular set of exclusive values. Kostakopoulo’s aim is to conceive of an identity framework for citizenship that does not insist upon locating that which binds people within the nation. She is critical of the reliance on cultural commonalities to unite a nation. Nonetheless the efforts by different strains of civic nationalism to focus on the political aspects that bind people whilst incorporating the non-ethnic cultural aspects at least broadens the ‘cultural’ expressive aspect of nationalism, moving them away from merely ethnic considerations. Kostakopoulo’s insights are valuable, however, because they do raise the question of why it is always assumed by thinkers of nationalism that national culture is best expressed in a national political unit. Kostakopoulo questions the very idea that sovereign political units must be nationally framed since the EU provides a novel counter-example. My focus is on reworking nationalism from the inside to reach a position similar to Kostakopoulo’s, in

The Impact of European Constitutionalism 225 which nationalist values are amplified or civilised to such a degree that they are open to accommodation by a variety of different political arrangements. This amplification or civilisation of nationalist values may stretch nationalism into the kind of political communitarianism offered by the EU where nationalism is untied from political authority but, crucially, this civilising of nationalism must stop short of ignoring nationalism altogether: EU political authority must—and does—directly or indirectly respect, recognise and pay attention to sub-state nationalism, localism or particular cultures. In the EU political community sub-state nationalist instrumental and expressive aspirations are directly and indirectly accommodated. (3) The Benefits of Tamir, Gellner, Habermas and Mason Combined Tamir’s understanding of why individuals embrace the communal life throws up the analysis that individuals are essentially insecure: they need a structured environment governed by principles that guarantee their rights in order to reassure them that their interests will be protected just as much as other individuals’ interests. She refers to Barry who makes the insight that people need principles to guarantee their rights as ‘a fall-back position and security in case other constituent elements of social relations ever come apart’ (Barry, 1983). Just as individuals need a guaranteed political structure to reassure them of the value of joining a group, national groups need to be reassured of the value of joining a polity with other national groups. If Tamir’s theory holds true then that which persuades individuals to make the choice to live communally—a ‘common culture’ (the traditions, language, region etc)—must also exist between groups in order for them to choose to live together. Of course Tamir is not concerned with merging national groups into a ‘multi-national political community’ (this is my concern): she would argue that if there are several national groups existing on one territory, the best you can hope for is that each espouses a liberal nationalism that respects the other national groups and that there are political arrangements for each national group in which their different cultures are protected. She would also say that over time, as each group becomes secure that their values are protected, each group might start to consider the interests of other groups, sometimes above their own, in formulating policy for the polity in which they all live. This is one way of dealing with the problems of particularism and nationalism but a long time may need to pass before groups start to consider and consult the interests of others when they are making decisions about their own interests. The value of Gellner’s insights, then, is that the real bonds that create solidarity between individuals and, by extension, groups are revealed: those of his ‘high culture’. If this ‘high culture’, rather than Tamir’s concept of the ‘local culture’, is promoted by the elite groups within particular nationalisms as the reason why particular national groups should

226 Victoria Jennett join a communal life, then individuals within and between the groups will share the same reasons to share the same space harmoniously and equally. In essence the ‘high culture’ should form the heart of nationalism, not the ‘local culture’; a political community’s sovereign political arrangements will reflect the ‘high culture’ and other non-sovereign political arrangements and other non-political arrangements will reflect the local cultures. Particular ‘local cultures’ that are divisive will not be permitted to dominate a polity (for instance religion) and other cultures that may be particular but are not divisive (for instance language) may be reflected in political arrangements. (4) A Shared ‘High Culture’ as the Basis for a Communal Life The ‘high culture’, it will be posited (following the logic of Tamir’s theory): (1) can constitute the culture that bonds individuals in a group or that bonds several groups in a bigger group; (2) could and should be expressed through a set of political arrangements that can be national but can also be outside the nation-state, and (3) will represent a set of values that are not nationally based, but rather are wider values which can form a part of nationalist’s self-understandings. Since Tamir makes a convincing argument that political arrangements need to reflect a culture in order to gain people’s loyalty and participation, then the political arrangements that govern many national cultures can reflect the ‘high culture’ that, Gellner posits, constitutes the real reasons why people bond together in a political community. (5) Criticisms of A Shared ‘High Culture’ as the Basis for a Communal Life There are three potential problems with this proposal. One is that the ‘high culture’ might become too ‘thin’, too general and not inspire anyone to join a communal life (this problem encompasses criticisms that are directed towards theories of cosmospolitanism and universalism). The second is that the high culture might try to become too inclusive and therefore it ends up inefficient as too many cultural elements must be considered before anything gets done. The third problem is that, as Tierney has described, the high culture might not actually represent different cultural groups because it, as the dominant culture, itself develops a specific set of cultural or societal practices that comes to overshadow and suppress local cultures. There are two ways of addressing the problems described above. One way is to address the problem of trying to decide what should be included in the ‘high culture’ that inspires individuals to live a communal life within a political community. I will not pretend to offer a definitive solution but rather I will examine whether there exists a set of cultural norms, traditions and values that are common to each national culture and to all national

The Impact of European Constitutionalism 227 cultures within the post-national EU political community (there are other levels of political community that hold out promise for accommodating instrumental and expressive nationalist aspirations, but the EU is the primary focus of this enquiry). Although Gellner’s theory of a ‘high culture’ is my point of departure, his description of what constitutes a ‘high culture’, ie, the organisational structures of a society inspired by modernity and the forces of industrialised mass-consumption, need not be the only constitutive elements. In the next section I shall begin to explore what constitutes a ‘high culture’, in order to assess if it is possible to move away from particular cultures as being the only bonds that will convince people to live a communal life. I am also cognisant of the danger of promoting a circular argument of rejecting nationalism and particularism, only to embrace liberalism and universalism which are exactly the political and constitutional theories that have dissatisfied nationalists in the first place. The second way of addressing the problem is to investigate the many structural ways of reassuring national groups with particular interests that those interests will not be suppressed or marginalised, but I will not attempt to do this in detail here. III. THE (RE)CONFIGURATION OF NATIONALIST ASPIRATIONS WITHIN THE EU POLITICAL COMMUNITY

The following reflections are mostly informed by the EU polity within which sub-state nationalists participate. This reflection on the values that might be said to underpin nationalisms is undertaken with the knowledge that, as Gellner has shown, ‘cultural values’ do not really underpin nationalism. Nevertheless nationalists have been conditioned, by coercion, deception or fate, according to one’s point of view, to represent their nation within their political arrangements. This enquiry is undertaken, therefore in light of the observation that what political actors and people actually believe in must be taken seriously (Burke, 1999): if they believe in the natural state of nationalism then that is what must be addressed in figuring out how to accommodate their aspirations. At the same time claims made for nationality must be interrogated: trust and honesty are essential elements of a democracy; claims made by political actors, especially ideological claims to do with nationalism that excite passion and violence, must be open to scrutiny and must be challenged. (A) Universal Values and Commitment to Institutions that Espouse those Values The bonds described by Habermas and Mason form part of the content of the ‘high culture’. That is to say, in line with Habermas’ theory, abstract universal values to which democrats aspire must form part of nationalist

228 Victoria Jennett aspirations. Although universal values of democracy, liberty, human and civil rights and the rule of law are shaped within many forms of political community, the EU and the Member States of the EU articulate them in a particular way. EU, national and sub-national political structures mediate these universal values and at the sub-national level local institutions can ensure that particular cultural values are articulated in line with universal values. A commitment to efficient, fair and inclusive institutions, as described by Mason, will also form part of the high culture.

(B) EU Values As noted the EU articulates a particular conception of democracy, liberty, human and civil rights and the rule of law. In so doing it has developed values special to the EU political community that make the EU unique in constitutional design and capable of accommodating the instrumental and expressive dimensions of national cultures. These special EU values include the principle of constitutional tolerance; the desire for a lasting peace between the peoples of Europe and prosperity for all, and market values that foster the so called competing visions of the European social model as ‘social’ or ‘free-market’ based. As will be described some of these values may be too thin, some may be too thick, but together they make up a plausible ‘high culture’ that may bond the many peoples of Europe in the EU post-national political community. (1) Constitutional Tolerance Weiler has identified the ‘Principle of Constitutional Tolerance’ (Weiler, 2002) that lies at the heart of European political organisation. According to traditional nation state based constitutional doctrine, a political community is constituted by a people—or a demos—that accepts the authority of the polity because the norms of that polity reflect and are validated by the people. In contrast, within the EU political community there are many distinct peoples—many demoi—and, to date, it is arguable that they have not come together in a constitutive moment. Nevertheless the many peoples of Europe agree to be bound by the authority of the EU even though that authority is located in a community composed of many distinct political communities, and even though the norms of the EU political community are the ‘aggregate expression of other wills, other political identities, other political communities’. This, Weiler states is a: remarkable instance of civic tolerance to accept to be bound by precepts articulated, not by ‘my people’, but by a community composed of distinct political communities: a people, if you wish, of others. (Weiler, 2002: 568)

The Impact of European Constitutionalism 229 (2) Peace and Prosperity The desire for peace between the nation-states of Europe after World War II motivated the creation of the three original European communities established by the European Coal and Steel Community Treaty 1951 (ECSC), the Economic Community Treaty 1957 (EEC) and the Atomic Energy Community Treaty 1957 (Euratom). The establishment of political communities to manage particular economic and political affairs as a means of achieving a lasting peace has symbolic value, for it proclaims that peace is attainable if the peoples of Europe are politically one. Linked to peace is the value of prosperity for all the peoples of Europe: part of the purpose of the political community is to ensure a peaceful life for all, which can be brought about if it helps satisfy all peoples’ needs and desires. So political programmes are developed by the EU that ensure a fair distribution of resources and an equal improvement of standards of life thus helping to maintain peace and foster prosperity in the union. Peace is an expressive cultural value and prosperity is the instrumental way of accommodating that value. These two values are essential in guiding the policy direction and laws of the EU and their articulation is the inspiration for national groups to choose to join the EU political community.

(3) Market Values There is an argument that the EU polity is not capable of providing a convincing ‘high culture’ that will garner commitment and loyalty from the peoples of Europe. This thesis holds that if the EU is going to resonate with the peoples of Europe it will not come about by giving the EU the ‘pathos and patina’ of nation state constitutionalism, and that all the EU can hope to provide are minimalist ‘market based’ values (Haltern, 2003). Haltern suggests that the ‘market citizen’ should be taken seriously and that EU constitutional actors should desist from ‘forcing upon the consumer stories of shared values and historically situated commonality’. Rather, he posits, the EU will have to search elsewhere for its constitutional legitimacy even if that involves a ‘shallower’ sense of constitutionalism. There is great debate within Europe about the appropriate balance between social protection and competitiveness and the ability to sustain substantial social spending in an increasingly globalised world. Specifically European notions of the role of social rights in economic success are developed by the articulation of the ‘four freedoms’ of the European market. However relying on these kinds of market values alone as the bonds that may bind groups within a community may result, on the one hand, a too thin concept of the bonds that bind since they ignore the wider principles bound up with human rights, peace and prosperity, and, conversely, on the

230 Victoria Jennett other hand, a too thick conception could be the result since the economicbased ‘market citizen’ may be the worst type of exclusive basis on which to build a community.

IV. CONCLUSION

This chapter has attempted to set out the sub-state national conceptual challenge to the EU; that is, to attempt to answer the question ‘Can the expressive and instrumental dimensions of sub-state nationalism be accommodated within non-sovereign political communities, especially the post-national political community of the EU?’ Conceptually the answer is ‘Yes’. It has been shown that sub-state nationalist aspirations are not intrinsically tied to the nation as such and that they can always in principle be accommodated elsewhere. It has been demonstrated that the values common to a particular national group may be reconstructed and influenced by the political communities within which sub-state nationalists participate. In particular, the EU political community can accommodate the aspirations of sub-state nationalists. The values or the ‘high culture’ at the EU level are not tied to a particular national group and therefore do not pose a threat to sub-state nationalist values in the way that the values of a nation-state political community might. Indeed the values or high culture at the EU level complement the values of national groups: European ways of law and constitutionalism represent a new way to protect, reconstruct and mediate the differences between peoples.

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8 Is there the Spirit of European Laws? Critical Remarks on EU Constitution-making, Enlargement and Political Culture ˇ ˇ Í PR ˇ IBÁN JIR

T

he idea of building a polity has always been present in the European integration process. At the same time, it has become increasingly challenged by a simple question of whether there are any limits of this process, and contested by different criticisms and sceptical views. Despite many conflicting views, adherents and critics of political integration both agree that it depends on the existence of European identity and its political self-reflection in national societies and the Union itself. For instance, later in his life Jean Monnet suggested that, instead of integrating the national economies, the process of European unification should have started by integrating European culture. Although the early basis of the European Union was predominantly economic and international security driven, the identity issue has always been present both as a project and a legitimation of European integration. Prosperity and peace in Europe have become inseparable from increasingly cultural and civilisational reflections on greater European unification that involves the processes of both integration and enlargement. A brief examination of history, literature, the arts, philosophy and social sciences in different European countries clearly shows that the cultural concept of European identity is alive and passionately discussed among intellectual élites. For instance, the late Polish poet and Nobel Prize winner, Czeslaw Milosz, argued that European identity derives from a sense of geographical, political and cultural belonging (Milosz 1983). For Norman Davies, Europe and European post-1945 unification also contain an important historical dimension—‘Eurohistory’—which involves both the sense of a shared past and a consensus on the positive historical meaning of the political horizons of the Union. Due to this historical dimension, Europe is

234 Jirˇí Prˇibánˇ not only ‘a mosaic of cultures’ but ‘an organic whole’ (Davies, 1997: 43) with a sense of common identity justifying its political unification project. There are many other examples of cultural and historical reflections on European identity. The symbolic communication of human sciences (Geisteswissenschaften), literature and the arts introduces new expressions and evaluations of Europe on a daily basis and makes us feel more or less European. These cultural reflections contribute to the self-identification of the inhabitants of the European continent as Europeans but this collective identity does not need to have any political meaning. It is ambivalent when it comes to the process of political integration and may even cause conflicts over which political process and vision is more ‘European’. It is therefore important to examine which cultural reflections and symbolisations have been adopted and pursued by the European Union. In this chapter, I start by analysing recent calls for searching and promoting the spiritual foundations of European integration and enlargement. I continue by putting these calls into a broader historical and theoretical context and making a direct link between the concept of the spirit of the laws and political identity. In the following part, I analyse the conflict between political identity of demos and ethnos and its reflections in the EU’s civil and democratic identity-building. The Union’s strategy of taming ethnos was particularly successful during the EU accession talks in the 1990s and significantly affected the enlargement process of 2004. I conclude by highlighting the absence of European demos as the mythical political Subject and the constituent democratic power. Instead, European demos is a reflection of civil democratic culture existing at the level of the Union’s member states and extending to the EU level. European constitutional patriotism, therefore, cannot support a state-like, popular sovereignty based legal and political integration and democratic self-reflection. Nevertheless, it supports the notion of European demos as a hybrid mixture of political identification with a culture of civil liberties and democratic values and persistence of national and regional communal identities.

I. EUROPEAN LEGALITY, ITS CRITICISMS AND SPIRIT

European democratic self-reflections and identity-building show that European political institutions cannot evade tensions between the constituent and constitutive power which are typical of any modern democratic politics. Any further political integration makes the question of who can legitimise this process more urgent. The nation state democratic legitimation dilemma grows together with the further integration and constitutionalisation of the European Union. EU integration is thus ever more dependent on a common European identity and symbolic universe. The EU political project increasingly seeks to internalise cultural reflections on European identity-building.

Is there the Spirit of European Laws? 235 Moral and cultural evaluations of democracy, individual freedom, and selforganisation in civil society operate as stabilisers of political and legal decision-making processes. According to the preamble of the Constitutional Treaty’s draft approved by the EU summit in 2004 and subsequently rejected by national referenda in some Member States, the European Union would emerge as a political organisation bearing special responsibility for humankind and the whole planet. The draft’s preamble read: [C]onvinced that, while remaining proud of their own national identities and history, the peoples of Europe are determined to transcend their ancient divisions and, united ever more closely, to forge a common destiny. Convinced that, thus ‘United in diversity’, Europe offers them the best chance of pursuing, with due regard for the rights of each individual and in awareness of their responsibilities towards future generations and the Earth, the great venture which makes of it a special area of human hope ... (Treaty establishing a Constitution for Europe 2004: 1)

Although strange from the perspective of instrumental legal rationality, the preamble symbolically invoked the Enlightenment ideal of reasonable and responsible human beings who, after experiencing the modern horrors of political divisions and wars, can inform the rest of the world about the nature of humanity, good life and politics. According to the document, ‘Europeans’ hoped to grow out of national conflicts and politically transcend existing divisions and thus become ‘united in diversity’. The symbolic rationality of the Constitutional Treaty’s preamble drew on substantive rational legitimacy and expresses the moral authority of a political collectivity (Durkheim, 1953: 73). The morality of a constitution means that it seeks to preserve the integrity, identity and solidarity of a polity and presents this preservation as itself a value (Parsons, 1951: 97). In this sense, the constitutionalisation of European identity expected that the Union’s legality would be transformed into the symbolic communication used by European citizenry in the process of moral and political self-identification. However, the EU’s constitution-making has not inspired the desired awakening of the European public sphere and civic solidarity between the different nations of the Union which are the necessary preconditions of any identity as a European demos—the constituent democratic power. The post-Maastricht political integration and more recent constitutionmaking did not lessen the paradoxes of European politics and the transformation of the Union into a polity-based, profoundly democratised political structure. While useful in the early stages of European unification, the legalist project of ever-closer European integration could not further evolve due to the lack of political communication and its inability to reflect on political problems disguised as technical legal issues in the agenda of European constitution-making. In the 1990s, Jacques Santer, then Chairman of the

236 Jirˇí Prˇibánˇ European Commission, illustrated this state of growing tensions by comparing Europe to the body without a soul. No wonder that the incomprehensible language of European legality has been increasingly criticised as potentially bringing the whole European project to a fatal end (Bauman, 2004: 24). Responding to this growing crisis of post-Maastricht Europe of the 1990s, Václav Havel, then President of the Czech Republic, proposed ‘A Charter of European Identity’ in his speech to the European Parliament on 8 March 1994. According to this proposal, Europe was supposed to be identified as a community of values such as tolerance, humanity and fraternity which historically facilitated the establishment of democracy, freedom and political responsibility. The Charter: would clearly define the ideas on which it [The EU] is founded, its meaning and the values it intends to embody. Clearly, the basis of such a charter could be nothing other than a definitive moral code for European citizens. All those hundreds of pages of agreements on which the European Union is founded would thus be brought under the umbrella of a single, crystal-clear and universally understandable political document (Havel, 1994: 3)

In the same address, Havel spoke about the need to reconcile reason (speaking the machine language of EU economic and legal regulation) and heart (speaking the emotional language of ethical bonds and attachments). In his comment on the Maastricht Treaty and other political and legal documents of the EU, he said: I felt I was looking into the inner workings of an absolutely perfect and immensely ingenious modern machine. To study such a machine must be a great joy to an admirer of technical inventions, but for me, whose interest in the world is not satisfied by admiration for well-oiled machines, something was seriously missing, something that could be called, in a rather simplified way, a spiritual or moral or emotional dimension. The treaty addressed my reason, but not my heart. Naturally, I am not claiming that an affirmation of the European Union can be found in a reading of its documents and norms alone. They are only a formal framework to define the living realities that are its primary concern. And the positive aspects of those realities far outweigh whatever dry official texts can offer. Still, I cannot help feeling that my sensation of being confronted with nothing more than a perfect machine is somehow significant; that this feeling indicates something or challenges us in some way. (Havel, 1994: 2–3)

This view takes European integration as an ambivalent historical development which has to be profoundly supported by ethics. So far, the Union’s progressive integration has been a formal process of legalisation and regulatory politics of numerous documents and norms. The machine of European institutions and regulations is expected to operate in the most efficient mode but it can hardly inspire the political awakening of the European

Is there the Spirit of European Laws? 237 demos. The structure is too cold for any emotions of belonging, abstract solidarity and togetherness. Something has to be urgently done so that people do not: perceive the European Union as a monstrous superstate in which the autonomy of all the various nations, states, ethnic groups, cultures, and regions of Europe would gradually be dissolved

but appreciate it: as the systematic creation of a space that allows the autonomous components of Europe to develop freely and in their own way in an environment of lasting security and mutually beneficial cooperation based on principles of democracy, respect for human rights, civil society, and an open market economy. (Havel 1994: 1)

Unlike modern nationalism based on organic solidarity and ethnic bonds, European identity-building must obviously use different fuel to warm the hearts of peoples. In the absence of a European political people, the political identity behind European constitution-making can be constructed only against the background of a general European spirit. European patriots are expected to be defenders of the European spirit of universal values, cosmopolitan ethics and politics. The evolution of a spirit of the European Union signifies a return of ethics and ethical politics which, according to adherents of European integration, can revitalise a sense of Europe and the search for a common European identity. The Maastricht Treaty and all subsequent European treaties, including the Constitutional Treaty drafted by the Convention, are naturally expressions of the European spirit but they obscure it by ‘systemic, technical, administrative, economic, monetary and other measures’ (Havel, 1994: 3). A simple declaratory act or charter therefore should be an answer to this technical obscurity and move Europeans to identify with their spirit. Havel refers to this ramification of European ethos and values as the task of formulating the charisma of the European Union (1994: 3). According to him, there is no identity without willingness to act responsibly and readiness to sacrifice, politically and individually. European identity therefore demands charismatic bonds even more than constitutional acts and political resolutions, because these are the bonds which will make us act responsibly and sacrifice our egotistic goals for the interest of Europe as a commonly shared polity. According to this view, the charisma of European self-identification and the techniques of constitution-making and legal regulation can be reconciled in an official declaration of a shared European ethos. These calls for a general European spirit attempt to overcome the ambivalence of European integration by defining the European origins and moral foundations of the

238 Jirˇí Prˇibánˇ grand technical project of European integration. A declaration of European ethos and values would have the force of a charismatic document invoking the popular faith of Europeans and creating mutual bonds and solidarity. However, ethical calls for the reconciliation of cold European law and a hot European ethos can scarcely lead to the desired synthesis of European identity and usually initiate rather lukewarm responses among peoples of Europe.1 They incorporate new ambivalences permeating the process of European integration. There can be only European answers to the question of Europeanisation by constitution-making. However, the absence of a European people, political charisma and public sphere forces adherents of further integration to speak, rather, about the European spirit that could be used in a Montesquieu-like manner to justify the emerging architecture of European constitutional law. Law is criticised in the name of the spirit of civil democratic ethos but this creation of an ethical spirit of civility needs yet to be politically negotiated, declared by the general European will, and implemented by the European legal system. Attempts to invest European legal integration with a European spirit is based on a typically moral view of Europe as a community of values and a place with the necessary minimum level of cultural integration. Lessons from European history inform us about good and bad European traditions and intellectual legacies.

II. THE SPIRIT OF THE LAWS AND POLITICAL IDENTITY

Calls for a cosmopolitan ethos are deeply entrenched in modern European humanism that critically reflects on the crisis of European culture and/or humanity and pursues the goal of saving it through its very spirit of universal humanity and ethics. Every political and social crisis is considered a cultural crisis which can only be successfully resolved by the further Europeanisation of Europe and by injecting the universal spirit into the specific and technical problems of modern European societies (Husserl, 1970: 275). The universal/particular distinction, which is particular to modern society, is reformulated as the cosmopolitan/national political and moral distinction at the European level. A spiritual sense of the cultural superiority of the European cosmopolitan legacy envisions a gradual cultural and political Europeanisation of national societies. The identity of Europe and

1 Ethical criticisms of the drawbacks and flaws of the Union’s regulatory and integration politics and constitution-making highlight an important legal philosophical and social theoretical difference between the origins and function of the legal system. Like any other legal system, European law can easily operate self-referentially but it cannot constitute itself. Law cannot control its own constitution and therefore has to contain its constituent power that, by definition, exceeds the legal system and can be comprehended only in the context of politics and identity symbolism.

Is there the Spirit of European Laws? 239 the European Union is expected to transgress the instrumental rationality of legality and the common market economy. Analysing the problem of the spirit of the European laws and constitutionmaking from a broader perspective, it becomes obvious that the duality of spirit and letter is an archetype of philosophical, legal and social theoretical knowledge. The image of the force of written language taking over oral traditions, making them durable and published in texts, plays an important role in modern culture’s historical and transcendental self-reflection, as if the birth of thinking were marked by the degradation of orally transmitted and shared wisdom, the power of the letter consigning the origins of human knowledge to oblivion. According to this image, the role of spirituality is to oppose the overwhelming force of textuality and its formalistic reduction of thinking. The authentic spirit has to reassert itself against its textual form and thus be ‘redeemed through the very gesture of overcoming/renouncing its particular historical shape’ (Žižek, 2001: 154). The authority of a text depends on its spirit. However, the spirit is permanently threatened to be obliterated by its textual expression. In this intellectual tradition, the spirit eventually has to prevail over the formalistic universe of the letter (Welsch, 1996: 60). It reconciles contradictions and unifies all moments in one supra-temporal totality. The unifying power of the spirit determines the true source of the letter of the laws and thus guarantees their authority. The concept of the spirit of the laws has precisely this power to symbolise the transcendental origins and unity of the systems of positive law and politics. Although the concept is more typical of political morality and the metaphysics of social theory, it is also common in recent jurisprudence and analytical theory. In the ontological analysis of positive law, which looks for common ground and general principles behind existing legal systems, the spirit of a particular system of positive law is what makes the system a coherent, logical and unified part of social reality (Pound, 1963; for recent jurisprudential uses of the concept of the spirit of the laws and legal system, see, for instance, Fraser, 1990, Weiss, 1998 and Grossman, 2000). Because of its status as the origin of the legal system, the spirit of the laws is perceived as a set of ultimate normative sources of positive laws. The spirit of the laws is taken as a symbol of the moral unity and collective identity of society which refers to the moral need for a reservoir of ideal patterns for positive law (von Gierke, 1958). It operates as both an internal and external guardian of the laws’ ideality and unity which makes it possible to morally evaluate the legal system in general. The concept shows that the symbolic rationality of law reflects the first function of culture stretching to the domain of morality: the search for unity and general meaning in all human artefacts. The spirit of the laws is a specific speculative and synthesising concept stretching beyond the temporal horizon of a particular society. It shows that there is a genuinely symbolic mode of communication about the legal system which refers to

240 Jirˇí Prˇibánˇ the transcendental ethics and its striving for perfection in individual life and society. The symbolic rationality of law specifies what is good and bad and makes legality an expression of the collective identity of a polity. The spirit of the laws becomes a symbol of the timeless present of transcendental moral ideals. The collective identity of political society therefore can be constituted ‘out of time’ and against the temporal walls of the past and future. It can recall the spirit of the laws as its ‘true’ ideal origin and ultimate source of validity, incorporated into the system of positive laws. The formation and identity of social groups, such as ethnic and political nations, is based on collective imagination, an emotional quest for belonging, and the active pursuit of we-images and we-feelings (Anderson, 1983; Bendix, 1969; Scheff, 1994). Nations are collectively imagined as social entities and their members have to feel passionate about belonging to them. National identities are not essences and do not have primordial origin. They are constructed, have to start somewhere, and are subject to change by human action and manipulation. The formation of this collective identity is radicalised in modern democratic states built on the notion of one nation and its general political will. Jean Jacques Rousseau’s dilemma of how to make the people speak unanimously as a political nation and establish political procedures for the best possible representation of the people becomes a question of identity: who is the political Subject of the people imagined against the background of social heterogeneity, political plurality, and reality of multitude? What are the consequences of the view that being part of a political minority means misunderstanding the meaning of the general will of the people? (Rousseau, 1997: 124). The absence of a European people does not mean that European integration and enlargement would be spared of this dilemma. Frequent remarks on European identity and spirit show that the EU has to address central problems of modern democratic politics. European constitution-making was expected to have a strong symbolic effect on political society and inspire a special form of political identification which stretches beyond the internal communication of law and politics and constitutes a specific system of attachment and solidarity. Apart from obedience to the EU laws, European citizens were expected to emerge as a we-entity—a polity sharing the common system of political virtues and bonds usually and imprecisely described as civil culture or political culture which stretches beyond the framework of the legal and political systems (Almond and Verba, 1963). The concept of democratic political culture invoked by European constitution-making signifies the indirect impact of politics on the system of culture and self-identification of individuals as citizens. Political culture arises from the laws and politics which makes citizens share a common political identity, mutual responsibility, and the duty of civil participation (Waldron, 2000: 155). The general spirit of the laws is determined by the virtues of civility and democratic political culture. This culture depends on political

Is there the Spirit of European Laws? 241 trust and therefore invokes constitutional patriotism as a way for citizens to identify with their democratic polity.

III. WHAT KIND OF SPIRIT OF EUROPEAN LAWS?: CONFLICT BETWEEN THE IDENTITY OF DEMOS AND ETHNOS

Political identities are complex power relations constructed by those who control the collectivity and further strengthen their position by codifying the binding version of the collectivity’s identity (Bayart, 1996). The typically modern constitutional identity distinction of demos-ethnos is the most illuminating example of this political manipulation of identity. The civil/ethnic distinction of collective identity has a profound formative effect on national self-reflection and the political integration and disintegration of modern nations. The modern history of nationalism reveals the political risks of the legal and constitutional codification of pre-political ethnically-grounded identities of emerging democratic societies. The process of European integration is then a complex response to these risks that involves the politics of neutralisation of existing nationalisms in Europe and their control. Despite the political risks, it is obviously impossible to eliminate the pre-political context of collective identity entirely from legislation or constitution-making both at the nation state and the supra-national European levels. It is therefore important to examine how pre-political ethnic identities are manipulated during the processes of European and national constitution-making. As Jürgen Habermas remarks, the tension between pre-political cultural bonds and civil loyalty to the democratic state: can be resolved on the condition that the constitutional principles of human rights and democracy give priority to a cosmopolitan understanding of the nation as a nation of citizens over an ethnocentric interpretation of the nation as a prepolitical entity. (Habermas, 1996: 131)

According to this view, the civil bonds facilitated by the liberal democratic rule of law are necessary to sustain a democratic polity and therefore have to be nurtured as protection against various forms of ethnic and cultural exclusion and chauvinism. This distinction of democratic and ethnic aspects of constitutionmaking and national sovereignty and priority of demos is extended to the domain of European integration. Europe is perceived as a civil alternative to the ethnically burdened European nation states. According to this argument, the EU laws need their specific spirit which could operate as the principle of any form of the European government. The spirit of the European laws refers to the transcendental normative principle of political institutionalisation.

242 Jirˇí Prˇibánˇ Drawing on Montesquieu’s concept of the spirit of the republican laws and its relevance for European laws and constitution-making, Montesquieu considers the republican government unique because, unlike monarchy or despotic regimes, it cannot rely only on political violence and the mere force of the laws. It demands additional virtue to guide citizens to obey the laws voluntarily. If this virtue is missing: each citizen is like a slave who has escaped from his master’s house. What was a maxim is now called severity; what was a rule is now called constraint; what was vigilance is now called fear. (Montesquieu, 1989: 23)

According to Montesquieu’s interpretation, the republican form of government is both more fragile and stronger than other forms of government, because of the bond of mutual trust between those who govern and those who are being governed and voluntarily subject to the political power. Respect for the laws and the polity is necessary for their continued existence which means that the spirit of the laws of republican government depends on the behaviour and normative judgements of its citizens. Respect for the laws is not a matter of rational judgement; it depends on a political sentiment which is common to all and, in democratic regimes, takes the form of respect and love of equality (Montesquieu, 1989: 42–8). Citizens, as social agents, must vigorously defend and respect equality as a structural condition of democratic government so that its laws can be enforceable (Shklar, 1987). Montesquieu can thus be regarded the first modern theorist of the rule of law as a system which, apart from the institutional separation of powers and the distinction between private and public spheres, depends on the virtues of public accountability and trust between the governed citizens and those who are to govern them by the power of the laws (Loughlin, 1992: 150). Advocates of the European spirit of the laws argue that the European integration, constitution-making, and enlargement processes require the constitution of the European public domain and civil political culture overarching ethnic divisions and tensions between different European nations. In the Montesquieu-like spirit of European republicanism, they seek to contain and marginalise the other European spirit of the laws—the romantic ideology of the spirit of the nation (Volksgeist). The Union’s constitution-making, therefore, incorporates the cultural struggle against political romanticism of modern European nationalisms. As Ernest Gellner remarked in his analysis of romanticism and the basis of nationalism: [T]he new nationalisms enter into violent competition with each other, and the new standard and rallying cry is, above all, folk culture. This is the deep paradox of nationalism: it is a phenomenon of Gesellschaft, but it is obliged to use and invoke the imagery of Gemeinschaft. The moral sovereignty of ethnic culture is

Is there the Spirit of European Laws? 243 nationalism’s central principle. It was the nationalists who really rammed home, persistently and to great effect, the vision of the closed community, final and sovereign. (Gellner, 1998: 29)

The romantic spirit was first persuasively presented by Herder in his Yet Another Philosophy of History Concerning the Development of Mankind (1969). The positive laws were considered just another expression of the life and history of different nations and their spirits. The historical nature of the spirit means that it is expressed in folk tales, language and the daily experiences of peoples. According to Herder, modernity threatens to destroy the specific spirits of different nations and it therefore is necessary to preserve these national distinctions and protect them against modern social pressures and the tendency towards uniformity in social life. The first job of philosophy is to focus on the people, because it ‘is supposed to belong to the people’ (Herder, 2002: 29). Applying the ‘deeply mystical idea’ (Cotterrell, 1992: 21) of Volksgeist to the legal and constitutional domain FK von Savigny argued that all legal codifications first of all have to reflect and recognise the genuine spirit, convictions, beliefs and common consciousness of the nation (Volksbewusstsein) (Savigny, 1975: 27–8). The codified law should express the nation’s distinctive ethos which could be traced back in its history, mythology, religion, custom or folk tales. In comparison with the Enlightenment’s legal rationalism, this was an entirely new scholarly enterprise according to which customs and popular faiths are the real powers behind the positive laws. The lawgiver’s will ought to follow the spirit of the nation, expressing itself through the national culture. Law derives from the nation’s specific character in the same manner as its language, mores and folk tales. Legislation has to respect legal customs and traditions (Gewohnheitsrecht). According to this view, one would expect the legislator to truly represent and reflect on the spirit of the nation and appropriate legislative activities to this ultimate origin of the laws. The content of existing law was to respect the characteristics and traditions of a particular community of people. Law, like language and other cultural systems, was considered to have grown organically through the history of a particular people, perceived as an ethnos—a community of shared language, traditions, customs, religion, territory, and race or ethnicity. Romantics like Savigny were convinced that law is the totality of life seen from a specific viewpoint (Timasheff, 1974: 343). According to the romantic ethos, the spirit of the ethnic nation must be verbally expressed in positive laws. The particular spirit of the ethnos is the spontaneous and quiet power operating behind the positive law in the course of the nation’s history. The romantic spiritualisation of the nation ends up in the modern nationalism that politically sanctifies and identifies with a culture (Gellner, 1987: 10). Modern ethno-nationalism was born out of the romantic passion for

244 Jirˇí Prˇibánˇ the spirit of the nation—Volksgeist. The romantic study of collective life forms concluded that human beings as individuals were but creations of their nations, national cultures, and histories. Subverting Montesquieu’s demand of respect and love of a polity by its citizens, adherents of the Volksgeist philosophy eventually demanded that one should ‘love thy nation as thyself’! Modern European states were created as institutions of both liberal democratic hopes and exclusive political identity for an ethnically integrated community (Tilly, 1975). Romantic nationalism resulting in the creation of modern nations often initiated the transformation of the early modern states into democratic and republican regimes. The nationalist discourse therefore provided a very effective symbolic universe which facilitated a more abstract form of the social integration of populations in modern political societies (Schulze, 1994). The nation as an ethnic community with a common language, tradition and ancestry represents collective identity even for modern European states are premised on principles of democracy and liberal republicanism. This duality of civil and ethnic collective identity and the institutional framework of modern politics ‘leads to a double coding of citizenship, with the result that the legal status defined in terms of civil rights also implies membership in a culturally defined community’ (Habermas, 1999: 113). In this respect, Habermas further summarises that ‘[T]he tension between the universalism of an egalitarian legal community and the particularism of a community united by historical destiny is built into the very concept of the nation(al) state’ (1999: 115). The whole continent of Europe has historically suffered the terrible consequences of ethnically based popular sovereignty throughout its modern history. The idea of ethnic nationalism was naturally stronger in the central, eastern and southern ethnic European states such as Germany, Italy and Hungary than in the territorial states of northern and western Europe. However, racially and ethnically biased policies and discrimination were common even amongst states such as France and the United Kingdom. The shared historical truths of the EU member states tell a story of the political trauma of nationalism, racism, and anti-Semitism.

IV. THE EUROPEAN STRUGGLE AGAINST THE POLITICAL ROMANTICISM OF ETHNOS AND THE EU ENLARGEMENT OF 2004

The process of European integration has been a project of building a supranational polity which would need to emerge in order to minimise particular nationalisms and maximise the integrative power of a political culture of civil rights and parliamentary democracy. The supranational ideal of the Union’s citizenry is to prevent nationalist abuses of state power in the future and defuse nationality as the principal reference of democratic politics. This

Is there the Spirit of European Laws? 245 ideal has always been present in European politics as an aspiration and a purpose of unification. It has a dual nature regarding its origin and telos (Bankowski and Christodoulidis, 1998: 347). During the enlargement process, the primary effect of such a concept of European identity on the accession countries of post-communist Europe was negative: it protected them from falling into the abyss of history-oriented nationalism and ethnically based political identity. Nationalisms, which falsely call for the awakening of nations to self-consciousness and ‘invent nations where they do not exist’ (Gellner, 1964: 169), certainly played a significant role in post-1989 central and eastern Europe but they never turned into the politics of state and tribal violence as happened in the Balkans in the 1990s. Due to the influence of this European identity, re-awakened nationalisms, with the exception of Slovakia between 1994 and 1998, never fully determined the course of national politics in the accession countries. The European integration, enlargement and constitution-making processes aspired to enhance the emerging political identity of unified Europe. In this sense, constitution-making was a process of self-reflection, clarification and codification of what constitutes a European citizenry. Like any other modern political constitution, the European Constitutional Treaty was expected to have the symbolic role of ‘the social order’s meta-social guarantor’ (Touraine, 2000: 202). This EU’s meta-social guarantor was building on the long-standing symbolism of the European integration according to which European civility is commonly shared by European nations and thus helps to minimise negative effects of persisting ethnonationalisms. The European civil ascendancy has been based on the shared political future which has been constructed as the reverse of modern European nationalisms and their political myths. This strategy of ‘taming ethnos’ (Prˇibánˇ, 2005: 135) was already typical, for instance, of the attempt at formulating an identity basis for the process of European unification in the Declaration on the European Identity signed by the then nine member states of the European Community. It states that the member states shared ‘the same attitudes to life, based on a determination to build a society which measures up to the needs of the individual’ (Commission of the European Communities, 1973). In the process of European integration, the modern history of European nations has largely been constructed as a negative element in the whole symbolic structure of the EU, representing the history of nationalism, ethnic hatred, racism and anti-semitism. The historical trauma and modern political disasters such as the Holocaust and the two World Wars in the last century have been expected to have an educative and unifying effect for Europeans, both ‘old’ and ‘new’ joining the Union in 2004, and eventually lead to self-identification as a new European citizenry (Habermas, 1999: 152). The modern history adopted by the European constitution-making and enlargement processes was, in the spirit of Montesquieu’s legacy, the

246 Jirˇí Prˇibánˇ history of political demos which was always confronted by the destructive power of nationalist political myths. The legal communication of civil rights and liberties enhances civil self-reflection among European citizens and marginalises the political role of their ethnic bonds and loyalties. Despite its support for regionalisation and power devolution (The Committee of the Regions 2002), the Union officially stands on the side of democratic political identity in the symbolic conflict of demos and ethnos. Reflecting on the Union’s civility and democracy mission, two major political events closely connected with the collapse of communism occurred in Europe: the ethnically justified unification of Germany in 1990, and the civil democratic sense of togetherness inspired by the enlargement of the European Union in 2004. Although the central European and Baltic return to Europe had economic motives similar to those of German unification, they obviously could not be accompanied by the same one Volk drive of identity politics, nationalist solidarity, and ethno-ideological background. The symbolic identification of ‘new Europe’ with the old one could proceed only against the background of common civil virtues and democratic principles. The liberal democratic criteria of EU membership significantly affected the European enlargement process and strengthened the civil democratic collective identity of post-communist political societies. The prospects of EU membership stabilised and speeded up democratic transformations and marginalised illiberal domestic politics. Any enlargement process affects the existing collective identity of the Union and threatens to dilute its predominant values, norms and principles (Michalski and Wallace, 1992; Redmond and Rosenthal, 1998). The strict conditionality policy defined by the Copenhagen criteria consequently were to minimise these identity risks and retain the universalistic, liberal mission of the Union that seeks to unite the peoples of Europe. Restrictive prerequisites for successful application therefore had a significant influence and strengthened the civil and democratic collective identity of the EU member states and the Union itself (Schöpflin, 2000). European political developments since the collapse of communism and the EU enlargement process thus clearly illustrate the difference between the ethno-cultural identity politics still existing at nation-state level and the more general and abstract European identity construed as both a supplement and antidote to ethno-nationalist identity politics. Nation-states can be either unified (Germany), or dissolved (Czechoslovakia) on ethnic grounds. On the other hand, the European Union can function only as an extension of the civil and democratic traditions of these states. It is assumed that the member states of the Union have a post-nationalist, liberal collective identity and that any accession countries: both match the EU members and distinguish themselves from other nonmembers with regard to their adherence to the liberal community values and norms. European states are excluded from [EU] membership only if they do not meet the liberal community standards. (Schimmelfennig, 2001: 175)

Is there the Spirit of European Laws? 247 This pressure and a commitment to liberal democratic values is not limited to the candidate countries. Since the Amsterdam Treaty (Monar and Wessels, 2001), member states have agreed to place the issues of naturalisation, asylum, refugees and immigration policies in the third pillar of the Union’s political architecture, that is, the domain of ‘inter-governmental law’ (Jong, 2000: 25). Under this EU pressure for legal conformity, Germany abandoned its exclusive principle of ius sanguinis and changed the citizenship law by supplementing it with the ius soli principle in the acquisition of German citizenship. The old 1913 citizenship law, was changed in 1999 and made it easier for foreign residents and their children to acquire German citizenship.2 The Union’s civil identity, based on the rule of law and constitutional democracy, was very useful for the post-communist EU accession countries in the 1990s. It was remarkably successful as a strategy for containing central European ethno-nationalism. The EU membership aspirations of individual countries helped to neutralise tensions in the field of ethnic and national minority rights (see, for instance, Semjonov, 2003: 153–4). Furthermore, the rule-of-law-driven civil identity also facilitated the adoption of the principles of liberal constitutionalism and the rule of law in the accession countries during their constitutional and legal transformation. The rule of law was contrasted with the battlefield of everyday politics, corruption, power struggles, confrontations, and instability. The EU accession process incorporating the harmonisation of the post-communist central European and EU legal systems was commonly interpreted as an imposed check and external balance on post-communist internal law and politics. The limitation on the power of post-communist politicians at nation-state level by the EU was popular because of the common public distrust of postcommunist political élites and because of EU membership aspirations. The EU processes of integration and enlargement have thus something general in common—they are designed and perceived as processes of modernisation drawing on the identity of democratic civility.

V. THE ABSENT EUROPEAN DEMOS AND VARIETIES OF EUROPEANISATION

The European community of rights has a weak sense of being-in-common and solidarity. There is no European charisma waiting to be brought to life in this community. The European enlargement processes of the 1990s were supported by a vague sense of common European identity (Cremona, 2 The residency-to-citizenship transition period was reduced from 15 to 8 years and children born to foreign residents who have resided in Germany for 8 years may now acquire citizenship without renouncing other passports and, when they reach the age of 23, have to choose their citizenship.

248 Jirˇí Prˇibánˇ 2003). Nevertheless, this feeling of belonging should not be mistaken for the notion of abstract European solidarity so crucially missing even in the EU constitution-making process and recent attempts at further political integration. The EU enlargement of 2004 was completely uncharismatic for the vast majority of citizens of the old member states and could not support the weak symbolism of the Union’s constitution-making. The absence of the European demos has been an argument in disputes between European and member states’ national institutions and legal systems. The German Constitutional Court’s decisions regarding the division of sovereignty between the European and national legal systems provide a complex example of the technical legal consequences of the non-existence of a European people and any democratic legitimation of the European Union. The Court’s Maastricht judgment and the ‘no demos’ thesis (Weiler, 1995: 219) can be interpreted in two different ways. According to a hard nationalist version, there will never be a European demos which could guarantee as strong a feeling of collective identity—and therefore democratic legitimation—as modern ethnic European nations do at the nation-state level. European democracy is impossible because there is no European people transformable into a political nation. According to a soft version actually applied by the Court, this absence mainly indicates that democracy and constitutional rights guaranteed at the nation state level cannot be compromised by supra-national structures (von Beyme, 2001: 62–4). The concept of demos, which is used in European legal and political debates on sovereignty and normative superiority, is often presented as an essentialist concept even if it is not defined ethnically. It assumes a community integrating individual citizens into a whole composed of values and traditions. Ethnic nationalism and republican nationalism can paradoxically have similar exclusionary effects. The idea of the civil nation as a political unity free of ethnic meaning can, like ethno-nationalist notions of political society, speak the mythical language of historical roots, a genealogy of morals and values, and cultural commitments. Like ethno-nationalist fantasies of the people’s historical destiny and uniqueness, the democratic republican concept of the nation can have cultural fundamentalist and communitarian foundations. This transformation of the democratic nation into an organic community is described by Etienne Balibar as a paradox of ‘republican communitarianism’ according to which: ‘[R]epublican communitarianism’ has made the cultural, scholastic, and administrative non-recognition of ‘particular identities’ (be they linguistic, religious, national) within the nation into the mark of purity that allows one to recognize the character of one’s own political universality. Thus, by a term-for-term reversal that does not fail to produce some strange mimetic phenomena, the struggle against communitarianisms of various degrees of reality, perceived as threats, is turned into the construction of an exclusive identity. (Balibar, 2004: 64)

Is there the Spirit of European Laws? 249 Balibar and others persuasively argue that universalist values can easily become expressions of exclusive and discriminatory particularisms. The European quest for its civil identity has been an effective tool in dismantling nation-state politics which depends on the modern equation of citizenship and nationality. At the same time, Europe’s common identity is entirely uncharismatic and too much identity-building would amount to a social rigidity that is inconsistent with Europe’s diversity, flexibility and cultural differences. Europeanisation by further integration and enlargement of the Union has never been a simple process. It had to face national institutions and local cultures and consequently transformed itself into a pluralistic pattern of numerous local Europeanisations (Snyder, 2000). From the Union’s perspective, there certainly is one overarching pattern of integration manifested, for instance, in the accession conditions of EU enlargement and the further integration principles of the Union’s constitution-making efforts. From the nation state perspective, however, there are many localised Europeanisations. Political power in the EU still depends on nation state politics and national constituencies, and the Union continues to look different from Berlin and Budapest, Lisbon and London or Paris and Prague (Taylor, 1996: 148–9). Under the symbolic umbrella of the European Union, there are many different spirits of European laws corresponding to national legal and political systems and cultures. This interplay of symbolic unity and plurality makes it impossible to reduce European integration to one solid general spirit of the laws and its power to constitute collective identity of a constituent European demos. In Europe, the general spirit of the laws can be manifested only as a plurality of different spirits of the laws and peoples of Europe (Walker, 2002: 317). The most important European political questions, therefore, are: how much identity is a good thing in a large-scale economic, political and cultural unification of Europe, and how much unification can be pursued in the Union without the constituent democratic power? These questions reflect a more general problem of European politics, namely, that European collective political identity based on strong cultural identification may easily become a ‘hobgoblin’ of Euro-chauvinism and little minds (Calhoun, 2001: 35), hiding behind the symbolic formula of the European people as a political nation. VI. EUROPEAN CONSTITUTIONAL PATRIOTISM, CULTURE AND HYBRID IDENTITY

European constitution-making and enlargement persuasively show that it is false to assume that the thin legal, civil rights-based sense of European identity could eventually support the establishment of the thick European demos as the constituent power, supporting the idea of European federal statehood. No charismatic act currently has the power to change this European reality. It is unlikely that European citizenry will transform

250 Jirˇí Prˇibánˇ themselves into a sovereign people with both symbolic and real power to support the establishment of a supreme political and legislating authority in federal Europe. Struggling with limited and weak internal commonality, the political identity of Europe is fortified mainly by constitutional patriotism as its ‘lowest-common-denominator form’ (Calhoun, 2001: 45) that can inspire a we-Europeans feeling but cannot replicate the solid collective identity and abstract solidarity typical of the modern nations of Europe. European symbolisation of political space goes beyond the common understanding of democratic legitimacy based on the question of who constitutes the people, to which there is a mutually agreed and settled answer (Dahl, 1989). In this respect, Joseph Weiler persuasively argued that the identity of the European demos would be too difficult to formulate through the concepts of nationhood, sovereignty, and democratic state. According to him, the process of European state and nation building should not end up in transforming the EU into a (super)state with a new feeling of European nationalism (Weiler, 1999: 94). Constitution-making is a technique supporting the emergence of European patriotism. At the same time, European constitutional patriotism is a paradox: the European legal system is criticised as cold and dehumanising but hot emotions of togetherness and self-identification are to be inspired by the legal communication of the rights, liberties and mutual responsibilities of Europeans. A particular European identity overarching collective identities of different European nations is fictionalised by supporting itself on the moral universalism of human rights and constitutional democracy. In the European constitutional patriotism discourse, human rights semantics is appropriated as a set of discursive political strategies and moral values. The European legal system, especially its emerging constitutional domain, is then expected to define what is good in the case of Europe and what is both morally and politically desirable for citizens of the Union, that can be symbolised by law as a common cultural pattern. The global aspirations of Europe cannot be realised by simply building European identity as a new form of modern national identities and constitutional patriotisms (Horseman and Marshall, 1994). The European Union cannot be built according to the political architecture and principles of modern nation states. European integration includes: a strange aporia: the typically European notion of sovereignty, a long-term product of European history in which the constitution of the people and the constitution of the state come together, turns out to be inapplicable to Europe itself. (Balibar, 2004: 135)

As regards European patriotism and identity, the legal symbolism is obviously centred on the concept of European citizenship. The original Maastricht citizenship provisions incorporated in Article 8 of the Maastricht Treaty have been elaborated in Article 10 of the draft Constitutional Treaty

Is there the Spirit of European Laws? 251 and declare that ‘(e)very national of a Member State shall be a citizen of the Union. Citizenship of the union shall be additional to national citizenship; it shall not replace it’. Although national citizenship is not affected, this provision clearly makes citizens of the EU member states the subject of rights and entitlements provided at the European level. This trend of directly granting rights at the European level weakens old communal loyalties, but it does not mean a full decoupling of national and European citizenship. It is still member state nationality which opens the way to the rights guaranteed for European citizens (Weiler with Haltern and Mayer, 1995: 21). The legal conditions of European citizenship define the common ground and boundaries of those possessing the same European rights and duties. The multifaceted collective identity of Europe and the different collective identities of European nations eventually link the process of common identity-building to the legal formation of a European citizenry and the distribution of rights and duties guaranteed for citizens by European law. The problem of citizenship involves a number of issues, such as nationality, sovereignty, identity, statehood, civil rights and conflicts between them. National identities survive without the sovereignty of European nation states. Political rights are guaranteed supra-nationally but enforced by the coercive power of a nation state. A de facto constitution of European citizenship has been in place for decades even in the absence of a European public sphere and democratic deliberation. It is a ‘citizenship without community’ (Balibar, 2004: 76) Consequently, the European nation cannot be political in the sense of the political Subject—the mythical body disposing of the constituent power. However, it apparently can be imagined and fictionalised as a political culture of civil liberties and democratic values. The making of a European civility is possible by extending legal communication to the cultural domain but this expansion, at the same time, leaves the different national legacies of collective identities in Europe untouched as cultural traditions. One cultural layer defined by the legal symbolism of European citizenship is constituted next to other layers of different European cultures. A large-scale collective identity, such as the European one, is a field of ‘multiple, overlapping, and sometimes even conflicting identities’ (Calhoun, 2001). Unlike the image of a single European people, European identity can be constructed only as a hybrid mixture of common civil ethos and persisting different national loyalties that is impossible to ultimately consolidate at either the legal or the political level. Despite their persistence, the building of a European political identity can nevertheless proceed only by marginalising ethnically established loyalties and traditional communal identities. This marginalisation is part of the internal logic and constitution of the European Union as an answer to modern European history, its nationalism and ethnically incited political violence.

252 Jirˇí Prˇibánˇ Neither the symbolic meaning of citizenship, nor its effective legal operation, therefore can secure the unity of the European Union. European citizenship and other legal categories cannot simply be subjected to globalised cosmopolitan ethics of which the European Union would pretend to be an avant-garde supra-national organisation. European identity and the spirit of Europe can emerge only as a symbolic space of heterogeneity, permanent contestation of existing practices and compromise-oriented negotiations.

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254 Jirˇí Prˇibánˇ Schöpflin, G (2000) Nations, Identity, Power: The New Politics of Europe (London, Hurst). Schulze, H (1994) Staat und Nation in der Europäischen Geschichte (München, CH Beck). Semjonov, A (2003) ‘Ethnic Limits of Civil Society: The Case of Estonia’ in N Götz and J Hackmann (eds), Civil Society in the Baltic Sea Region (Aldershot: Ashgate) 145–58. Shklar, J (1987) Montesquieu (Oxford, Oxford University Press). Snyder, F (ed)(2000) The Europeanisation of Law: the legal effects of European integration (Oxford, Hart Publishing). Taylor, PG (1996) The European Union in the 1990s (Oxford, Oxford University Press). Tilly, C (ed)(1975) The Formation of Nation-States in Western Europe (Princeton, NJ: The Princeton University Press). Timasheff, NS (1939) (1974 edn.). An Introduction to the Sociology of Law (Westport: Greenwood Press). Touraine, A (2000) Can We Live Together? Equality and Difference (Cambridge, Polity Press). Treaty establishing a Constitution for Europe. No 2004/C 310/01. (2004) Official Journal of the European Union 47: 1–474. Waldron, J (2000) ‘Cultural Identity and Civic Responsibility’ in Will Kymlicka and Wayne Norman, eds. Citizenship in Diverse Societies (Oxford, Oxford University Press) 155–68. Walker, N (2002) ‘The Idea of Constitutional Pluralism’ Modern Law Review 65: 317–59. Weiler, JHH (1995) ‘Does Europe Need a Constitution? Reflections on Demos, Telos and the German Maastricht Decision’ European Law Journal 1: 219–58. —— (1999) The Constitution of Europe: ‘Do the new Clothes have an Emperor?’ and Other Essays on European Integration (Cambridge, Cambridge University Press). Weiler, JHH with Haltern, UR and Mayer, FC (1995) ‘European Democracy and Its Critique’ in J Hayward (ed), The Crisis of Representation in Europe (London: Frank Cass) 4–39. Weiss, BG (1998) The Spirit of Islamic Law (Athens, University of Georgia Press). Welsch, W (1996) Vernunft: Die zeitgenössische Vernunftkritik und das Konzept der transversalen Vernunft (Frankfurt, Suhrkamp). Žižek, S (2001) Did Somebody Say Totalitarianism? Five Interventions in the (Mis)use of a Notion (London, Verso).

9 How to Conceptualise Law in European Union Integration Processes?—Perspectives from the Literature and Empirical Research BETTINA LANGE

I. INTRODUCTION

T

his chapter argues in the first section that some of the literature on the role of law in European Union (EU) integration perceives law in too narrow terms. It focuses on instrumental, relatively autonomous and formal conceptions of state and supranational law, implemented by official legal actors. While some perspectives—in particular institutionalist and constructivist accounts—start to move beyond this narrow conception, more empirical research about ‘EU law in action’ will further advance debates about the nature of EU law. The second part of the chapter therefore continues to question the image of instrumental, formal and relatively autonomous law in EU integration by drawing attention to variation in open and closed norms. It outlines how in particular open norms are discursively constructed. The analysis is based on a discussion of qualitative empirical data on the implementation of the EU Directive on Integrated Pollution Prevention and Control (IPPC 96/61/EC).

II. PERSPECTIVES FROM THE LITERATURE ON THE NATURE OF LAW IN EU INTEGRATION

Variation in Forms of Law in EU Integration It is almost impossible to generalise about the legal dimension of EU integration. In particular recent shifts from uniformity and harmonisation of law towards greater flexibility and differentiation in EU integration underscore this point (DeBúrca and Scott, 2000). In the ‘Europe à la carte’ or

256 Bettina Lange ‘multi-speed Europe’ there is no single legal integration process. Moreover, how law has been conceptualised in EU integration processes has varied according to the particular phase of EU integration discussed, the particular policy sector under consideration and the specific theoretical perspective adopted. For instance, the ECJ’s doctrines of direct effect and supremacy of EC law over national law are frequently cited examples for the importance of instrumental law in the early phases of EU integration in the 1960s and 1970s (Haltern, 2004: 179). There have also been attempts to associate ‘soft’ law, such as recommendations and opinions, as well as legally nonbinding guidelines and benchmarks, with particular policy sectors, such as social policy. But often over a period of time various types of law have been used in one policy sector. For instance, formal law did not play an important role in the first phase of the EU social policy. But it did so in a second phase, starting in 1972 when Member State governments engaged in a period of intense legislative activity and a Charter of Fundamental Social Rights was passed in 1989 (Barnard, 1999: 483). Moreover, recent literature on ‘hybrid’ forms of law points out that both ‘hard’ and ‘soft’ law are used in conjunction in some policy fields, such as EU fiscal policy co-ordination and employment policy (Trubek, Cottrell and Nance, 2005). Hence, some variation in forms of law in EU integration has been recognized in the literature on EU integration processes. But the following section argues that a formal, instrumental and relatively autonomous conception of law which focuses on the role of official legal actors has been pervasive in discussions of the role of law in EU integration, and especially so in some political science theories of EU integration (see also DeBúrca, 2005).

A Focus on Official Legal Actors Promoting EU Integration Interest in the European Courts only started to develop in the 1990s among political scientists. But the European Court of Justice (ECJ) has now become a key reference point for analysing EU integration (Wincott, 2002: 6, see, for example, Stone Sweet, 2004). While evaluations of the ECJ and the Court of First Instance vary from ‘hero’ to ‘villain’, the courts are considered as key drivers of EU integration (Haltern, 2004: 177). This is hardly surprising. The ECJ’s early decisions on supremacy and direct effect of EC law very visibly and dramatically propelled EU integration forward (Case 6/64, Flaminio Costa v ENEL [1964] ECR 585, 593 and Case 26/62, NV Algemene Transporten Expeditie Onderneming van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1). A good example for this focus on the courts is Geoffrey Garret’s (1995) debate with Anne-Marie Burley and Walter Mattli (1993) about different theoretical perspectives for a political science account of EU legal integration. Burley and Mattli’s (1993) study of legal integration is based on an

Conceptualise Law in EU Integration Processes 257 examination of the preliminary reference procedure under Article 234 EC Treaty through which national courts can refer questions on EC law to the ECJ. They seek to develop a political explanation of the role of the ECJ ‘from the ground up’ (Burley and Mattli, 1993: 52). They argue that the ECJ created an enduring pro-community constituency of private individuals by giving them a direct role in the implementation of EC law through the doctrines of supremacy and direct effect of EC law (Burley and Mattli, 1993: 60). In contrast to this and invoking more of a ‘top-down’ perspective, Garrett points to the continued importance of member states who can ignore ECJ decisions or change the EC legal order through concerted action (Garrett 1995: 172). Not only the European, but also national courts, have featured significantly in accounts of the legal dimension of EU integration. Judicial integration in the EU is said to involve ‘a dialogue between supranational and national judges’ (Stone Sweet 1998: 305; referred to in Haltern, 2004: 177). Some studies further differentiate between various levels in national court hierarchies which can react differently towards the EU legal order. Some member states’ higher courts have at times limited the expansion of EC law into the national legal order, in order to preserve their scope for autonomous decisions. But lower courts can gain advantages from building their jurisprudence on EC law (Burley and Mattli, 1993: 63). If they refer questions on EC law raised in cases before them to the ECJ under the preliminary reference procedure in Article 234 EC Treaty, they contribute to the development of new EC legal principles. These in turn can bind the higher national courts and thus enable lower courts to expand their influence within national court hierarchies (Haltern, 2004: 183). A focus on courts foregrounds also other official legal actors in EU integration. For instance, neo-functionalists argue that private litigants matter, because they often represent transnational economic interests. They mobilise EC law through legal actions before national courts in pursuit of these interests which in turn promotes EU integration (Mattli and Slaughter, 1998: 180, 204; Burley and Mattli, 1993). A focus on official legal actors, such as courts and litigants, is just one aspect of a potentially narrow conception of law in EU integration. Limited conceptions of EU law have also perceived law as formal, instrumental and relatively autonomous.

A Focus on Formal Law in EU Integration Formal conceptions of law focus on legal doctrine—‘institutionally defined materials of a collective tradition’—which become key to determining what the law is. Formal law works through conditional programmes. If various conditions are fulfilled for the applicability of a legal rule then a particular legal result will follow (Teubner, 1986: 252). Formal law also suggests that

258 Bettina Lange legal reasoning is objective, because it refers to ‘impersonal purposes, policies and principles’. Determinate solutions can be found to issues of legal choice through deductive methods, such as subsuming social facts under a gapless and rational system of legal rules (Unger, 1983: 564). Formal conceptions of law have also been prevalent in accounts of EU integration. When researchers refer to ‘law’ in EU integration, they usually mean formal primary Treaty law and secondary legislation, such as Directives and Regulations, as well as judgments of the European Courts and Member State law (see, for example, Burley and Mattli, 1993: 43). Hence, formal law ‘in the books’—distinguished from soft law measures, such as policy guidance, circulars and recommendations—has been perceived as central to EU integration processes (Snyder, 1990: 1): Legislative activity is the main parameter by which we measure the growth in the scope of EU activities. (Dehousse, 2002: 207)

Given the sheer number and easy visibility of formal legal measures it is perhaps not surprising that they are a key reference point for conceptualisations of EU law. While there were just a few dozen EC Directives in the 1960s, by 1986 this figure had risen to over 700 Directives (Cappelletti, Seccombe, Weiler, 1986: 39). The White Paper for the completion of the Single European Market alone proposed 282 legal measures (Armstrong and Bulmer, 1998: 5, 23). Also some accounts of EU integration from a neo-realist perspective focus on formal law (see, for example, Garrett, Kelemen and Schulz, 1998 and Garrett, 1995). Neo-realists assert the continuing importance of sovereign nation states in regional integration. Hence, one of the issues which neorealist accounts of EU integration have to address is how the focus on member states’ self-interests can be reconciled with the existence of EU supranational institutions and a supranational legal order. For instance, Geoffrey Garrett (1995, 175–177) has suggested that member states will try to uphold the validity of a national law which is in conflict with EC law, if an important national interest is at stake. But member states can also have an interest in supporting ECJ decisions—even where the ECJ is declaring a national law as incompatible with EC law—because the ECJ is enforcing the political bargains which member states have struck when legislating in the Council. Each member state can rely on the fact that not just itself but also other member states will be held to these agreements. Hence, the ECJ acts in all member states’ interests by resolving problems which arise from incomplete contracting between them (Garrett, 1995: 172). In this neo-realist account of the role of law in EU integration law is, however, conceptualised as formal law, as ‘law in the books’, in particular as court judgments and legislation. Some neo-realists have also argued that the executives of powerful member states control EU integration processes. It is the formal law which is

Conceptualise Law in EU Integration Processes 259 considered as central to this exercise of control. Member states exert significant influence through the drafting of Treaties and their revisions, as well as through controlling the process of passing secondary formal legislation in the Council. Neo-functionalist approaches are often considered to be a major alternative to neo-realist accounts of EU integration. But elements of neofunctionalist perspectives also focus on formal law. Neo-functionalism draws on the functionalist idea that social action can be explained through reference to its consequences. Hence, consequences are important elements of the causes for human behaviour (Schmitter, 1971: 235, referring to Arthur Stinchcombe). For instance, a particular social action can be analysed in terms of its contribution to the maintenance of a stable society. By working with a utilitarian concept of interests, neo-functionalism departs from functionalism which considers actors to pursue common goods rather than self-interests (Burley and Mattli, 1993: 54). In particular the neo-functionalist concepts of ‘spill-over’ and ‘spillaround’ direct attention to formal law in EU integration. ‘Spill-over’ involves to increase both the ambit and level of integration efforts, while ‘spill-around’ describes the lateral extension of integration activities without a change in the level of authority (Schmitter, 1971: 242; Schmitter, 1996: 5, 7). The notions of ‘spill-overs’ and ‘spill-arounds’ seem apt descriptions of the extension of harmonising formal EC law to a number of policy fields for which the Treaties of Rome 1958 originally did not allocate competencies to the European Community institutions. For instance, the formal legal rules establishing the internal market have been followed by further formal EC law, such as environmental and social regulations in order to harmonise regulatory burdens on businesses throughout the EU and to create a ‘level playing field’. Formal EC law has also been at the heart of another spillover effect, from economic, political and social integration to an integration of the member states’ different legal systems. For instance, an increase in trade in goods and services in the internal market has spawned EC Regulations and Directives which harmonise standards for products and the supply of services. Moreover, formal law is also central to further spillover effect in the EU. Actors’ expectations change as they start to operate within the rules developed by the ECJ. Hence, EU integration can involve a spill-over effect from a legal into a political sphere. The creation of new rights and legal entitlements, can give rise to raised expectations which in turn can underpin new political integration initiatives (Rosamund, 2000: 103). Hence, elements of neo-functionalist accounts of EU integration, in particular the notions of ‘spill-over’ and ‘spill-around’ direct attention to the proliferation of formal law in EU integration. But some accounts of EU integration start to abandon formal conceptions of law. In particular, EU ‘law in context’ studies recognise the importance of a plurality of norms in EU integration processes, beyond a focus on formal

260 Bettina Lange ‘hard’ supranational and state law. For instance, ‘laws, customs and practices of local communities, firms and other organisations’, have been considered as key to an analysis of the EC’s common agricultural policy, food aid legislation and the program for the completion of the internal market (Snyder, 1990: 14). Moreover, also institutionalists1 work with a broad norm concept, by recognising the relevance of social norms to EU integration processes. In fact, social and organisational norms have been considered by some institutionalists as institutions in their own right. But also where institutionalists define institutions in more conventional terms as formal organizations, such as courts, legislatures and bureaucracies, social norms still matter because they govern behaviour within these institutions (Armstrong and Bulmer, 1998: 68). Normative structures contribute to the way policy problems are framed, managed and finally solved (Armstrong and Bulmer, 1998: 258–9). Institutions provide the ‘rules of the game’ (Armstrong, 1995: 191; Scott, 1995: 196). Hence both EU supranational as well as domestic institutions are important for shaping the reception, interpretation and enforcement of EC legal norms. Hence, institutionalists argue that a wide range of institutions play a role in EU integration and that these institutions themselves or aspects of them have normative force. For instance, ‘new institutionalism’ directs attention to cultural dimensions of institutions, such as belief systems, rhetoric, ideologies and knowledge (Armstrong and Bulmer, 1998: 51, 52). Even discourses have been considered as institutions (Risse-Kappen, 1996: 69). Hence, from an institutionalist perspective not just formal law ‘in the books’ is ascribed normative force, but also a whole range of small-scale social norms are rendered visible as significant in EU integration processes. But not just institutionalists also constructivists move beyond formal conceptions of law in EU integration. In fact constructivists arguably go furthest in abandoning formal conceptions of law by emphasising the fluid, changeable and contested aspects of social life. They start from the 1 They straddle neat distinctions between neo-functionalist and neo-realist, intergovernmental perspectives. While some institutionalists have drawn on neo-functionalism, under the label of ‘supranational institutionalism’, others—intergovernmental institutionalists’—have relied on neo-realist perspectives (Armstrong and Bulmer, 1998: 30). There are various strands of institutionalism, such as historical, rational choice and sociological institutionalism. Rosamund suggests that for rational choice institutionalists actors formulate their preferences on the basis of a rational pursuit of self-interest, but preference formation is exogenous to institutions. In contrast to this historical institutionalists think that institutions structure political situations. Institutions are independent variables which can entrench path dependent forms of decision-making. Sociological institutionalists work with the idea of a ‘mutual constitution of actors and institutions’ (Rosamund, 2000: 119). In fact sociological institutionalism has been perceived as an example of constructivist approaches towards EU integration (Rosamund, 2000: 120).

Conceptualise Law in EU Integration Processes 261 idea that social realities are negotiated between actors. They depart from the neo-realist emphasis on exogenously pre-given interests and preferences as key drivers of EU integration. By drawing attention to the role of ideas they also consider interests as socially constructed and allow for the possibility that social actors’ identities and their interests can change (Wiener and Diez, 2004: 9; Jupille, et al, 2003: 14; Christiansen et al, 1999: 528–532). This different view of the social world also feeds into conceptions of law which go beyond formal law ‘in the books’ by recognising the normative potential of not just material, but also meaning dimensions of social life. To conclude, discussions of the role of law in EU integration often invoke a notion of formal law. But institutionalist and constructivist approaches also highlight the importance of small-scale social norms in EU integration processes. Accounts of EU integration, however, have also frequently invoked instrumental conceptions of law. Instrumental Conceptions of Law in EU Integration Instrumental law is outcome driven (Haltern, 2004: 179). It implies that social actors’ behavior can be changed in a direct, causal linear manner, in response to aims clearly specified in legal rules: The goal determines the program, the program determines the norm, the norm determines changes of behavior, those changes determine the desired effects. (Teubner, 1986: 312)

According to an instrumental perspective law can fulfill specific functions, such as ‘regulation’ or ‘integration’. In relation to the regulatory capacity of law the emphasis is on the outcomes which law can deliver rather than on complex social interaction processes in the implementation field which may actually prove to be obstacles to law’s regulatory function (Teubner, 1986: 305). The idea of instrumental law has been questioned in particular through research in the context of national law (see, for example, Haines and Gurney 2004; Scott 2003). But from the perspective of the member states the EU has been described as a new ‘regulatory state’ (Majone, 1994). While member states have cut back welfare state provisions—one of the traditional areas of regulatory, and hence instrumental law—the EU is expanding its activities in education, health care and culture. Moreover, the maintenance of free economic exchange in the single market has been accompanied by further EU regulation, such as a dense web of competition law. De-regulation of member state regulatory regimes has been at times accompanied by re-regulation through the EU (Majone, 1994). Moreover, in the context of EU integration instrumental conceptions of law flourish, in

262 Bettina Lange particular through the idea that law integrates (Gaja et al, 1986: 124–126; Cappelletti, Seccombe, Weiler, 1986: 36): That law and the legal system have been among the primary instruments for controlling social relationships so as to achieve the desired balance requires little elaboration here. (Cappelletti, Seccombe, Weiler, 1986: 4, emphasis added)

The ‘desired balance’ refers to a trade-of between, on the one hand integration, and, on the other hand, autonomy of individuals and diversity of action among different member states, each with their own specific cultural traditions. Instrumental conceptions of law also feature in political scientists’ debates about whether law or politics is a key driver of EU integration. Intergovernmentalists have argued that politics is dominant, because law is merely an instrument of political will (Moravcsik, referred to in Armstrong, 1998: 158). For instance, Moravcsik sees the ECJ as embedded in a web of member states’ interests. The latter are the key drivers for EU integration and hence the ECJ is not an autonomous legal force. Member states have only delegated legal powers to the court. ECJ judgments are considered to merely sanction positions for which member states have signaled their approval beforehand (Moravcsik, summarised by Armstrong, 1998: 157). To conclude, various accounts of EU integration have invoked instrumental conceptions of EU law. But some approaches have gone beyond this perspective. For instance, some constructivist accounts depart from instrumental conceptions of EU law. Ulrich Haltern’s (2004) cultural perspective questions the idea that EU law is an ‘object’ and ‘instrument’ of integration. He perceives law as a meaning generating social practice: Law’s rule is a system of beliefs—a structure of meaning within which we experience public order. (Haltern, 2004: 192, referring to Kahn, 1997)

Accounts which point to indeterminacy in EC law depart from instrumentalism (see, for example, Stone Sweet, 2004: 9). For instance, the ECJ is perceived as operating within a ‘zone of discretion’. This departs from the idea that the ECJ is simply an agent for the interests of the most powerful EU member states (Stone Sweet, 2004: 28). Moreover, this perspective questions an instrumental conception of law by highlighting ‘unintended consequences’ which are routinely generated by the supranational institutions, including the ECJ (Stone Sweet, 2004: 235). Finally, also some institutionalist approaches to EU integration depart from instrumental conceptions of EU law. For instance, Kenneth Armstrong (1998: 156) perceives EU law as an ‘institutional structure’ which has a meaning dimension. He rejects a strongly instrumental conception of EU law also by relying on Habermas’s distinction between law as a medium and law as an institution. ‘Law as a medium’ sees law as a functional socio-technological

Conceptualise Law in EU Integration Processes 263 steering instrument which runs the risk of colonising economic and political sub-systems in society. It can thus be a threat to central areas of cultural reproduction, social integration and socialisation. ‘Law as an institution’, in contrast, takes on a more modest role and departs from an instrumental conception of law. Here law only externally constitutes and guarantees the autonomy of spheres of the life world. (Habermas, 1981: 546, 544; referred to in Teubner, 1986: 314). Moreover, institutionalist accounts have also moved beyond strongly instrumental conceptions of law by emphasising path-dependency, without implying determinism (Armstrong, 1995: 170). This means that the history of decision-making in a particular policy field can steer decision-making outcomes in a specific direction (Maher, 1999: 598; Armstrong, 1995: 169). Previous decisions about the use of law in a specific policy area restrict choices further down the line. Hence law can not simply be wielded in an unrestricted, instrumental manner for the implementation of policy choices. To summarise, instrumentalism in the sense that law can fulfill specific functions, such as regulation and integration is key to a range of accounts of law in EU integration. Constructivist and institutionalist perspectives, however, recognise limits to instrumental law. Not just instrumentalism, however, but also images of relatively autonomous law have been invoked in accounts of EU integration. Relatively Autonomous Law in EU Integration Accounts of EU integration often rely on images of relatively autonomous law. Hence, they already allow for a degree of interconnection between law and its political, social and economic contexts. Notions of fully autonomous law—in the sense that law is clearly demarcated from political, social and economic processes—have been rather invoked in the context of nation states. Autonomous law is associated with the rise of the nation state in the nineteenth century and the development of national constitutional legal orders. In liberal legal ideology law’s legitimacy is based on its relative autonomy from a political, economic and social sphere. This autonomy is expressed through constitutional concepts, such as ‘the rule of law’ and ‘separation of powers’ which establish boundaries between legal and political action. But a notion of autonomous law does not fit easily the EU transnational society and its supranational legal order. To begin with, a clear concept of the state is lacking in the still evolving EU supranational polity. In addition, the EU political system can not be just perceived as liberal democratic. Technocracy, elite rule and corporatism also characterise its political order. Furthermore, tasks assigned to EU law, such as the building of the integrated market and the development of political co-operation under the third pillar of the Maastricht Treaty, make it difficult to disassociate EU law from economic and political processes. Hence accounts of EU integration have often invoked an image of only relatively autonomous

264 Bettina Lange law. Relatively autonomous means that law is not a completely self-contained field of social action. But while it is recognised that law is embedded in social, economic and political contexts, law is still considered to have a significant degree of independence from its environments. For instance, neo-functionalists suggest that EU law is relatively autonomous because legal integration is perceived as different from other forms of EU integration. Neo-functionalists now recognise the significance of transnational interdependencies in the sphere of law, such as through international law firms specialising in EU law, through networks between lawyers in Europe, through the acquis communautaire itself and through the more abstract principle of respect for the rule of law in the EU. But these transnational interdependencies in the sphere of law are perceived as ‘quite a different form of interdependency’ than the transnational economic interdependencies which early neo-functionalist accounts focused on (Schmitter, 1996: 13). Similarly, Burley and Mattli’s (1993; Mattli and Slaughter, 1998: 196) account of legal integration works with a conception of EU law as relatively autonomous. They argue that law serves as a ‘mask’ and a ‘shield’ for politics. Just as early neo-functionalist theory suggested that economics was an important domain for promoting EU integration because it could help to avoid a ‘direct clash of political interests’, law similarly provides a domain through which self-interested supranational and sub-national actors can promote integration, but without direct reference to political interests, thus avoiding potential political conflicts (Burley and Mattli, 1993: 44). Law’s ability to integrate is directly related to it being relatively autonomous from a political sphere: The strength of the functional domain as an incubator of integration depends on the relative resistance of that domain to politicization. (Burley and Mattli, 1993: 44)

There are also other EU integration theories which discuss law—politics interrelationships that invoke a notion of relatively autonomous law. Joseph Weiler’s (1981) account of normative and decisional supranationalism highlights linkages between law and politics in EU integration. But law and politics are still understood as two separate spheres of social action. Legal processes are not considered as essentially political processes. Joseph Weiler contrasts normative supranationalism—ECJ judgments which have promoted EU integration—with decisional supranationalism— the promulgation of harmonising EC legislation by member states in the Council. These two forms of supranationalism, one located in a legal and the other in a political sphere, are portrayed as alternative drivers for EU integration (Burley and Mattli, 1993: 46–7). Joseph Weiler argues that in the 1970s legal supranationalism filled the vacuum in EU integration created by the decisional gridlock in the Council. While decisional

Conceptualise Law in EU Integration Processes 265 supranationalism was on the decline, the gap was filled through the ECJ’s normative supranationalism, in particular through its mutual recognition doctrine for the free movement of goods (Case 120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung fur Branntwein [1979] ECR 649). This stipulates that goods which are lawfully produced and marketed in one member state have to be allowed onto the market in other member states. It bypasses a need for agreeing harmonising EC secondary legislation in the Council. Also Ulrich Haltern’s cultural perspective seems to retain elements of a conception of law as relatively autonomous. He clearly differentiates between legal and political institutions. For instance, he attributes the success of the preliminary reference procedure under Article 234 EC Treaty to its non-political nature. In his view this results from the fact that judicial rather than political institutions, such as the ECJ and national courts, are involved in deciding how EC law should impact on member state law. In the context of the preliminary reference procedure he considers courts as neutral arbiters which bypass political actors, such as member states (Haltern, 2004: 182). But there are also accounts of EU integration which move away from the idea of relatively autonomous law. Here law and politics are not necessarily seen as conceptually separate and thus are not alternative driving forces of EU integration. For instance, Daniel Wincott argues that law can be open to ‘strategic political intervention’. It can become politicised and thus differ from the ‘ideal of the law’ (Wincott, 2002: 9, 25). Moreover, political institutions—though separate from European law - are considered as part of the strategic context in which the ECJ operates. Hence, the ECJ is perceived as subject to political influence. This is limited, however, by the ECJ’s imperative to keep its image of a ‘legal institution’ (Wincott, 2002: 11). Political institutions are also recognised as important for legal developments in a more general sense. Daniel Wincott points out that it was the Commission’s legal service which first came up with the idea that EC Treaty provisions should be directly effective. The ECJ gave this view formal legal expression through its judgment in the Van Gend en Loos case (Case 26/62 [1963] ECR 13). To conclude, some accounts of EU integration have been informed by potentially narrow conceptions of law which replicate the internal descriptions of the legal field which the official EU and state legal systems generate. These conceptions focus on instrumental, relatively autonomous and formal ‘law in the books’. But in particular constructivist and institutionalist perspectives go beyond this by working with a broader concept of ‘law’ which recognises the normative force of belief systems, culture and values, as well as small-scale social norms organising institutional life. More empirical research will also further advance analysis of the role of law in EU integration which transcends narrow conceptions of normativity. Developing rich

266 Bettina Lange conceptions of law – which go beyond and thus question formal, instrumental and relatively autonomous notions of law—has been a key theme of sociology of law approaches which focus on an exploration of the ‘law in action’. The following section is based on a ‘law in action’ approach which also considers the role of discourses in how EU law is established as a meaning generating practice. Hence, section two focuses on an analysis of qualitative empirical data on the implementation of the EU Directive on Integrated Pollution Prevention and Control (IPPC Directive, 96/61 OJ L 257 10/10/1996 at 26). The analysis highlights variation in norm closure and openness as a key dimension of EU law in action here. It thus questions a conception of EU law as formal, instrumental and relatively autonomous. It also departs from a focus on official legal actors, such as courts and litigants in the implementation of EU law.

III. OPEN AND CLOSED NORMS IN THE IMPLEMENTATION OF THE EU IPPC DIRECTIVE

Key features of the IPPC Directive As its name suggests, the EU Directive on Integrated Pollution Prevention and Control (IPPC) provides for a holistic approach to environmental regulation and hence controls the emission of pollutants from mainly large industrial installations to all three interconnected media, air, water and land (Article 9; Scott, 2000: 260). This is meant to avoid the transfer of pollution from one environmental medium to another which can occur through media-specific environmental regulation. For instance, in the latter case reducing emissions to water through a waste water treatment plant at an installation can generate hazardous filter sludges which—disposed of in a landfill site—can cause pollution to land. Hence, in this case pollution loads are simply shifted from a water course to land. But how does the IPPC Directive seek to achieve holistic environmental regulation? Its key regulatory tool is a technology standard. According to Article 3 of the Directive, member states shall ensure that operators listed in Annex I to the Directive take ‘all the appropriate preventive measures against pollution, in particular through application of the best available techniques’. Article 2 No 11 of the IPPC Directive provides only a rudimentary definition of ‘the best available techniques’: BAT shall mean the most effective and advanced stage in the development of activities and their methods of operation which indicate the practical suitability of particular techniques for providing in principle the basis for emission limit values designed to prevent and, where that is not practicable, generally to reduce emissions and the impact on the environment as a whole. (IPPC Directive, 96/61 OJ L 257 10/10/1996 at 29)

Conceptualise Law in EU Integration Processes 267 The Directive lists in Annex IV for further criteria for defining BAT. They refer to environmental considerations, such as waste minimisation, energy efficiency of regulated processes, the precautionary principle and prevention of damage to the environment. But Annex IV, 1st sentence of the IPPC Directive also states that the ‘costs and benefits of a measure’ are to be considered. Moreover, when member state regulatory authorities determine BAT for a specific installation they have to take into account, but are not bound by socalled BAT Reference Documents (BREFs) (Annex IV No 12 IPPC Directive). According to Article 16(2) of the IPPC Directive the EU Commission shall organise at the EU level an information exchange between representatives of industry and member states on what constitute ‘the best available techniques’. Departing from the text of Article 16(2) of the IPPC Directive the EU Commission has also invited environmental NGOs to participate in this information exchange. The IPPC Directive does not further specify how this information exchange should be organised. Hence, the EU Commission has developed its own committee procedure for this purpose. First, the EU Commission has set up Technical Working Groups (TWGs) for each of the industrial sectors regulated by the IPPC Directive. TWGs are made up of representatives from industry, Member States, often from regulatory authorities, and environmental NGOs. They are meant to focus on technical issues in the definition of BAT for a particular sector. Second, the EU Commission has also set up the ‘Information Exchange Forum’ (IEF) which nearly mirrors the composition of the Technical Working Groups. Again, representatives from industry, high ranking representatives from Member States’ environmental administrations, such as national environmental ministerial staff, and representatives from NGOs make up the IEF. The IEF is meant to focus on wider and unresolved EU policy questions in the determination of BAT. But not just the EU level BREF writing process is key to the further definition of what constitute ‘the best available techniques’ under the IPPC Directive. What constitutes BAT is also further defined through national implementing legislation and at the local level through the setting of BAT conditions in IPPC licences issued to specific installations. The empirical research discussed here focuses in particular on the EU and local level of BAT determinations. It draws on three qualitative case studies. The first case study involved a two months stay with the European IPPC Bureau which hosts the drafting of the EU BREF documents. Data were collected through semi-structured interviews with staff co-ordinating the writing of the BREFs and through analysis of some of the Bureau’s background files on the writing of specific BREFs. The second and third case study consisted of a two months research period each with a German and an English regulatory authority in order to examine the implementation of the IPPC Directive through national legislation and the licensing of specific sites (see also Lange, 2005). So what does the empirical research tell us about the nature of law generated during the implementation of the IPPC Directive?

268 Bettina Lange What is BAT? Open and closed norms Section 1 of this chapter argues that some of the literature on the role of law in EU integration perceives law in potentially narrow terms by focusing on its formal and instrumental dimensions. Moreover, law is sometimes perceived as relatively autonomous from its social contexts. So what can the empirical analysis contribute to questioning these images of law and to developing different understandings of the nature of EU law? At the heart of conceptions of law as formal, instrumental and relatively autonomous is the idea that law is distinct, bounded and has a specific normative content. This section questions this image by analysing variation in normative openness and closure of BAT standards during the implementation of the IPPC Directive. Variation in open and closed BAT norms highlights that the practical implementation of the key legal obligation under the IPPC Directive—that operators must use ‘the best available techniques’—generates a variety of different norms. While the text of the IPPC Directive seems to suggest that ‘the best available techniques’ are a specific technology standard, in practice social actors invoked the BAT concept as a description of a range of normative phenomena. At times determinations of BAT generated a specific, bounded pollution control standard to which actors in the field ascribed a prescriptive function. Hence, BAT norms are closed if there is a specific conclusion to a process of pinning down, specifying and rendering concise what are ‘the best available techniques’ for an industrial sector or a particular installation. For instance, a closed BAT norm prescribes a particular pollution abatement technology for an installation, such as a bagfilter for limiting dust emissions to air. It also imposes a specific emission limit value in the site licence, such as 10 mg/m3 of dust, which has to be achieved during the operation of the dust filter. BAT norms would also be closed through reference to an agreed validated measurement technology for an assessment of whether the emission limit value had been achieved. Moreover, closed BAT norms are—in contrast to open BAT norms—to some extent abstracted and differentiated from their social contexts. Social actors ascribe prescriptive force to closed BAT norms. BAT norm closure, however, does not necessarily require the identification of just one specific technique. This is particularly unlikely where BAT determinations are achieved for a whole industrial sector, such as in the EU wide BREF notes or in national guidance notes or binding rules. Closed sector wide BAT determinations often involved reference to a specific and limited number of techniques: It is not the best available technique, because that would not be accepted, but it is the top 10% of the installations. (emphasis in the original, interview with BREF writer, no 2)

Conceptualise Law in EU Integration Processes 269 At other times, however, BAT determination processes generated ‘open’ BAT norms. A clear, specific BAT pollution standard never crystallised. Hence, ‘open BAT norms’ are generated when no determination of ‘the best available techniques’ occurs because no specific techniques are abstracted and differentiated from the whole range of possible techniques. I use the term BAT norm to refer to legally binding BAT determinations, such as BAT conditions in IPPC licences, BAT definitions in national statutes implementing the IPPC Directive, as well as BAT definitions in regulations or tertiary rules which bind permitters, such as the various technical instructions (‘Technische Anleitungen’) which flesh out the BAT standard in German environmental law. But I also use the term ‘BAT norm’ for BAT determinations which only have the potential to be legally binding according to the rules of the formal EU and member state legal systems, such as the BAT determinations in EU BREFs and UK BAT national guidance documents. But what—in more concrete terms—is an open BAT norm? Here is an example from the UK case study. The Environment Agency (EA) often inserts so-called improvement conditions into IPPC licences for existing sites. Sometimes these improvement conditions require the operator to collect further information about a particular aspect of his/her installation and to propose to the EA various BAT techniques for preventing or minimising emissions: An improvement condition requires assessment for reduction in emissions of nitrogenoxides, particulates and nitrogendioxide. (extract from UK IPPC licence no 4)

A specific BAT norm—for the limitation of these emissions—would then only be inserted at a later date, once proposals from the operator for the reduction of these emissions had been obtained and various options been assessed. Hence, improvement conditions render BAT norms open because they project BAT determinations into the future. Open BAT norms question the idea of relatively autonomous law, because open norms are not fully abstracted and differentiated from their surrounding contexts. They question the notion of instrumental law, because a focus on a discrete outcome—intended to change operators’ behaviour—is lacking in open BAT norms. Open BAT norms also question the equation of EU law with the formal law ‘in the books’. Variation in open and closed norms shows that implementation practices can be an important source of norm variety. Social actors’ views of what constitutes a norm are therefore another important source of law, potentially different from what the abstracts tests of the formal legal system require for identifying authoritative sources of ‘law’. Variation in open and closed norms, however, matters, not just because it addresses these more theoretical points about the nature of EU law. It

270 Bettina Lange is also interesting because it is an empirically puzzling finding. Open BAT norms appear to be pervasive in the implementation of the IPPC Directive, although participants in BAT determination processes at EU, national and local levels expressed clear expectations that there should be at least some degree of closure in BAT determinations: This sentiment was echoed by France, who (sic) suggested that a BREF without any selection or hierarchy [of techniques] would be pointless. (Official notes of IEF 5th meeting, 18th to 19th February 1999)

Identifying ‘the best available techniques’ in the BREFs was expected to be a process of whittling down a whole range of possible BAT candidates to one or a few specific BAT techniques: From these 200 you go down to about 50. And that means that here on average maybe you have 4 types of techniques for each process. And then my idea will be to challenge those techniques and to try, if it is possible, to really define which is the best one. Yes, the star technique, the BAT. (Interview with BREF writer no 1)

To summarise, variation in open and closed BAT norms is a theoretically interesting and empirically puzzling finding. But how is variation in open and closed norms actually generated?

Variation in open and closed BAT norms as discursive constructions Variation in open and closed BAT norms is generated through discourses. Discourse is central to determining what constitutes ‘the best available techniques’. Written and oral communications and hence language are key for defining BAT. For instance, BAT determinations in the BREFs are the outcome of drafting detailed, sometimes lengthy documents running to several hundred pages. Identifying BAT is achieved through close work on the text of these BREF documents. The strategic use of words and concepts is an integral feature of defining BAT: If the differences of opinion here could be solved by merely changing the words used, an effort should be made to do this. (Official notes of the IEF 7th meeting, 28th–29th February 2000).

The text of the IPPC Directive provides the basic vocabulary for arguments about what is BAT. But participants in BAT determinations also developed a whole range of new terms. Attempts to clarify, distinguish and thus close a BAT definition involved the creation of novel concepts, such as ‘emerging’ and ‘obsolete techniques’. But it was also recognised that there were limits to pinning down the meaning of malleable words.

Conceptualise Law in EU Integration Processes 271 The content of key concepts was subject to negotiation. Hence whether a technique can be considered as BAT depends on whether the label BAT can be made to stick to it as an adequate description. This is subject to a contested process of negotiation. For instance, while an industry associated suggested that ‘dioxin and furan abatement are emerging techniques’ for the operation of electric arc furnaces in the iron and steel industry, the BREF writer stated that ‘dioxin and furan abatement are already existing, for instance in [name of Italian plant] and [name of German plant]’ (extract from EIPPC Bureau background file on the Iron and Steel BREF). If discourse is central to the determination of BAT, it is still necessary to address the question how variation in open and closed BAT norms is discursively generated. The following analysis focuses on open BAT norms. First, open BAT norms are generated by discourse which renders the very concept of BAT open. The way participants in BAT determinations talked about BAT obscures a core conceptual meaning. BAT emerged from EU Technical Working Group and Information Exchange Forum discussions as characterised by a tension between three key dimensions. To begin with, there was no agreement as to whether BAT in the BREFs is merely a description of techniques or has also a prescriptive dimension. Again, how exactly information about techniques was presented in the BREF documents had a bearing on this. Some wording suggested that there had been a clear evaluation of techniques with a view to identifying the best techniques and ascribing a potentially normative force to them: By contrast, terms such as ‘achievable’, ‘expectation’ and ‘aspiration’ expressed a judgement about what was reasonable rather than a statement of fact. In the process of drafting BREFs, the EIPPC Bureau had attempted to identify for each sector the best performance world-wide. (Official notes from 5th IEF Meeting, 18th–19th February 1999)

Other wording indicated that the BREFs merely described various possible techniques, with a determination of BAT firmly being left to permitters in the member states. Moreover, discourse also rendered BAT conceptually open in that there was an unresolved tension between generality and specificity in BAT norms. While some participants in the BREF drafting process suggested that determining BAT requires to give a very specific account of techniques, others argued that only general statements about techniques could be a BAT determination. For instance, some TWG members argued that reference to a bag filter for controlling dust emissions to air from an installation is too specific for a BAT definition in a BREF. They argued that only a general reference to various air pollution abatement measures, including both bag filters and other techniques, such as electric precipitators, could be BAT in a BREF. Finally, the way BAT was talked about in BAT determinations rendered it conceptually open because there was no agreement on whether BAT norms

272 Bettina Lange were to be consistent or flexible. While some argued that BAT definitions should be consistent, for instance between different industrial sectors covered by the IPPC Directive, or between different types of plant within an industrial sector, others advocated BAT to be flexible. Consistency in BAT definitions could mean that previous decisions were taken into account. Flexibility, in contrast, allowed BAT definitions to be adopted to the specific geographical, financial and technical circumstances of an installation. Not just at the EU level, however, could discourses render a BAT concept open. BAT norms could also be open at the local level, in particular through norm differentiation. Norm differentiation captures the further fragmentation of the meaning of the BAT concept through the creative development of new BAT related concepts. For instance, at one UK installation which produced inorganic chemicals, BAT was determined with reference to a new concept, the ‘indicative target’. While ‘indicative targets’ share features with established uses of the BAT standard, they also introduce new elements. ‘Indicative targets’ are set—as BAT standards usually are—with reference to both what the installation can achieve in practice and what UK sector guidance on BAT expects installations in the sector to achieve. But the ‘indicative target’ also adds a new feature to BAT. It introduces some flexibility into the BAT standard by abandoning the idea of an absolute standard. It provides that emissions above the ‘indicative target’ in about 5 per cent of the time do not count as a ‘regulatory’ breach. Instead emissions above the ‘indicative target’ are covered by a self-regulatory regime where the operator him or herself investigates the causes of higher emissions. Second, discourses also generate open BAT norms by providing justifications for them. Discourses thereby stabilise, normalise and legitimise open BAT norms and thus variation in open and closed BAT norms. Justifications for open BAT norms matter in order to rebut perceptions of open BAT norms as incomplete BAT determinations or failures of the BAT determination process. For instance, from a legal perspective it may be argued that member states which employ improvement conditions that postpone BAT determinations for existing sites to a date after 30th October 2007 are in breach of the IPPC Directive. Justifications for open BAT norms are thus important for portraying them as ‘normal’ and routine aspects of BAT determinations in practice. One basic justification for open BAT norms involves to lower the expectations of outcomes in BAT determinations. The lack of a closed BAT norm is thus not an indicator of an incomplete BAT determination process, but simply the expression of what is merely a ‘BAT approach’ or ‘philosophy’: In cooling we have gone one step further, we have tried to describe an approach, a philosophy, because BAT is very difficult to define, it is a very specific thing. If you say this is BAT, you may have BAT for one situation or two, maybe. But for the other hundreds of thousands of situations you have not. So, it is very difficult to say, this is BAT in a horizontal BREF. But you can say there is as BAT

Conceptualise Law in EU Integration Processes 273 approach, to the issue of finding a technique where you can say, well, come on this is BAT. (Interview with BREF writer no 3, emphasis added)

But open BAT norms can also be justified through a political discourse (see also Lange, 2006). They are simply an expression of interest positions. A number of industry associations and some member states expressed an interest in avoiding clear BAT conclusions in the BREFs. Some industry associations and member states argued for flexibility and thus the opportunity to choose between various techniques. They did not want to be tied down to a specific BAT standard. This argument was made particularly strongly by industry associations in relation to existing plants. Here—they suggested—BAT could only be decided on a ‘case by case’ basis: Here, we have to distinguish between two categories of installations: the new installations where the BAT utilisation is possible and the existing ones where the application of BAT must be done, ‘case by case’—either for technological reasons or for economical (sic) reasons. (Extract from EIPPC background file for the BREF on the Iron and Steel Industry)

Some industry associations also argued for open BAT norms in BREFs by advocating broad, rather than specific and potentially more prescriptive ranges of emissions to be associated with BAT techniques. But not just trade associations, also some member states advocated open BAT norms in the EU BREF guidance documents. This provides member states with more scope for choosing their own particular national approach towards implementing the BAT concept. This could help to maintain national cultures of environmental regulation or provide support for an industry sector central to a member state’s economy. Open BAT norms in BREFs were also perceived at times as a more general assertion of member state sovereignty in the EU legal process. For instance, early on in the BREF writing process, Germany challenged attempts by DG Environment to allocate to itself the power to determine BAT and thus to bring about closure of BAT norms at the EU level, in case Technical Working Groups and the IEF found it difficult to achieve consensus.

IV. CONCLUSION: FROM FORMAL, INSTRUMENTAL AND RELATIVELY AUTONOMOUS LAW IN EU INTEGRATION TO VARIATION IN OPEN AND CLOSED NORMS

This chapter has argued that some legal and political scientists’ accounts of EU integration perceive law as formal, instrumental and relatively autonomous. Associated with this is a focus on official legal actors, such as courts, litigants and formal EU supranational institutions when implementation of EU law is discussed. In contrast to this, constructivist and institutionalist perspectives have started to work with a more multi-faceted conception of

274 Bettina Lange normativity in integration processes. ‘Law in action’ research can further contribute to the development of rich conceptions of EU law. It directs attention to a whole range of legal actors—including civil servants in EU committees, engineers and environmental scientists in national regulatory authorities—as crucial to generating ‘EU law in action’. The analysis of the empirical data discussed here questions a core image which underpins formal, instrumental and relatively autonomous conceptions of law. This is the idea that ‘law’ is bounded, clearly distinguishable from its contexts and identifiable through specific content. An analysis of the implementation of the EU IPPC Directive, however, suggests that ‘EU law in action’ involves variation in open and closed norms. Where no final, clear BAT determination is achieved and hence where the BAT standard remains ‘open’ there is no fully formed norm which can be clearly demarcated from its contexts. Variation in open and closed norms also questions an instrumental conception of law in EU integration processes. It seems more difficult to associate open norms with specific functions. An open BAT standard seems to provide only a limited contribution to EU integration, in the sense of a greater degree of harmonisation or uniformity in pollution control standards across the EU. Where BAT determinations remain open it is also questionable whether EU law can be attributed a regulatory function. Open BAT standards may have limited prescriptive impact on the behaviour of social actors. Finally, a conception of law in EU integration which focuses on formal law, ‘EU law in the books’, is too narrow, since implementation practices are another source of norms. EU law in action analysis directs attention away from preconceived constructions of law as projected by the official EU and member state legal systems. It emphasizes the importance of empirical research for addressing conceptual questions about the nature of EU. It asks what type of law is actually generated in practice through EU integration processes. The analysis in this chapter has focused on open BAT norms, in particular on how they are discursively generated and justified.

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Conceptualise Law in EU Integration Processes 275 Burley, A and Mattli, W (1993) ‘Europe Before the Court: A Political Theory of Legal Integration’ 47 (1) International Organization 41–76. Cappelletti, M, Seccombe, M and Weiler J (1986) ‘Integration through Law: Europe and the American Federal Experience: A General Introduction’ in M Cappelletti, M Seccombe and J Weiler (eds), Integration through Law (Berlin, Walter de Gruyter) 3–68. Christiansen, T, Jørgensen, K and Wiener, A (1999) ‘The Social Construction of Europe’ Journal 6 (4) of European Public Policy 528–544. DeBúrca, G (2005) ‘Rethinking Law in Neofunctionalist Theory’ 12 (2) Journal of European Public Policy 310–326. DeBúrca, G and Scott J (eds) (2000) Constitutional Change in the EU: From Uniformity to Flexibility? (Oxford, Hart Publishing). Dehousse, R (2002) ‘Misfits: EU Law and the Transformation of European Governance’ in C Joerges and R Dehousse (eds), Good Governance in Europe’s Integrated Market (Oxford, Oxford University Press) 207–229. Gaja, G , Hay, P and Rotunda, R (1986) ‘Instruments for Legal Integration in the European Community - A Review’ in M Cappelletti, M Seccombe and J Weiler (eds), Integration through Law (Berlin, Walter de Gruyter) 113–160. Garrett, G (1995) ‘The Politics of Legal Integration in the European Union’ International 49 Organization 171–181. Garrett, G, Kelemen, D and Schulz, H (1998) ‘The European Court of Justice, National Governments, and Legal Integration in the European Union’ 52 (1) International Organization 149–176. Haines, F and Gurney, D (2004) ‘The Shadows of the Law: Contemporary Approaches to Regulation and the Problem of Regulatory Conflict’ 25 (4) Law and Policy 353–380. Haltern, U (2004) ‘Integration through Law’ in A Wiener and T Diez (eds), European Integration Theory (Oxford, Oxford University Press) 177–196. Jupille, J, Caporoso, J, Checkel, T and Jeffrey (2003) ‘Introduction: Integrating Institutions, Rationalism, Constructivism and the Study of the EU’ 36 (12) Comparative Political Studies 7–40. Kahn, P (1997) The Reign of Law. Marbury v. Madison and the Construction of America (New Haven, CT and London, Yale University Press). Lange, B (2005) ‘Researching Discourse and Behavior as Elements of the Law in Action’ in R Banakar and M Travers (eds), Theory and Method in Socio-Legal Research (Oxford, Hart Publishing) 175–194. Lange, B (2006) ‘Searching for the Best Available Techniques—Open and Closed Norms in the Implementation of the EU Directive on Integrated Pollution Prevention and Control’ 2 (1) International Journal of Law in Context 67–88. Maher, I (1999) ‘Competition Law and Intellectual Property Rights: Evolving Formalism’ in P Craig and G De Búrca (eds), The Evolution of EU Law (Oxford, Oxford University Press) 597–624. Majone, G (1994) ‘The Rise of the Regulatory State in Europe’ 17 (3) West European Politics 77–101. Mattli, W and Slaughter, A (1998) ‘Revisiting the European Court of Justice’ 52 (1) International Organization 177–209. Moravcsik, A (1995) ‘Liberal Intergovernmentalist Integration: A Rejoinder’ 33 Journal of Common Market Studies 611–628.

276 Bettina Lange Risse-Kappen, T (1996) ‘Explaining the Nature of the Beast: International Relations and Comparative Policy Analysis Meet the EU’ 34 (1) Journal of Common Market Studies 53–80. Rosamund, B (2000) Theories of European Integration (Basingstoke, Palgrave). Schmitter, P (1971) ‘A Revised Theory of Regional Integration’ in L Lindberg and S Scheingold (eds), Regional Integration: Theory and Research (Cambridge, Mass, Harvard University) 232–264. —– (1996) ‘Examining the Present Euro-Polity with the Help of Past Theories’ in G Marks, F Scharpf, P Schmitter and W Streek (eds), Governance in the European Union (London, Sage Publications) 1–14. —– (2004) ‘Neo-Neofunctionalism’ in A Wiener and T Diez (eds), European Integration Theory (Oxford, Oxford University Press) 45–74. Scott, C (2003) ‘Regulation in the Age of Governance: The Rise of the PostRegulatory State’, National Europe Centre Paper, No. 100, 6th of June 2003, ANU at http://www.anu.edu/au/NEC/Scott1.pdf —– (1995) ‘Changing Patterns of European Community Utilities Law and Policy: An Institutional Hypothesis’ in J Shaw and G Moore (eds), New Legal Dynamics of European Union (Oxford, Clarendon Press) 193–215. Scott, J (2000) ‘Flexibility, “Proceduralization”, and Environmental Governance in the EU’ in G DeBurca and J Scott (eds), Constitutional Change in the EU: From Uniformity to Flexibility? (Oxford, Hart Publishing) 259–280. Snyder, F (1990) New Directions in European Community Law (London, Weidenfeld and Nicolson). Stone Sweet, A (2004) The Judicial Construction of Europe (Oxford, Oxford University Press). Teubner, G (1986) ‘After Legal Instrumentalism: Strategic Models of Post-Regulatory Law’, in G Teubner (ed), Dilemmas of Law in the Welfare State (Berlin, Walter de Gruyter) 299–325. Trubek, D, Cottrell, P and Nance, M (2005) ‘“Soft Law”, “Hard Law”, and European Integration: Toward a Theory of Hybridity’ Yean Monnet Working Paper 02/05 at http://eucenter.wisc.edu/OMC/Papers/EUC/trubeketal.pdf Unger, RM (1983) ‘The Critical Legal Studies Movement’ 96 (3) Harvard Law Review 563–675. Weiler, J (1981) ‘The Community System: The Dual Character of Supranationalism’ Yearbook of European Law 267–306. Wiener, A and Diez, T (2004) ‘Introducing the Mosaic of Integration Theory’ in A Wiener and T Diez (eds), European Integration Theory (Oxford, Oxford University Press) 1–21. Wincott, D (2002) ‘A Community of Law? “European Law” and Judicial Politics: The Court of Justice and Beyond’ 35 Government and Opposition 3–26.

C

European Styles of Legal Regulation

10 EU Ways of Governing the Marketing of Pharmaceuticals—A Shift Towards More Integration, Better Consumer Protection and Better Regulation? BÄRBEL DORBECK-JUNG AND MIRJAN OUDE VRIELINK-VAN HEFFEN1

I

n this chapter the European ways of governing the authorisation of pharmaceuticals are described and evaluated. This regulatory system is a particular interesting example of European governance and the emerging European legal culture. In the complex and dynamic multi-level and multi-actor regulatory system related to the authorisation of medicines hard law and soft law, ‘old style’ and ‘new style’ harmonisation and other methods and tools of governance are combined. It seems that the governance structure of this particular regulatory system is based on a powerful approach that may lead to more integration of pharmaceutical markets and better consumer protection. Regarding the European legal culture the changes that took place in this particular regulatory indicate that certain values and principles of good governance are emerging in EU governance. I. INTRODUCTION

In the EU medicinal products are governed by a complex system of multilevel public and private regulation. Drug disasters of the late 1950s like the thalidomide crisis, as well as the globalisation of pharmaceutical markets gave rise to a European regulation system governing medicinal products.2 Since 1965 pharmaceutical industry has been subject to 1 University of Twente, School of Management and Governance, PO Box 217, NL-7500 AE Enschede, The Netherlands ([email protected]). Tilburg University, TSPB, PO Box 90153, NL-5000 LE Tilburg ([email protected]). 2 According to Feick, the Thalidomide scandal marked a regulatory starting point for both the EC and the member states (Feick, 2005: 5). Interestingly, the US regulatory procedures, which had been in existence since 1938 were regarded as a model for other countries.

280 Bärbel Dorbeck-Jung and Mirjan Oude Vrielink-van Heffen European legislation related to the whole process of research, development, testing, pricing, marketing, manufacturing, advertisement and retail (Feick, 2000; 2002; 2005; Kaufer, 1990; Hervey and McHale, 2004; Reich, 1988; Thompson, 1994). To reduce the complexity of our study we focus on one part of this comprehensive regulatory system in which European methods of governance and a European legal culture have evolved. This is the sub-field of the EU regulation regarding the approval of medicinal products for human use. On the basis of the findings of two evaluations the EU reformed this particular regulatory system two years ago. In 2004, the European Parliament and the European Council laid down new Community procedures for the authorisation and supervision of drugs.3 At the same time they amended the Community code relating to medicinal products for human use.4 This important legislative reform was embedded in developments that took place at the level of EU governance policies. In the drug approval legislation of 2004 certain modes of the ‘new’ EU governance approach were reflected5 and certain principles of good governance were incorporated.6 Hence, this part of the EU law is a particular interesting example of the evolving European governance styles7 and governance culture.8 The recent changes of the European drug approval system are driven by the aims of strengthening the effective operation of the internal market in the pharmaceutical sector, as well as improving the quality, safety and efficacy of the medicinal products concerned. In this chapter we discuss

3 Regulation (EC) No 726/2004 of 31 March 2004 (OJ L 136/1), which replaced Regulation 2309/93. To reduce the complexity of our investigation, supervision regulation is excluded. 4 Directive 2004/27/EC of March 2004 (OJ L 136/34), which amended Directive 2001/83/ EC. 5 See the Communication of the Commission, Action plan ‘Simplifying and improving the regulatory environment’, COM (2202) 278 final, 5 June 2002. In essence, the new regulation policy supports methods that follow a less top-down approach and complements its policy tools with other non-binding coordination mechanisms (Senden, 2005: 2). 6 See, White Paper on European Governance, COM (2001) 428. Additionally, European drug regulation has been much more related to its foreign counterparts in the United States and Japan than in the past (Vogel, 1998). In the International Conference on Harmonization of Technical Requirements for the Registration of Pharmaceutical Products (ICH) the drug approval requirements of these countries are harmonised. 7 In Social Science governance styles are regarded as established, thought-out ways of human conduction that are attracted at particular goals. Regulatory styles refer to routine choice behaviour (Van Waarden, 1996: 42). In this contribution we focus on the institutional basis of governance styles. In this context Zweigert and Kötzes ideas on juristic styles are interesting. These legal comparatists suggest that the juristic style may be ascertained from the historical background and development of the system, its characteristic (typical) mode of thought, its distinctive institutions, the types of legal sources; and its ideology (Zweigert and Kötz, 1992). 8 The notion of governance culture refers to learned behaviour, attitudes and values individuals in some society hold with regard to regulation and the regulatory system, as well as institutionalised forms of individual responses to regulation (see, Friedman, 1994; Gessner, 1994). This contribution focuses on the institutionalised basis of the values of good governance.

EU Ways of Governing the Marketing of Pharmaceuticals 281 the ways through which the EU seeks to realise these ambitious goals. Our central question is this: How can the present European ways of governing drug authorisation be evaluated according to the ideals of integration of markets, consumer protection and better regulation the EU aspires?

To answer this question we compare the present EU regulatory system relating to drug approval (‘new regulatory system’) with the one that was effective from 1993 to 2004 (‘old regulatory system’9). With special concern to the theme of this book the comparison refers to European methods and styles of governance, as well as to certain requirements of good governance as a part of the emerging legal culture of the EU. The next section deals with the rationales of EU governance policy related to pharmaceuticals. First, we give a brief summary of the objectives of the EU policy on better regulation. Next, we deal with the particular governance methods in health care the EU follows to regulate the approval of pharmaceuticals. In a third step we briefly discuss why the EU established a regulatory system related to the approval of medicinal products. At the end of this section an overview of the evolution of this regulatory system is given. In the third section we develop evaluation frames that serve to answer the central question of this contribution. On the basis of these frames the changes that took place in the EU drugs approval system are described and analysed. The analysis enables us to draw theoretical conclusions regarding the question whether the changes in this regulatory system can be seen as shifts towards more Europeanisation, better consumer protection and better regulation. Finally we reflect on the lessons we can learn from our investigation with respect to European governance styles and the emerging governance culture.

II. EU GOVERNANCE POLICY RELATED TO PHARMACEUTICALS

Presently the notion of governance is very popular in political, social and economic science.10 This debate has also spread into EU research (eg Héritier, 2003; Knill and Lenschow, 2003, Schuppert, 2006). According to Treib, Bähr and Falkner (2005: 4), the scientific discussion shares a common concern for the relationship between state intervention and societal autonomy. In this chapter we focus on the relationship between the intervention of particular European institutions and national regulation 9 Information about the EC marketing approval regulation concerning medicinal products for human use before 1993 can be found in Feick’s investigation (see, Feick, 2005: 8). 10 For an overview see Frederiksson and Smith, 2003; Kersbergen and Van Waarden, 2004; Kooiman, 2003; Mayntz, 2004; Pierre and Peters, 2000).

282 Bärbel Dorbeck-Jung and Mirjan Oude Vrielink-van Heffen autonomy. Following Benz we regard governance as steering and coordination of interdependent (usually collective) actors based on institutionalised rule systems (Benz, 2004). One of the advantages of this view on regulation is that it broadens the focus of the legal investigation, a perspective the White Paper on European governance has opted for (White Paper, 2001).11 In this view, governance focuses on the interaction between legal rules and social rules that though not legally binding have certain legal effects and may produce effects on the working of law (‘soft law’12).

EU governance policy In the last years of the twentieth century the European Commission was strongly aware of legitimacy problems with its regulation policies. To increase the legitimacy of the Union’s work the Commission launched a White Paper on European Governance at the beginning of the twenty-first century. The Commission has realised that the Union’s credibility will be judged by its ability to add value to national policies and address people’s concerns more effectively at European and global level without violating the principles of subsidiarity and proportionality. The White Paper identifies the tools that are needed to establish more coherence in the Union’s policies. It emphasises the need for EU action to be balanced and in proportion to the policy objectives pursued. With this Paper the Commission aims at renewing the Community method by following a less top-down approach and complementing its policy tools more effectively with nonlegislative instruments. The proposals for change are based on the insight that the EU regulation process must be more open, easier to follow and to understand and there must be a stronger interaction with regional and local governments and civil society. In addition to better involvement and more openness, the Commission aims at improving the quality of the Union’s policies, regulation and delivery. In this respect one intention is to find ways of speeding up the legislative process, simplifying legislation and increase the effectiveness of legislation. Another aspiration is to find the right mix between imposing a uniform approach when and where it is needed and 11 Following Black, we regard regulation as ‘intentional attempts to control or order people or states of affairs (albeit mindful of the unintended consequences of those intentions)’ (Black, 2002). Public regulation refers to sustained and focused control exercised by a public agency, on the basis of a legislative mandate, over activities that are generally regarded as desirable to society (Selznick, 1985: 363). 12 See Senden, 2004: 111–113; 2005: 15. Senden distinguishes between three categories of soft law. These are: 1. preparatory and informative instruments, 2. interpretative and decisional instruments, and 3. steering instruments. However, soft coordination refers also to non-hierarchical instruments like partnership (‘co-regulation’), peer pressures, social dialogue, and the ‘open method of coordination’ that are not covered by soft law. It involves a large range of non-hierarchical tools.

EU Ways of Governing the Marketing of Pharmaceuticals 283 allowing greater flexibility in the way that rules are implemented on the ground. As the Commission put it: ‘The Community method guarantees both the diversity and effectiveness of the Union. In ensures the fair treatment of all Member states from the largest to the smallest. It provides a means to arbitrate between different interests.’13 Regarding these multilateral goals it is not surprising that the White Paper purports a broad view on governance. According to the Commission, governance means ‘rules, processes and behaviour that affect the way in which powers are exercised at European level, particularly as regards openness, participation, accountability, effectiveness and coherence’.14 As a follow-up of the White Paper the Commission has taken much action in the areas of simplifying and improving the regulatory environment, promoting a culture of dialogue and participation and systematising impact assessment of legislation.15 Below we discuss the EU principles of good governance in more detail. EU governance methods in health care In the different policy fields the EU ways of governance vary. In the field of health care two general approaches are applied to support the integration of markets and the protection of consumers’ health and safety: traditional regulation and new governance.16 These two approaches differ significantly regarding the view on how law works. Moreover, they purport different methods of coordination. Traditional regulation strongly relies on mandatory rules to provide an integrated regulatory system in cases of significant lack of ‘fit’ or trust between national regulatory systems. Within this approach methods of ‘old style’ harmonisation are applied. It is brought about by detailed regulatory EU norms that are tied to enforcement and sanctions issued by legislatures and courts. Once the EU norms are adopted, national authorities are precluded from promulgating provisions in the field, even if these national norms provide greater health and safety protection. As a consequence, existing national legislation is directly deregulated. New governance draws attention to more non-legal methods of coordination. The methods of ‘new style’ harmonisation establish norms and achieve compliance by encouraging participation of stakeholders and requiring transparency and accountability of those participating in decision-making processes. In these methods of regulation government still holds a strong 13

See, note 6 above. White Paper, note 1 (see above, note 6). 15 This action is based on a number of Communications, plans and reports. An overview is provided on http://europa.eu.int/comm/governance/governance eu/law making en.htm. 16 See Hervey and McHale (2004: 43). Hervey and McHale speak of different methods of governance. These are mandatory regulation, harmonisation ‘old style’, harmonisation ‘new style’, ‘soft’ coordination and financial incentives. It has to be noted that the two governance approaches are seen as ‘ideal types’. Empirically, hybrid forms may be found. 14

284 Bärbel Dorbeck-Jung and Mirjan Oude Vrielink-van Heffen position, although a different one. Governmental intervention is required, for private actors cannot be relied on to give appropriate weight to public interests over private ones. But the government no longer is acting on the basis of command and control, but is taking the role of coordinator and facilitator of social action. According to the White Paper on European governance, the new approach seeks to find the right mix between imposing a uniform approach when and where it is needed and allowing greater flexibility in the way that rules are implemented on the ground. New style harmonisation allows a mixture of national and EU norms. It is closely related to instruments of soft law.17 On the EU level only minimum standards are established to protect essential health and safety interests. For example, member states and non-state corporate actors participate in the elaboration of ‘European industry standards’. Through a mechanism of mutual recognition member states can set higher standards at a national level, but must accept lower standards applied by other states as long as these standards meet the EU minimum requirements. In the ‘new approach’ to harmonisation deregulation appears to take place rather incrementally, as a consequence of the member states’ mutual recognition of certain standards.18 In sum we conclude that the EU approaches of traditional regulation and new governance imply old and new style harmonisation, as well as direct and incremental deregulation at the national level. Rationales for regulating drug approval The many types of public regulation dealing with drug approval can be assigned to the categories of economic or social regulation.19 The primary rationale for economic regulation of pharmaceuticals relates to market failures or to deficiencies in market coordination (Hancher and Moran, 1989). According to economists, market failures, such as failure of competition, under-provision of public goods and information failures, occur due to actors’ self-seeking behaviour and lack of incentives to act cooperatively (Hahn, 2000; Ogus, 1994; Sunstein 1990). A primary rationale for social regulation is that individual companies may not take responsibility for the full social cost of their actions without government intervention. With regard to public regulation of the marketing of pharmaceuticals the rationales stem 17

See note 12. In the European approach deregulation involves the reduction or removal of national and European legislation. With respect to national legislation effective deregulatory EU law are the EC Treaty provisions concerning free movement of goods and services (see Article 95 EC Treaty). 19 Hahn defines these categories as follows (2000: 7): ‘Economic regulation refers to restrictions on prices, quantity, entry, and exit for specific industries. Social regulation refers to regulations ostensibly aimed at correcting market imperfections that affect a wide array of industries.’ 18

EU Ways of Governing the Marketing of Pharmaceuticals 285 from the information asymmetries. The efficacy and safety of drugs strongly depend on scientific information and expertise. The direct consumer or patient and even his professional intermediaries, doctors and pharmacists, are generally less well informed about product-qualities than the producer. Without some sort of government intervention producers of pharmaceuticals will not fully inform stakeholders about their products. Public productoriented risk regulation can be understood as a reaction to these information asymmetries (Feick, 2005: 4). Another rationale for public regulation exists when adverse medical reactions lead to subsequent medical costs that can cause a high welfare burden. Facing these imperfections of pharmaceuticals markets one function of public regulation is to provide for the safety, quality and efficacy of drugs through reducing uncertainty and risk and creating trust (see Van Waarden, 1996: 4). Another function refers to the public good of private ownership of productive property. This is the facilitating function of public regulation that provides incentives for innovation and optimal functioning of drug markets. These two functions of public regulation are mirrored in the various European measures of hard and soft law. For example, the preamble of the first Directive of the European Council on medicinal products states that the ‘primary purpose … must be to safeguard public health’, adding that this objective has to be achieved without hindering ‘the development of the pharmaceutical industry or trade in medicinal products within the Community’.20 Regarding the purposes of European drug regulation, however, we must keep in mind that the primary goal is to strengthen the EU region as a competitive research, development and production site through guaranteeing free trade among member states (Liikanen, 2002; Cecchini et al, 1988). In the words of the Pharmaceuticals Unit of the Enterprise Directorate-General, regulatory measures are supposed to ensure a high level of public health protection, to establish a Single Market for medicinal products and to provide a stable and predictable environment for pharmaceutical innovation (Feick, 2005: 6). As medicinal products are goods the EU-Treaty goal of a common or single market applies. According to EU Law, no medicinal product may be placed on the market within the Community unless a marketing authorisation has been granted. The next section deals with the EU approval of pharmaceuticals and the ways in which this regulatory system has evolved over time. Evolution of the EU regulatory system Since the 1960s, EU drug regulation has moved from legal harmonisation, with the expectation of mutual recognition, to a complicated system that 20

Directive 65/65/EEC of 1965.

286 Bärbel Dorbeck-Jung and Mirjan Oude Vrielink-van Heffen combines national regulatory procedures and mutual recognition with direct EU-level regulation (Hart and Reich, 1990; Abraham and Lewis, 2000; Feick, 2002, 2005;21 Broscheid and Feick, 2005). Until 1993, Europeanisation was based on incremental harmonisation of national legislatures. In that approach the implementation of the EU regulation mainly was left to the member states. In 1993, fundamental institutional changes were initiated through two new authorisation procedures that replaced the existing procedures. These changes were based on a Council Regulation that established a Centralised Procedure (CP).22 In the opinion of the EU it was necessary to create a centralised authorisation procedure that is compulsory for hightechnology medicinal products, particularly those resulting from biotechnological processes, in order to maintain the high level of scientific evaluation of these products in the EU. Other aims were: to preserve the confidence of patients and the medical professions in the evaluation and to ensure the effective operation of the internal market in the pharmaceutical sector. In this procedure regulatory decisions are taken at the European level and for the whole Community (EU-wide authorisations). The second new authorisation procedure, the Mutual Recognition Procedure or Decentralised Procedure (MRP/ DP),23 was laid down in a Directive.24 It is applicable to all drugs introduced in more than one member state for which the Centralised Procedures is not obligatory. This procedure is still nationally based, but includes the option of centralised binding arbitration in case of diverging national assessments. In 1998, parallel national applications were completely replaced by the MRP/ DP. The institutional changes of 1993 involved the creation of the European Agency for the Evaluation of Medicinal Products (EMEA) for coordinating the evaluation of the application dossiers in the Centralised Procedure and, eventually guiding the binding supra-national arbitration procedure in the Mutual Recognition/Decentralised Procedure.25 The 1993 legislation provided for a report by the Commission on the experiences with this Regulation six years after the new procedures had come into effect. On the basis of the evaluation reports the Commission launched a 21 On page 8 Feick gives an overview of the major regulatory steps in EU marketing approval regulation concerning medicinal products for human use. 22 Regulation 2309/93, OJ L 214. 23 The Mutual Recognition Procedure is applied when a drug has already been authorised in one or more member states and approval is sought in one or more additional member states. In the Decentralised Procedure the medicinal product has not yet received authorisation in any member state. Since the decision-making processes are identical in both procedures, they are treated as one category. 24 Directive 93/39/EEC. The procedures went into effect in 1995. 25 With regard to drug control the information system ‘pharmacovigilance’ has been set up. EU law obliges member states to operate an information system to ensure the adoption of appropriate and harmonised decisions concerning the medicinal products authorised within the Community, having regard to information obtained about adverse reactions to medicinal product under normal conditions of use. In the centralised procedure the EMA is operating pharmacovigilance.

EU Ways of Governing the Marketing of Pharmaceuticals 287 broad review process, which resulted in new legislation in 2004.26 Regulation 726/2004 enlarged the scope of the Centralised Procedure to new active substances for four medical indications.27 Furthermore, it obliged the Commission to accelerate its administrative procedures. In addition, some organisational changes were introduced (among which a change of the name of the European Agency from EMEA to European Medicines Agency—EMA). The most important structural change in the regulation reform was the introduction of an obligation to start binding arbitration at the central European level if mutual recognition fails in the Mutual Recognition Procedure or Decentralised Procedure.28 Another structural change was the establishment of a coordination group with the task of settling disagreements of member states in this procedure. Table 1 provides an overview of the major regulatory steps in the old and new EU regulatory system. Table 1 Major regulatory steps in the old and new EU regulatory system related to the approval of medicinal products 1993

- Introduction of the mandatory Centralised Procedure for biotechnologybased medicinal products - Introduction of the Mutual Recognition Procedure or Decentralised Procedure for parallel national application (EU arbitration was optional) - Establishment of the European Agency EMEA

1998

Complete replacement of parallel national applications by the MRP/DP

2004

- Amendment of the Centralised Procedure (scope, deadlines and organisational changes), changes of the names of the European Agency and its Scientific Committee29 - Amendment of MRP/DP (EU arbitration is obliged, establishes Coordination Group)

26 The centralised procedure was set up by regulation 2309/93/EC (OJ 1993 L 214). Regulation 2309/93 was replaced by Regulation 726/2004 of 31 March 2004 (OJ L 136/1). In 2001 the European Commission issued Directive 2001/83/EC on the Community Code relating to medicinal products for human use that was based on Article 95 of the Treaty establishing the European Union (OJ L-311/67). Recently, the Commission adopted Directive 2004/27/EC (OJ L 136/34), which amended Directive 2001/83/EC. The amendments were formulated on the base of the findings of the evaluation of the marketing procedures that were published in 2001 (European Commission, DG Enterprise 2001). 27 According to the Annex to Regulation 726/2004, certain biotechnological products, medicinal products for human use for which the therapeutic indication is the treatment of certain diseases, as well as orphan medicinal products are to be authorised by the Community. Optional access to the centralised procedure is provided for medicinal products, although not belonging to the before mentioned categories, are nevertheless therapeutically innovative. 28 The main reason of this institutional change was that arbitration occurred only in less than four per cent of the cases where national evaluations differed (Feick, 2002: 23–25). Because arbitration was voluntary the applying pharmaceutical entrepreneurs tended to withdraw their application for approval from the countries that were not willing to engage in mutual recognition. 29 The name of the Scientific Committee changed from Committee for Proprietary Medicinal Products (CPMP) to Committee for Medicinal Products for Human Use (CMPH).

288 Bärbel Dorbeck-Jung and Mirjan Oude Vrielink-van Heffen Presently, there are two European approval procedures available together with the national procedures that are followed in cases of nonmandatory EU regulation in which the pharmaceutical entrepreneur does not seek parallel national approval. In the fourth section the structural changes regarding the two EU procedures will be explored in more detail.

III. FRAMES OF ANALYSIS

In this contribution we seek answers to the question whether the changes in the regulatory system related to drugs approval imply shifts towards increasing Europeanisation of pharmaceutical markets, better consumer protection and better regulation. In this section the evaluation frames with regard to these particular rationales of EU governance are developed. Indicators for ‘Europeanisation’ Understood as increasing control of authorisation processes and decisions by European institutions the phenomenon of Europeanisation refers to supranational governance competences, the ways European institutions make use of these competences, as well as to the room European regulation leaves for national implementation control.30 Specifying those aspects we arrive at the following indicators of Europeanisation: 1. European (supranational) competence to establish legally binding rules The constitutional (treaty) basis of the decision-making process determines the degree to which law-making is dominated by intergovernmental or supranational regulation. It is likely that a broad competence of law-making of European institutions facilitates Europeanisation. 2. The ways European institutions use this competence Europeanisation depends on the level of obligation supranational regulation involves (Knill and Lenschow, 2003). Governance methods with a high level of obligation tend to foster European control of regulation processes,

30 The features of Europeanisation are described by Broscheid and Feick (2005: 4). We rely also on the conceptualisation of Treib, Bähr and Falkner (2005). It must be noted that Europeanisation can take place at different levels. For example, harmonisation of national legislation may result in Europeanisation at the national level, while a transfer of implementation power from the national to the European level may lead to Europeanisation at the European level.

EU Ways of Governing the Marketing of Pharmaceuticals 289 while a low level of obligation leaves more room for the control of the member states. 3. Implementation control The control of European-level actors over implementing decisions is regarded as an important aspect of Europeanisation. It determines that community rules are in fact executed in a uniform manner (or at least in a manner controlled by an EU-level authority). The more the implementation of European regulation is executed by European institutions the more European control is fostered. 4. Ways of implementation Europeanisation depends also on the level of influence European ways of implementation leave to national authorities. First, the influence of member states is related to the degree of their autonomy in the implementation process. Ways of implementation that leave hardly any room to national authorities tend to foster Europeanisation. Second, the influence of member states refers to the institutionalisation of implementation at the European level. If European agencies are independent and staffing decisions are made through supranational processes, member states’ influence on implementation decisions tends to be limited.

Requirements of consumer protection In the regulatory system related to medicinal products for human use consumer protection refers to drug safety and efficacy. Evaluation criteria regarding safeguards of consumer protection can be derived from ideas of risk management policies. Risk management refers to the detection and minimisation of risks. In 2005, the Heads of the European Medicines Agencies formulated an European risk strategy that aims to contribute to the safe and effective use of medicines and to the overall promotion and protection of public health.31 In their risk management policy, the European Agencies state that consumer protection against harmful effects of pharmaceuticals requires high quality scientific expertise, as well as good regulatory practice and good government. To reach an adequate level of safety, scientists have to prove a drug can safely be introduced on the market. Moreover, the acclaimed benefits of the drug must outweigh known risks. The European risk management strategy includes various

31 See the Report of the ad hoc working group progress on implementation of the European risk management strategy (ERMS 11/05/05).

290 Bärbel Dorbeck-Jung and Mirjan Oude Vrielink-van Heffen tools to detect, assess, minimise and communicate risks. These are: an advanced reporting system, intensive monitoring, peer review, risk management plans provided by pharmaceutical companies and a Code of Conduct which should facilitate communication of risks.32 According to the Heads of the European Medicines Agencies, by means of these tools risk of releasing pharmaceuticals that may prove to be harmful is reduced to a minimum.33 In the relevant scientific literature a distinct definition of risks, high level evaluation standards, competent evaluators who have a high quality scientific expertise at their disposal, and a fast withdrawal of the drug in cases of serious adverse reactions are regarded as basic requirements of risk management regarding the marketing of drugs. With respect to the approval of medicinal products a high level of risk assessment and competent evaluators are important requirements of consumer protection (Abraham and Lewis, 2000: 115; see Vos, 1999).

Requirements of good governance According to the White Paper on European Governance, the principles of openness, participation, accountability, effectiveness and coherence encompass important requirements of good governance (White Paper, 2001: 10). Regarding the EU regulatory systems related to medicinal products openness means that all the EU institutions that are involved in the approval and surveillance of drugs should actively communicate about what they do and the decisions they take. They should use language that is accessible and understandable for the general public. With respect to drug regulation the access to information on the effects of drugs is an important aspect of the principle of openness. Participation means that all stakeholders (including patients, doctors and producers) are involved

32 According to the policy documents, these instruments are increasingly used with a proactive approach towards the identification and handling of safety concerns in all stages of the regulatory process. These policy programmes can be regarded as an instrument of soft coordination. 33 In view of the increasing demands from patients and the general public for the availability of safe and effective medicines, the Heads of European Medicines Agencies emphasise ‘that the concept of “zero risk” does not apply to medicinal products. Even with the best knowledge of medicines at the moment of licensing, adverse drug reactions which were not predictable or detectable in the pre-authorisation stage will occur post-licensing when medicines are increasingly used in real life situations’ (see, ERMS 11/05/05, p 3). Here, the European Agencies take a same stand towards safety as Paracelsus who stated more than four hundred years ago that there is no drug that is harmless and that dose alone determines that the drug is not a poison (see Kaufer, 1990: 171). As risks refer to the active ingredients, as well as to the solvents and excipients of drugs, detection and assessment is extremely difficult. Adverse reactions may also be caused by the interplay of other drugs patients take concurrently, and by patients who do not comply strictly to the physician’s of pharmacist’s instructions.

EU Ways of Governing the Marketing of Pharmaceuticals 291 throughout the policy chain—from conception to implementation. Since producers normally participate in the decision-making on drug marketing the current focus of good governance lies on the participation of patients. In this respect the EU consumer model implies that patients are enabled to exercise their own choices. Effective participation of patients requires representation in the relevant authorisation bodies, as well as access to the relevant information. Accountability is closely related to the ideals of openness. Both principles require transparency of decision-making. Accountability calls for clear formulation and adequate distribution of the actors’ responsibilities. To prevent regulatory capture impartiality and independence of decision-makers is required. Effectiveness means that the EU regulatory system related to medicinal products must achieve the objectives of safety, efficacy and quality of drugs without too many undesired side-effects. Policies and action that aim at realising these objectives must be coherent. Coherence is fostered by stability and continuity of the regulatory system. According the White Paper, the application of these five principles reinforces those of proportionality and subsidiarity. In our case this means that the choice of governance instruments and the level at which regulatory action is taken must be in proportion to the objectives of drug safety, quality and efficacy. In the case of pharmaceutical regulation the discussion on good governance focuses mainly on aspects of accountability and patients’ participation (Abraham and Lewis, 2000; Feick, 2005; Hervey and McHale, 2004). This is why our analysis concentrates on the requirements of these two principles. In sum, our analysis of the changes within the EU regulatory system related to the approval of medicinal products for human use is based on the aspects and criteria that are shown in table 2.

Table 2 Frames of analysis Aspects of… Europeanisation of drug regulation Criteria

Consumer protection

Good governance

- scope of EU legal competence - adequate risk - participation patients management - level of obligation in EU regulation - accountability - level of - scope of EU implementation of decisionassessment control makers standards - degree of autonomy of national - competence implementation authorities evaluators - degree of influence of national authorities on EU implementation decisions

292 Bärbel Dorbeck-Jung and Mirjan Oude Vrielink-van Heffen IV. STRUCTURAL CHANGES IN THE EU REGULATORY SYSTEM RELATED TO THE APPROVAL OF PHARMACEUTICALS

Europeanisation Legal competence of the EU, binding character of regulation Drug regulation is an important subject of the public health field in which the Community competence for harmonising measures generally is excluded. However, as medicinal products are goods the EU Treaty goal of a common or single market applies. In its pharmaceuticals regulation the EU relies on the legal provisions for the completion of the common and single internal market.34 This legal basis is also used for EU measures of consumer protection related to pharmaceuticals (Hervey and MacHale, 2004). With regard to the approval of pharmaceuticals the EU still mainly uses the traditional method of mandatory regulation in the context of a governance approach that combines ‘old style’ and ‘new style’ harmonisation. In this policy field the EU has established a large body of hard and soft law which increased in the new regulatory system.35 Instruments are: regulations, directives, guidelines, communications, policy documents and codes of conduct. In order to ensure the enforcement of certain obligations connected with marketing authorisations, EU law empowers the competent authorities to impose financial penalties on the holders of marketing authorisations. In the old regulatory system the competence was laid at the national level, whereas now the Commission is authorised to impose these sanctions. Scope and ways of implementation Under the centralised procedure an authorisation regarding certain biotechnological and innovative drugs is given by the European Medicines Agency (EMA). As an agency of the EU the EMA assists the EU institutions with the scientific and technical aspects of pharmaceutical markets. The EMA Management Board is comprised of representatives from the Commission, Parliament, each member state and, quite recently, two representatives from patient organisations. The operational strand of the EMA is its scientific committees. In the EU procedures for authorisation of pharmaceuticals the Committee for Medicinal Products for Human Use (CMPH) is a key actor.36 The exclusive responsibility for preparing the Agency’s opinions on all questions concerning pharmaceuticals for human use is vested in this Committee. An applicant who seeks marketing authorisation for a new

34

Articles 94, 95, 152 (4)(b) EC. The legal provisions are compounded within a handbook of nine volumes. 36 The CMPH now has a total of 32 members, including three members of the EEA-EFTA States (Iceland, Liechtenstein and Norway). 35

EU Ways of Governing the Marketing of Pharmaceuticals 293 product that falls within the scope of the centralised procedure makes his application directly to the EMA. Then the CMPH gives an opinion within a certain period of receipt of the application. The EMA must then forward its decision to the Commission. After several internal consultations the Commission (DG Enterprise and the Information Society) takes a final decision regarding the marketing of the new product. A product licence granted under the centralised procedure is valid in all member states, and the product is entered on the Community Register of Medical Products. The Mutual Recognition Procedure (MRP) (or the Decentralised Procedure-DP) has been compulsory for all new pharmaceutical products to be marketed in a member state. A producer who has obtained approval in one member state (the ‘Reference Member State’) may seek approval in another member state (the ‘Concerned Member State’). The Reference Member State is required to provide an assessment report for the relevant product. The Concerned Member State must make a decision on approval within a certain period. The approval may be refused only on grounds of risk to public health. If the Concerned Member is minded to refuse, the matter is submitted to the CMPH for arbitration. The CMPH opinion then is forwarded to the Commission who makes the final decision. The Commission’s decision is binding on the member states. If there is a serious disagreement among member states, the matter is resolved by the Council. Influence of national authorities Influence of national authorities on the implementation of the EU procedures is structurally based on their membership in the relevant EU evaluation and coordination institutions. In both regulatory systems member states are authorised to transmit to the EMA the names of national experts with proven experience in the evaluation of medicinal products who would be available to serve on working parties or scientific advisory groups. With regard to the Agency’s Management and Scientific Committee the legislative reform changed the representation from each national authority from two to one representative in order to accommodate the enlargement of the EU. Furthermore, in the new regulatory system the competent national authorities are legally obliged to monitor the scientific level and independence of the evaluation carried out and to facilitate the activities of nominated committee members and experts. However, any instruction given by member states to committee members and experts is prohibited if it is incompatible with the tasks of the Agency. One of the tasks of the national representatives is to ensure the coordination between the tasks of the Agency, and the work of the competent national authorities. As concerns decision-making in the EMA, legal provisions state that the aim is to achieve consensus. In the new regulatory system the emphasis on consensus and early settlement of disagreements has increased. In the

294 Bärbel Dorbeck-Jung and Mirjan Oude Vrielink-van Heffen amended MRP/DP procedures a Coordination Group has been established to examine any question relating to marketing authorisation in two or more member states. This Group is called in when a member state cannot approve the assessment report of the reference member state. It is composed of one representative per member state. According to Directive 27/2004, all members of the coordination group are required to use their best endeavours to reach agreement on the action to be taken. Major changes As we mentioned above, the scope of the EU competence has been enlarged in the new regulatory system with regard to the Centralised Procedure. The scope of the EU implementation control increased because of the ‘new’ obligation to start binding arbitration at the central European level, if mutual recognition fails in the Mutual Recognition Procedure or Decentralised Procedure. In the old regulatory system arbitration was voluntary. With regard to the influence of national authorities the national representatives in the EMA changed from two to one. Another change refers to the coordination group that has been set up according to Directive 27/2004.

Consumer protection Level of assessment standards In the relevant EU law the level of the assessment of risks of medicinal products is subject of various legal provisions. The principle is that authorisation decisions should be taken on the basis of the objective scientific criteria of quality, safety and efficacy of the medicinal product concerned, to the exclusion of economic and other considerations. In exceptional circumstances the authorisation may be granted subject to a requirement for the applicant to introduce specific safety procedures.37 In the regulatory system the terminology regarding the level of assessment standards slightly changed from ‘best possible standards’ (old system) to ‘highest possible standards’ (new system). EU legislation, however, does not specify this terminology. It deals only with a risk-benefit balance. In this regard the new regulatory system stipulates that the criteria of quality, safety and efficacy should enable the risk-benefit balance of all medicinal products to be assessed both when they are placed on the market and at any other time the competent authority deems this appropriate. In the new Directive (27/2004) risk-benefit balance is defined as ‘an evaluation

37

Article 14(8) Regulation 726/2004.

EU Ways of Governing the Marketing of Pharmaceuticals 295 of the positive therapeutic effects of the medicinal product in relation to the risks’.38 In the approval procedure risk-benefit analysis is made on the basis of particulars or documents provided by the applicant. Marketing authorisation is refused if the risk-benefit balance is not considered to be favourable; or if its therapeutic efficacy is insufficiently substantiated by the applicant. With regard to potential serious risks to public health the new Directive has obliged the Commission to adopt particular guidelines.39 Competent evaluators An authorisation decision is based on a risk evaluation procedure, in which scientific expertise of national and international experts are involved. According to EU legislation, the EMA is obliged to provide the ‘best possible scientific advice’ within the approval procedure. This means that the Agency must select competent members within its scientific committees and working groups. Members and alternates of the EMA are selected for their role and experience in the evaluation of medicinal products. According to both regulatory systems, member states transmit to the Agency the names of national experts with proven experience in the evaluation of medicinal products who would be available to serve the Agency. In the new regulatory systems measures are taken to improve the quality of scientific opinions of the EMA’s scientific committees. Now the EMA is entitled to delegate some of the evaluation duties to standing working parties open to experts from the scientific world appointed for this purpose. Experts are accredited to ensure the competence of the evaluators. The Agency itself is legally obliged to keep an up-to-date list of accredited experts. Furthermore, the new legislation stresses that scientific expertise must be constantly renewed. Though the expertise of national authorities and inspectors primarily is a matter of national concern, Regulation 726/2004 states that national inspectors must possess the appropriate qualifications.40 Their surveillance reports are made available to the Commission, the member states and the CMPH. Major changes With regard to risk management changes in the regulatory system mainly concern the professionalisation of risk assessment. Measures have been taken to ensure that the best European experts are available to evaluate the risks and benefits of medicinal products. Important measures concern the

38 39 40

See (23)(i) Directive 27/2004. See (26) Article 29, section 2 Directive 27/2004. See Regulation 726/2004.

296 Bärbel Dorbeck-Jung and Mirjan Oude Vrielink-van Heffen enlargement of the EMA’s scientific committees’ field of activity, and the modernisation of their operating methods and scientific database.41 Better regulation Participation of patients Effective participation of patients requires representation in the EMA, as well as access to relevant information on pharmaceuticals. In the old regulatory system there was hardly any participation of patients’ organisations. In the new system the situation has changed. To begin with, the new EU Regulation regarding the authorisation of medicinal products provides that two representatives of patients’ organisations shall be members of the Management Board of the European Medicine’s Agency. This Regulation also generally stresses the need for adequate involvement of civil society, and with particular reference to patients’ representatives. Another relevant measure of soft law was taken in 2005. In April 2005 the European Commission (DG Health and Consumer Protection) published the Luxembourg Declaration on Patient Safety in the health sector.42 This Declaration recommends that EU institutions establish an EU forum with participation of relevant stakeholders. One of the aims of this forum is to reach common understanding on patient safety issues. Regarding the patients’ access to relevant information, some provisions have been laid down in the new regulatory system. In the old regulatory system the EU information system pharmacovigilance was not accessible to patients.43 In this system information about misuse, serious abuse and risks of the relevant medicinal products over time is registered and communicated.44 41 Minor changes concern the standards of risk evaluation. In the new legislation the terminology of risk-benefit balance has been specified. 42 See website of the EMA (http://www.emea.eu.int/pdfs/human/patientgroup). 43 This system has been set up in the 1970s to collect useful information in the surveillance, and to evaluate such information scientifically. For products authorised under the centralised procedure, the EMA is charged with the operation of pharmacovigilance. Member states and pharmaceutical companies are required to convey immediately all suspected serious adverse reactions occurring within their territory to the EMA. The EMA then informs all the authorities of other national pharmacovigilance systems. In cases of a potential serious public health risk information is directly conveyed to the CMPH, which then advises the Commission, whose final decision is binding on all member states in which the product is marketed. For pharmaceuticals approved under the mutual recognition/decentralised procedure, the EMA is also given an important role. The CMPH is required to give opinions in situations where the marketing of a medicinal product originally authorised in more than one member state is suspended in one of those member states, due to information coming to light through pharmacovigilance procedures. 44 To get insights into the severity of risks legal provisions make a distinction between ‘adverse reaction’, ‘serious adverse reaction’, and ‘suspected unexpected adverse reaction’. The latter category is defined as one the nature, severity and product outcome of which is not consistent with the summary product characteristics, which are a key part of the authorisation process.

EU Ways of Governing the Marketing of Pharmaceuticals 297 In the new regulatory system this database is accessible to the general public. In March 2005 an EMA Working Group issued recommendations and proposals for action regarding the transparency, dissemination of information, product information and pharmcovigilance. However, these proposals do not include patients’ access to a computer assisted system for the entire authorisation, renewal, follow-up and inspection process concerning medicinal products the EU and WHO, working jointly, have developed (‘SIAMED 2000’).45 Accountability In the old regulatory system the responsibilities of the decision-makers involved in the authorisation process were generally described. In the new regulatory system the tasks of the members of the EMA, its scientific committees and working groups have been specified. To prevent regulatory capture the old and new regulatory systems provide for job rotation and impartiality of officials. With respect to job rotation one measure is that members of the Agency’s Scientific Committee are appointed for a threeyear-term which may be renewed. The Executive Director is appointed for a period of five years which may be renewed once. In order to guarantee independence and transparency, members of the Management Board of the EMA, members of the committees, rapporteurs and experts, as well as all members of staff of the competent authority of the member states are required to have no financial or other interests in the pharmaceutical industry which could affect their impartiality. To safeguard impartiality member states are legally obliged to refrain from giving committee members and experts any instruction which is incompatible with their own individual tasks or with the tasks and responsibilities of the Agency. In the new regulatory system the measures aimed at ensuring impartiality and independence have been specified. All actors involved in the authorisation procedure are obliged to make an annual declaration of their financial interests. Persons who participate in meetings of workings groups of the Agency must declare, at each meeting, any specific interests which could be considered to be prejudicial to their independence. These declarations are made available to the public. Regarding the activities of the EMA, all indirect interests, which could relate to the pharmaceuticals industry, must be entered in a register held by the Agency which is accessible to the public, on request, at the Agency’s office. The Agency establishes a code of conduct with particular reference to the acceptance of gifts. In addition, Regulation 726/2004

45 This information system is subject of the ‘EUDRA’ projects, run by the Commission’s Pharmaceutical Unit. It aims at ensuring speedy and accurate information exchange on pharmacovilgilance matters. SIAMED 2000 is available, free of charge, to national competent authorities in the member states.

298 Bärbel Dorbeck-Jung and Mirjan Oude Vrielink-van Heffen requires that the database on medicinal products is managed independently of pharmaceutical companies. To guarantee the independence the management of funds intended for activities connected with this database, the operation of communication networks and market surveillance permanent control of the competent authorities is established.46 We have already mentioned above some legal measures to safeguard the transparency of decision-making and the interests involved in the authorisation process. In the old regulatory system transparency was mainly provided through the notification of marketing authorisation in the Official Journal of the EC, the availability of the assessment report of the Agency’s Scientific Committee, upon request, from any interested person, as well as the publication of the members of this committee. In the new regulatory system transparency facilities have been enlarged. Now, in the approval procedure the EMA is required to publish the opinion of the CMPH, as well as the assessment report including the reasons for its opinion in favour of granting authorisation. The European Public Assessment Report shall include a summary written in a manner that is understandable to the public. If an applicant withdraws an application for a marketing authorisation submitted to the EMA before an opinion has been given on the application, the Agency shall make this information publicly accessible and shall publish the assessment report. In addition, information about all refusals and the reasons for them shall be made publicly accessible. With regard to authorised medicinal products the Agency shall immediately publish the assessment report. This report shall include a summary written in a manner which is understandable to the public. To provide for an appropriate level of transparency, the Management Board of the EMA shall adopt rules to ensure the availability to the public of regulatory, scientific or technical information concerning the authorisation of medicinal products which is not of a confidential nature. Furthermore, the EMA is legally obliged to make available to the public its internal rules and procedures, agendas and records of its meetings, accompanied by decisions taken, details of votes and explanation of votes, including minority opinions. To support the accessibility of the documents concerned, the Agency shall set up a particular register. Major changes Regarding patients’ participation we observed that this topic did not receive much attention until quite recently. In the new regulatory system patients are represented in the EMA’s Management Board. Information about the authorisation of medicinal products, including refusal or withdrawal of applications, is now accessible to patients. Patients’ participation in authorisation procedures is now embedded in a new policy on patients’ 46

Article 102a, Directive 2004/27/EC.

EU Ways of Governing the Marketing of Pharmaceuticals 299 safety in the health sector. With respect to accountability the responsibilities of the decision-makers involved in the authorisation procedures and the measures that must ensure their impartiality have been specified in the new regulatory system. Many changes have taken place with regard to the transparency provisions. In the new regulatory system information about the decision-making process related to the approval of pharmaceuticals including withdrawals of applicants and refusals of competent authorities, as well as internal rules and procedures is accessible to the general public. In the old system only a very small part of this information was published. V. ANALYSIS OF CHANGES—A SHIFT TOWARDS INCREASING EUROPEANISATION, BETTER CONSUMER PROTECTION AND BETTER REGULATION?

Europeanisation With regard to the importance and impact of EU regulation related to the authorisation of pharmaceuticals, the present development of the regulatory system reveals a strong movement towards Europeanisation. Though the European competence to establish legally binding rules is rather limited in this policy field, and even though the member states are rather successful in preventing the transfer of all their authority to the EU level, the evolution of the regulatory system indicates incremental, but consequential increase of European influence. The increasing level of direct and indirect obligation in the new regulatory system seems to leave less room for the control of member states. Through a system of attracting the best experts to the European Medicines Agency, its committees and working groups, this European authority will probably be the most competent one in the future to approve medicinal products. Though the member states still maintain control over the appointment of EMA and CHMP members, it is questionable whether this control in fact confers influence on approval decisions, since national delegates may take views in the European bodies independently of partisan considerations and loyalties (Gardner, 1996: 59; Kaufer, 1990: 163; Majone, 2002; Wessels, 1997). It is likely that national representatives tend to feel less closely bound to national views in a climate of consensus and compromise that has increasingly been created through the regulatory system. According to Feick and Broscheid (2005), the development of European agencies, such as the EMA, being part of and coordinating networks of national regulatory authorities, may lead to ‘cosmopolitan’ bureaucrats with a European orientation, thus Europeanising the behavioural orientation of national agencies in the long run. Regarding the new EU measures of coordination and conflict solution that are incorporated in the amended MRP/DP procedure (amongst which is the establishment of a coordination group), it is likely that national approval systems will converge in the future.

300 Bärbel Dorbeck-Jung and Mirjan Oude Vrielink-van Heffen Better consumer protection? Above we focused on two aspects of consumer protection. We described and compared the legal provisions referring to the level of risk assessment and to the competence of evaluators. As the decision-making in the scientific committees and working groups of the EMA is governed by the effort of reaching consensus, it depends on the majority of opinions whether high risk assessment standards will be adopted. We already mentioned that it is likely that in a climate of consensus and compromise delegates of member states do not feel closely bound to high partisan standards. As regards the mutual recognition/decentralised procedure, there is even more evidence that the least demanding national authority will exert influence on the level of the standards. A pharmaceutical company seeking a marketing licence may withdraw approval if the Concerned Member State was perceived to have higher assessment standards than other member states and try to obtain authorisation in one of the ‘weaker’ states. National agencies, reliant on industry fees, may compete to be chosen as the ‘Reference Member State’. According to some commentators, this may lead to a ‘race to the bottom’ (Abraham and Lewis, 2000: 94; Hervey and McHale, 2004: 297). Considerable disagreement remains over the question whether the appropriate site for risk assessment is at national or EU level. Regarding the changes in the regulatory system that stress consensus and compromise, a devaluation of the level of risk assessment seems not to be out of question in the future. As concerns the competence of evaluators the network of member states’ experts involved in the EU’s centralised procedure is an appropriate mechanism to utilise the best scientific knowledge available. In the new regulatory system risk assessment has been professionalised including the enhancement of the competence of evaluators and the modernisation of the information system pharmacovigilance.

Better regulation? Quite recently the participation of patients has been encouraged by the membership of two representatives of patients’ organisations on the Management Board of the European Medicine’s Agency. In addition, transparency of the decision-making process related to the approval of pharmaceuticals including withdrawals of applications and refusals of competent authorities, as well as internal rules and procedures is increasingly provided in the regulatory system. Much of the relevant pharmacovigilance information is now accessible to the general public. As regards accountability the EU has taken a number of measures to prevent and minimise regulatory capture. In the new regulatory system the legal basis of these measures has been specified in hard and soft law. Regarding the fact that the budget of the EMA strongly depends

EU Ways of Governing the Marketing of Pharmaceuticals 301 on the fees industry must pay for marketing and manufacturing licences, it seems that the independence of this Agency is not entirely ensured.

VI. CONCLUSIONS

Going back to the central question of this contribution we conclude that the present European ways of governing drug authorisation imply a shift to Europeanisation. It will to be seen whether increasing Europeanisation is accompanied by increasing integration of pharmaceutical markets. As regards patients’ interests it is questionable whether the changes in the regulatory system provide adequate risk management. Though one important requirement of adequate risk management, namely the involvement of competent evaluators, seems to be provided, the level of evaluation standards raises serious questions about the adequate protection of consumers. As regards the principles of good governance we see a slow movement towards more participation of patients. Transparency of relevant information about pharmaceuticals and the authorisation procedures is increasingly provided in the EU legislation. Since the budget of the EMA depends on the fees industry must pay for marketing and manufacturing approval, the prevention of regulatory capture does not seem to be entirely ensured. There is some evidence that the particular ways of EU governance we studied provide wide support for the EU aspirations of market integration and better regulation. However, in this regulatory system consumer protection is fostered only very reluctantly. Regarding the European governance styles, we conclude that in the particular regulatory system we examined a highly sophisticated governance approach has been employed. In the policy field of drug regulation the EU has combined the styles of active interventionism with consensualism.47 These particular governance styles are characterised by increasing EU intervention that is based on an institutional structure which strongly facilitates early settlement of disagreements on drug approval. EU influence is strengthened by a sophisticated combination of bureaucratic and professional governance styles.48 In this mixture of styles regulatory decisions are based on legal rules, as well as on the expertise of the leading experts from the pharmaceutical world. Interestingly, old style harmonisation has not been replaced by new style harmonisation. In the EU regulatory system related to drugs approval methods of traditional coordination have increasingly been associated with methods of EU new governance. 47 See, Van Waarden, 1996: 41–56. In his investigation Van Waarden deals with regulatory styles with regard to the formation and implementation of rules. 48 See Terpstra and Havinga, 2001. These auteurs deal with four policy implementation styles, including the professional style.

302 Bärbel Dorbeck-Jung and Mirjan Oude Vrielink-van Heffen In summary, EU governance styles are characterised by increasing hybridisation and diversification. Our investigation indicates, as concerns the European governance culture, that the transparency of EU governance processes and the accountability of decision-makers are important values of an emerging regulatory culture. Finally, we conclude that the EU managed to develop ‘smart’ ways of governance through attracting the very best experts to the European Medicine’s Agency, by combining the most appropriate methods of governance and last, but not least, through promoting attractive principles of governance.49

REFERENCES Abraham, J and Lewis, G (2000) Regulating Medicines in Europe: Competition, expertise and public health (London, Routledge). Benz, A (2004) ‘Einleitung: Governance—Modebegriff oder nützliches sozialwissenschaftlichen Konzept?’ in A Benz (ed), Governance—Regieren in komplexen Regelsystemen: eine Einführung (Wiesbaden, VS Verlag für Sozialwissenschaften). Black, J (2002) ‘Critical Reflection on Regulation’ CARR Discussion Paper Series 4 (London, The London School of Economics en Political Science). Broscheid, A and Feick, J (2005) ‘Towards a European FDA? The Review of European Pharmaceuticals Authorization’, 2005 Meeting of the European Union Studies Association (Austin, USA), Paper (‘work in progress’). Cecchini, P et al (1988) The European Challenge 1992. The Benefits of a single Market (Hants, Wildwood House). European Commission (DG Enterprise) (2001) Evaluation of the operation of Community procedures for the authorisation of medicinal products “Cameron NcKenna/Andersen Consulting report” (Brussels). Feick, J (2000) ‘Wissen, Expertise und regulative Politik: Das Beispiel der Arzneimittelkontrole’ in U Schimank and R Werle (eds), Gesellschaftliche Komplexität und kollektive Handlungsfähigkeit (Frankfurt/New York, Campus Verlag) 208–239. —— (2002) ‘Regulatory Europeanization, National Autonomy and regulatory Effectiveness: Marketing Authorization for Pharmaceuticals’ MPIfG Discussion Paper 02/6 (Köln, Max-Planck-Institute for the Study of Societies). —— (2005) ‘Learning and interest accommodation in policy and institutional change: EC risk regulation in the pharmaceuticals sector’ CARR Discussion Paper Series 25 (London, The London School of Economics and Political Science). Frederiksson, HG and Smith, KB (2003) The Public Administration Theory Primer (Boulder CO, Westview Press). Friedman, LM (1994) ‘Is there a modern legal culture?’ Ratio Juris 7(2) 117–131. Gardner, J (1996) ‘The European Agency for the Evaluation of Medicines and European regulation of pharmaceutical’ European Law Journal (2), 48.

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The meaning of ‘smart’ regulation is discussed by Gunningham and Grabovsky (1998).

EU Ways of Governing the Marketing of Pharmaceuticals 303 Gessner, V (1994) ‘Global Legal Interaction and Legal Cultures’ Ratio Juris 7(2) 132–145. Gunningham, N and Grabovsky, P (1998) Smart Regulation. Designing Environmental Policy (Oxford, Clarendon Press). Hahn, R (2000) Reviving Regulatory Reform. A Global Perspective (Washington, AEI Press). Hart, D and Reich, N (1990) Integration und Recht des Arzneimittelmarktes in der EG. Eine Untersuchung zum Produkt und Marktrecht der Gemeinschaft und ausgewählter Mitgliedstaaten (Baden-Baden, Nomos). Hancher, L and Moran, M (1989) ‘Introduction’ in L Hancher and M Moran (eds), Capitalism, Culture and Economic Regulation (Oxford, Clarendon Press) 1–10. Hervey, TK and McHale, JV (2004) Health Law in the European Union (Cambridge, University Press). Héritier, A (2003) ‘New Modes of Governance in Europe: Increasing Political Capacity and Policy Effectiveness’ in TA Borzel and RA Cichowski (eds), The State of the European Union (Oxford, University Press). Kaufer, E (1990) ‘The regulation of new product development in the drug industry’ in G Majone (ed), Deregulation or Re-regulation? Regulatory Reform in Europe and the United States. (London-New York, Pinter). Kersbergen, K van and Waarden, F van (2004) ‘Governance as a bridge between disciplines: cross-disciplinary inspiration regarding shifts in governance and problems of governability, accountability and legitimacy’ European Journal of Political Research 43, 143–171. Kooiman, J (2003) ‘Societal Governance: Levels, Models, and Orders of SocialPolitical Interaction’ Debating Governance: Authority, Steering and Democracy (Oxford, University Press) 138–164. Knill, Ch and Lenschow, A (2003) ‘Modes of Regulation in the Governance of the European Union: Towards a Comprehensive Evaluation’ European Integration Online Papers 7, http://eiop.or.at/eiop/texte/2003-001a.htm. Liikanen, E (2002) Pharmaceuticals in Europe. Getting the Future Legal Framework Right Paper presented at the 8th Annual Pharmaceuticals Conference London. Mayntz, R (2004) ‘Governance Theory als fortentwickelte Steuerungstheorie?’ MPIfG Working Paper 04/1 (Köln, Max-Planck-Institute for the Study of Societies). Majone, G (2002) ‘Functional interests: European agencies’ in M Shackelton (ed), The Institutions of the European Union (Oxford, University Press). Mossalios, E and McKee, M (2002) EU law and the social character of health care (Brussels, Peter Lang). Ogus, A.I. (1994) Regulation.Legal Form and Economic Theory (Clarendon Press, Oxford). Pierre, J and Peters, BG (2000) Governance, Politics and the State (Houndsmills, Macmillan Press). Reich, N (1988) Die Europaisierung des Arzneimittelmarktes—Chancen und Risiken (Baden-Baden, Nomos). Schuppert, GF (2006) The Europeanisation of Governance (Nomos Verlagsgesellschaft, Baden-Baden). Selznick, P (1985) ‘Focusing Organizational Research on Regulation’ in RG Noll (ed), Regulatory Policy and the Social Sciences (Berkeley, University of California Press).

304 Bärbel Dorbeck-Jung and Mirjan Oude Vrielink-van Heffen Senden, L (2004) Soft law in European Community Law (Oxford, Hart Publishing). —— (2005) ‘Soft law, self-regulation and co-regulation in European Law’ Electronic Journal of Comparative Law 9(1). Sunstein, C (1990) After the Rights Revolution. Reconceiving the Regulatory State (Cambridge, Mass., University Press). Thompson, R (1994) The single market for pharmaceuticals (London, Butterworths). Terpstra, J and Havinga, T (2001) ‘Implementation between Tradition and Management: Structuration and Styles of Implementation’ Law and Policy 23 (1). Treib, O, Bähr, H and Falkner, G (2005) ‘Modes of Governance: A Note Towards Conceptual Clarification’ European Governance Papers No N-05-02. Vogel, D (1998) ‘The Globalization of Pharmaceutical Regulation’ Governance: An International Journal of Policy and Administration 11, 1–22. Vos, E (1999) Institutional Frameworks of Community Health and Safety Regulation— Committees, Agencies and Private Bodies (Oxford, Hart Publishing). Waarden, F van (1996) Regulation, competition and innovation (The Hague, Dutch Advisory Committee on Technology Policy). Wessels, W (1997) ‘An ever closer fusion? A dynamic macropolitical view of integration processes’ Journal of Common Market Studies 35(2) 267–299. Zweigert and Kötz (1992) Introduction to Comparative Law (Oxford, Clarendon Press).

11 Embedded and Disembedded Rationality: Contributions to Global Governance from European and US American Legal Cultures GERD WINTER

I. WHAT IS GLOBAL GOVERNANCE?

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ociologists of law commonly focus on the search for universal theories on law and social structure. While their frame of reference has traditionally been national societies, recently the attention of the scientific community has shifted towards the law in transnational transactions and international regimes. For instance, studies exploring the selfgovernance potential of industry and studies on multilevel organisation have found seminal ground in trans- and international relations. Altogether, many different layers of informal and formal law have been discovered thus prompting scholars to speak of legal pluralism or interlegality. The fascination with new forms of law has however somewhat disregarded the more painful question of what problems the law should address and solve. Sometimes the effects of legal forms come into view, but seldom is the more demanding inverse perspective taken, ie an inquiry from functions to legal forms asking what the problems are, and what legal form and level may be appropriate to solve them. Based on Adam Smith’s works, three tasks have widely been attributed to the state and its law: (1) the internal public order, (2) national defence, and (3) public works and institutions (or infrastructure in modern terminology) (Smith, 1775/6). Interventionism—the setting and implementation of political goals (such as redistribution, environmental protection, etc)—has emerged as a fourth function of the modern welfare state (Grimm, 1994). In the transnational perspective the four tasks reappear as a challenge for transnational and international governance. Certainly the maintenance of global public order is a major task, including the enabling and controlling of transnational economic transactions. Another major task is international

306 Gerd Winter peace-keeping, and a third the provision of transnational infrastructure (such as air transportation), although this largely remains a national task. As part of interventionism, the preservation of the global environment has become a major task of transnational governance. Given the fundamental nature of the living conditions for human life, I suggest that this should be understood as something even more fundamental than normal interventionist policies. We are entering a period of the development of the earth system called the anthropocene. This term indicates that mankind´s footprint on the global biosphere has become so deep and vast that human impact has brought the system to the brink of making human life untenable in many regions of the earth. Figure 1 using a footprint methodology shows that humankind has overstepped the bearing capacity of the earth, and Figure 2 shows what effects may be caused by such impact. There are indications that the fundamental mechanics of the earth system have been upset and may move towards unknown states. The oceanic thermohaline ‘pump’, a fundamental mechanism supporting the temperate zones of the earth, may be irritated by changes in rain patterns and salt content of oceans due to human induced climate change. It is speculated, for instance, that this may cause the golf-stream to lose its dynamics. If the fundamental mechanics of the earth as a whole are affected, then a new kind of institution and institutional analysis is needed. Just as with scientific earth

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Embedded and Disembedded Rationality 307

Fig. 2: Oceanic thermohaline circulation (black: surface currents, dark grey: deep water, light grey: bottom water)(Lemke, 2006: 56).

system analyses, the social and legal analyses of institutions must be holistic. This does not mean that the only solution is to develop international law towards a supranational organisation endowed with powers to manage the fundamental laws of the globe. On the contrary, a holistic view requires a look at the full scale of institutions because all levels contribute to the systemic whole (Winter 2006). Such kind of multilevel governance would include: (1) The construction of ‘vertical’ regimes, ie international organisations having the power to make secondary law and urge contracting parties to implement it. (2) The horizontal diffusion of state based legal concepts through transnational discourses, consultancy, mimesis, coercion, etc. (3) The development of national laws towards an attitude of trusteeship for the globe. An inquiry into the contributions of states to global governance would therefore look at three paths: national legal concepts influencing international regimes; national legal concepts offered for horizontal diffusion; and • national legal concepts as individual contributions to an overall whole. The aim of this chapter is to compare the contributions to global governance of Europe and the United States thus highlighting the two most prominent contributors to and managers of global environmental change. I will trace differences in EU and US legal cultures in these contributions. Others have elaborated on the impossibility and yet seminality of this term (Gessner/Höland/Varga 1996: 3) and I will not attempt to give it much more shape. For the purpose of this chapter I suggest that by legal cultures one might understand basic assumptions about society and its governability built into various types of law. • •

308 Gerd Winter Analysing legal cultures of this kind I will look at three sectoral policies and ask what the EU and US legal contributions have been. The policies chosen concern climate protection, hazardous chemicals, and biotechnology. Climate protection is taken as an example of international regime formation; hazardous chemicals as one for horizontal diffusion of national concepts; and biotechnology as one for national contributions to an overall whole.

II. CASE STUDIES

1. Climate policy and international regime building Climate policy will serve as an example for EU and US contributions to international regime formation. I begin with a summary of the history of climate policy in the emergent regime1 and continue with a description of the major arguments carrying the different approaches to international regime formation. (a) History As early as 1990 some EU member states adopted national targets for the reduction of CO2 emissions. No such targets were introduced in the US at the time. This was due to the so-called ‘no regrets’ policy, according to which the mitigation of climate change should be limited to actions which are profitable for other reasons as well. An example here would be that the costs of the investment into energy efficiency devices being fully outweighed by gains from energy saving. Thus the US decided it would be preferable not to engage in a reduction of CO2 emissions beyond profitability. Next, at the Rio Conference on Environment and Development (UNCED) of 1992 the UN Climate Convention was concluded. It was discussed there whether the industrialised states should pioneer in setting climate gas reduction targets, as the EU desired, or whether the developing states had to be included in such obligation, as the US argued. A compromise was reached by framing non-quantified reduction obligations for all contracting states, on the basis of the principle of joint but differentiated responsibility. In addition, the obligation to take a number of measures in order to mitigate climate change was prescribed. The Convention was signed and ratified by both the EU and US and has since been put into force. The Kyoto Protocol was concluded in 1997. The US was successful in convincing the EU to agree to include all climate gases in the agreement, not just CO2. The EU accepted a reduction of 8 per cent by 2010 compared with 1990, while the US agreed to a reduction of only 7 per cent. Against 1

Following Oberthür/Ott, 1999; Schreurs, 2004; Freestone/Streck 2005.

Embedded and Disembedded Rationality 309 its initial position of relying upon conduct measures aiming at technology forcing, the EU agreed to US proposals to introduce so-called flexible mechanisms. This meant that the emission rights could be traded or could be obtained by investment reducing climate gas emissions in Annex B states (joint implementation – JI) or in developing states (clean development mechanism – CDM). The Kyoto Protocol was ratified by the EU. As for the US, although having signed the convention during the Clinton administration, it stepped back from ratification on the ground of the Cheney report of 2001. This report stated that the US energy hunger was so demanding that more rather than less energy had to be supplied. In 2001 the Marrakesh Accords were concluded, establishing ambitious supervisory mechanisms to ensure that the flexible mechanisms were not misused. In spite of being active in negotiations, the US did not ratify or even sign the treaties. In the EU the Kyoto Protocol was implemented in two steps. First, according to a Council Decision, the overall target of 8 per cent was broken down into individual targets allowing less developed member states to emit more than the higher developed member states. Second, a Directive was issued establishing the basic rules on the allocation of emission rights, emissions trading, JI and CDM. Consequently, the member states created national legislation on the matter. Most of them allocated the first round of emission rights on the criterion of grandfathering. This means that the historical factual emissions were broadly taken as a legal allowance. Qualifications were enacted by some member states—for instance additional emission rights were given as a compensation for ‘early action’, ie recent investment in emission reduction technology. In the US, while pro-active measures of the federal government were largely missing, some states such as California have since introduced some measures on their own. The results of the endeavours are poor, not only in the US, as one would expect, but even in the EU. In the US emissions had increased by 12 per cent in 2005, which means that the US is 19 per cent away from the Kyoto commitment of the 7 per cent decrease to be achieved by 2010. In the EU a decrease of 1.7 per cent per year was attained, which is still 6.3 per cent away from the 2010 target of 8 per cent. The reason for this failure is twofold: first, the choice of grandfathering for the initial allocation of allowances, and second, the low trading price for emission allowances which in all circumstances makes it cheaper to buy emission allowances than to invest in emission reduction technology. The low price has different causes such as a general slow-down of economic growth, the monopoly structure of utility companies which allows them to forward purchase prices for emission allowances to the consumers, the possibility to acquire emission allowances through JI and CDM measures, and the possibility to buy emission allowances from countries who allowed themselves undemanding reduction targets in the Kyoto round.

310 Gerd Winter 500 450 400 350 300 250 200 150 100 50 0

n k d d l n i n e d ie en ar lan lan and ich lan nn nd lien and uen urg alta nd eich len ga de ake nie nienhien arn ern i a l g em h st n re n ta rl ta ttl ta b M rla rr Po tu we w e a c ng yp l i r e o w p e Be än tsc E Fin ank che br I I Le Li xem de t Po Sch Sl Slo S sch U Z s D eu ie Ös T Lu Fr rie ros N D G G

Fig. 3: Allocation of emission allowances by the EU Member States (from Point Carbon, Carbon Market Monitor, Mai 2005; cited in Michaelowa 2005). The left (grey) column represents the allocated allowances, the right (black) the factual emissions at the date of allocation. The difference is very small indicating that almost no reduction effect was attained in the first round.

Looking at the post-Kyoto prospects in the EU, we see that the failure to reduce emissions in the first round has fostered expectations and plans to do better in the second round, beginning in 2008. However, grandfathering will certainly continue if the current economic crisis (which caused the resistance to reductions) prevails until then. It is general agreement among states that the Kyoto targets must be tightened if anything at all shall be agreed regarding climate policy. It seems that the EU, a long-time pioneer in international climate policy, has lost its courage. As to the overall goal, it will renounce mitigating any temperature rise. In concrete terms, this means it will accept a 2° centigrade temperature rise with all the damage this will cause to certain world regions. The new reduction target the EU will run for will even be much below the level needed to reach the 2° centigrade target.2 This means that the EU has finally given in to the attitude of the US. 2 The necessary reduction would be 60%–80% by 2020, the commitment realistically to be expected is 15%–30%. See Michaelova, 2005.

Embedded and Disembedded Rationality 311 (b) Reconstructing the EU and US contributions In what follows I will summarise the major legal policy arguments exchanged in the formation of the regime and legal concepts inscribed in it. Even though I allocate different lines of thought to the EU and the US this does not mean that ‘European’ concepts are not also to be found in the US, and ‘American’ concepts in the EU. My focus here is not on the whole picture in all its detail but rather on the basic traits and ideal types. I distinguish the following dimensions of discourse: •





On global justice: The EU believes that industrialised nations must act first expecting that others will emulate. The US, by contrast, rejects any pioneering because with major emitters like China, India and Brazil the benefit of climate protection would be small for the US compared with the high costs. This is a rational position from an individual perspective, but it disregards the potential of pioneers to mobilise followers. Even more recent US considerations to renegotiate Kyoto are based on this individualistic view: a Coasean deal should be struck between those states which benefit from climate protection and those which benefit from climate change, the former having to compensate the latter in order to make them willing to also contribute to climate protection (Stewart/Wiener 2003). On risk assessment: The EU was prepared to act on the basis of predictions on climate change of the panel of experts of the Framework Convention on Climate Change (FCCC), accepting that the final proof of the human share in climate change was still missing. Given the seriousness of possible consequences, precautions should accompany every action made. In contrast, the US has required insistently for a long time that better scientific ground for incurring costs be taken. It was only very recently that a majority of US states and scholars agreed that there was sufficient evidence to take action. This conviction was much furthered by the damage caused by the Hurricane Katrina on 30 August 2005. This incident has been taken as an indication that climate change costs may outweigh costs of preventive measures. On instruments: The EU started the negotiations favouring conduct measures, such as requiring the implementation of the so-called BATNEEC (‘best available techniques not entailing excessive costs’) criterion. The appropriate measure would be to establish thresholds for concentrations or freights of climate gases in the emissions of industry. Contrastingly, the US proposed and advocated incentive measures using emissions trading in order to provide maximum flexibility for the individual emitter. In order to facilitate agreement the EU accepted the US position, not altogether unwillingly though, because emissions trading had won support within the European Commission which had

312 Gerd Winter already earlier adopted a more neo-liberal position. However, the EU even though accepting the flexible approach in principle insisted that it be put into a regulatory framework, for instance by requiring comprehensive action plans and setting caps for JI and CDM projects. This should ensure that the flexible mechanisms do not undermine and discourage other climate protection measures that the states introduce or are required to introduce under the FCCC and the Kyoto Protocol.

2. Hazardous chemicals and the horizontal diffusion of national concepts The second case I present is that of chemicals regulation. This can serve as an example for the horizontal diffusion of policies. The history of emergence of the regimes can be described as follows. (a) History Since the early 1990s European Community law and national law transposing it3 required that chemical substances had to be notified by the producer or importer before they could be placed on the market. Extensive data on the properties and prospective uses of the chemical had to be submitted, with variations according to the marketed volume. For ‘existing substances’, ie chemicals which were marketed before the introduction of the notification requirement, a phase-in scheme was applied. Producers and importers of high-volume substances had to submit the data at their disposal. On this basis priority substances were to be identified, for which obligatory data sets (again varying with volume) had to be submitted. Ideally the data for new and existing substances had to be assessed and risk reduction measures were to be taken on that basis, either by the member states or the EC. In the US4, although new chemicals were also to be notified, the data sets were less extensive and therefore less costly. More data were to be submitted only upon individual order by the responsible agency. In the case of existing substances, no phase-in scheme existed at all. The agency could however ask producers to submit data when it was able to show that there was a reasonable risk to human health or the environment. In the late 1990s NGOs in the US alleged that there was wide ‘toxic ignorance’, ie next to nothing was known about the risks of tens of thousand chemicals traded on the market (Winter, 2000). The reason for this was that in the US the Environmental Protection Agency (EPA) rarely asked for the generation and submission of in-depth data. Later on, the same allegation

3 4

For overviews see Rehbinder, 2003 and Callies, 2003. For an overview see Spiecker genannt Döhmann, 2004.

Embedded and Disembedded Rationality 313 was raised by European NGOs claiming that also in the EC the authorities were lacking adequate data to assess and manage risks of existing chemicals, the reason being that industry although under legal obligation widely refused to comply. The sanctions—namely fines—were almost never applied and enforced. The public protest was taken seriously both by the US and EU. But they reacted differently. The US government relied on voluntary measures. It encouraged a voluntary commitment from industry to submit the relevant data for 1,000 HPV (high production volume) substances within five years. The EU also welcomed a voluntary commitment from producers, but in addition the European Commission elaborated a proposal for a stricter scheme for existing chemicals, the so-called REACH proposal (Registration, Evaluation and Authorisation of Chemicals).5 This proposal extends the strict notification (now, registration) requirement to existing substances thus phasing them into the risk assessment realm. While the manufacturers and importers of substances are the primary addressees of the registration duty, downstream-users are also included into the obligation to generate and submit risk relevant data. For substances (both new and existing) found to be dangerous an authorisation requirement and a streamlined empowerment to restrict substances are proposed. The European Commission instigated a worldwide hearing procedure on the REACH proposal.6 About 6,000 comments were submitted from all parts of the world, including the major chemical producer and trading associations. The US government launched a strategy of lobbying at EU and member state levels of yet unknown intensity. All in all, the REACH hearing was probably the biggest public inquiry ever, and a striking example for a new procedural dimension of law-making in the era of horizontal diffusion of regulatory concepts. US and EU firms submitted expertises claiming tremendous costs of REACH for industry. While they did provide detailed information about the regulatory costs they however failed to do so for the benefit for human health and environment prospectively derived from REACH. The EU mandated counter-expertises showing that the costs were overstated (SRU, 2003). Since 2004 and subsequently in many other states it has been discussed whether the REACH approach should also be introduced in their own jurisdiction. For instance, Japan is considering to adopt REACH. Moreover, it seems that non-EU producers will adapt their products to REACH-requirements even if they are not placed on the EU market. Such so-called voluntary

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Commission Communication Com (2003) 644. See http://ec.europa.eu/enterprise/reach/consultation_en.htm.

314 Gerd Winter trading-up occurs if economies of scale can be obtained from generalising standards of a significant market such as the EU demand for chemicals. A chemical may also sell better if it can be labelled ‘REACH-registered’. Speaking about outcomes the voluntary commitment of industry in the US and the EU has not reached its target. Data sets for 250 substances were submitted by the deadline, ie one quarter of the targeted data sets for 1,000 substances. In the US about 20 risk assessments were made by governmental agency, in the EU the number was about 140. (b) Reconstructing the EU and US contributions •









On global justice: although the EU and the US are the main producer countries this global dimension was hardly discussed in the EU or in the US. Even if long-term and long-range effects of certain chemicals came into view, the focus was on effects on the domestic environment. On procedures of law-making: the EU invited comments to its regulatory plans from the global civil society. Knowing that the new scheme would have an impact on global production and trade, it felt that those affected should be able to participate. Contrastingly, although based on intense public debate, the US policy changes are the outcome of the American population’s stance rather than the global community’s. On instruments: although the EU welcomed voluntary commitments of industry, it insists on strict regulation, establishing registration, restrictions and authorisation requirements. The US has more extensively relied on voluntary measures. The approach in relation to new substances is regulatory also in the US, but with less strict requirements than in the EU. On risk assessment: the EU requires the submission by industry of ambitious data sets in order to be able to conduct profound risk analyses. In a way the burden of proof is laid on the producers of risk. In the US the public agencies must generate information in order to determine whether there is reason to go into more detail. Only in this case can more comprehensive information be required from industry. On risk management: The interesting question here is if measures are taken on the grounds of inconclusive knowledge, and to what extent regulatory side-effects are taken into consideration: • In the EU the precautionary principle is enshrined in both primary law and the REACH-proposal, ie restrictions on chemicals and the denial of authorisation of placing on the market chemicals can be based on grounded suspicion, in absence of full scientific proof. In the US, although the law uses a language comparable to EU formulations, courts have required a firmer scientific basis for such restrictions.

Embedded and Disembedded Rationality 315 •

In the US before a chemical is restricted a full cost-benefit-analysis must be elaborated. In the EU restrictions are based on risk assessment alone cost considerations only playing a role in cases of extreme imbalance between costs and benefits. Although the REACH-proposal does introduce a more extensive version of balancing costs and risks its focus is on substitution analysis, ie the present or future availability of substitute substances or technologies as a consideration in the decision-making on the authorisation or restriction of a dangerous substance. This means that whilst in the US the primary concern is with the costs of regulation to industry, in the EU it is the drawbacks (or substitutability) of consumer concerns. In Marxian terms one could speak of the US looking at exchange values and the EU at use values.

3. Biotechnology and national contributions to the global whole My third example deals with the law of genetically modified organisms. It shall serve as an illustration for national contributions which each have their own share in the global environmental development. Although international regime formation was also involved it covered only a segment of the problems which were to be tackled. I distinguish between law that allocates property rights on genetic resources, and law that regulates the risks and benefits of biotechnology. Once more the development of the relevant law is first described and then analysed. (a) History (1) Allocation of property rights Property rights are allocated on two levels, that of the community of states and of individuals. States have always claimed that sovereignty embraces, along with a territory, domestic natural resources. With the discovery of the genome a debate started on whether genetic resources should not be considered as common heritage of mankind. However, the developing states, for fear of a new biological colonialism, insisted that genetic resources had to be considered as sovereign property. This principle was accepted in the 1992 Convention on Biodiversity. It was however significantly qualified by a kind of tit for tat system. On the one side the states hosting resources were obliged to preserve resources, to provide open access to them by third countries and to basically accept intellectual property in genetic resources. On the other hand third states were bound to share biotechnological knowledge, results and benefits with the host state. Rather than common heritage genetic resources therefore became a kind of trusteeship sovereignty (Sand, 2006).

316 Gerd Winter In the EU Article 53(a) of the European Patent Convention of 1973 provides a restriction on the patenting of living organisms. It is stated that ‘inventions the publication or exploitation of which would be contrary to ordre public or morality’ cannot be patented, and Article 53(b) excludes patents for animal and plant varieties. After long debates about the patentability of life, an EC-Directive based on the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) finally clarifies that genes shall be patentable. In the US patents for life, including animals and plants, have been accepted since the Supreme Court judgment in Diamond v Chacrabarty of 1980.7 This decision displayed a judicial activism extending the notion of new manufacture and shifting moral considerations to the realm of the legislature (Drahos, 1999: 442; Gitter, 2001). Later on, both US and European practice converged: European patenting practice was extended to animals (onco-mouse), micro organisms (bakers’ yeast), plants, and genes (Drahos, 1999: 442). (2) Risk Regulation In the US no specific regime for genetically modified organisms has been introduced. The existing regulation of intrinsically hazardous products such as pesticides and drugs is also applied to hazardous products consisting of GMOs (Vogel, 2003). Risks from the genetic modification are only checked if there are indications that they may exist. By contrast, in the EU genetic modification was submitted to a special regime which came as an addition to the existing regulation of hazardous products. Very comprehensive data are to be submitted to the authorisation process for the mere fact that there is genetic modification. For some products the double authorisation was replaced by one (one door—one key principle), as it was done for drugs, but the data requirements and risk assessment obligation targeting specific risks from genetic modification remained applicable. The scrutiny of risk assessment was even reinforced in Europe after the BSE crisis which made the previously more pragmatic UK join the continental risk aversion in relation to GMOs (Vogel, 2003:17). Directive 2001/18 established a more in-depth risk assessment even introducing assessment of indirect effects. These may consist in consequences of the use of herbicide resistance of seeds for agricultural practices concerning pesticides. The post-BSE scepticism of the consumers in the MS led to a de facto moratorium of the EU and MS authorities in authorising the placing on the market of GMOs from about 2000 to 2005. The US and other states initiated a WTO dispute settlement procedure alleging protectionist practices of the EU. The EU reacted by shifting the

7

447 US 303 (1980).

Embedded and Disembedded Rationality 317 competence of authorising GMOs to the EU-level, thus aiming at streamlining the procedure (Regulation No 1928/2003). At the same time preventive risk control was relativised: labelling requirements were to inform consumer choice (Regulation No 1830/2003) and coexistence of conventional and GM agriculture was probed as a means to make way for GMO-based agriculture (amended Article 16a of Directive 2001/18). This new EU legislation and the technology mindedness of the new European Commission have recently put the moratorium to an end. (b) Reconstructing the EU and US contributions •







On global justice: the EU accepted a deal agreeing on sovereign rights of host states in biodiversity in exchange for the duty of host states to open access to their genetic resources. Intellectual property rights in genes and living organisms have to be made available, but property right holders have to share benefits with states of origin. User states shall transfer technology and assist host states in preserving genetic resources. The US, by contrast, does not see its interest in access and exploitation of genetic resources adequately reflected in this deal. In particular, requirements of benefit and technology sharing were refuted. Therefore, the US did not ratify the Convention on Biodiversity (CBD). On the perception of environment: In the EU life is regarded a moral or public good which should not be transformed into exclusive rights of economic actors. Although giving in to the privatisation concept the EU insisted on restrictive conditions (moral exception, no patent for animal and plant species). In the US life is understood as a good like any other good of economic value (except for human life). It can be made private property and traded on the market. On risk assessment: In the EU there is a basic mistrust in the new technology of genetic engineering; therefore a control regime with extensive data generation has been introduced. The US is more pragmatic: risks of GMOs are checked in connection with hazardous properties that a product may have for other reasons than genetic modification; the checking is based on concrete information and not on general suspicion. On risk management: Both the EU and US have stuck to traditional regulatory instruments in the GM field. The US has however simplified the control mechanism thus erecting lower hurdles than the EU for GM industry. III. CAUSES

Having reconstructed the major characteristics of legal policies I will now put them together on a more abstract level and explain what role they

318 Gerd Winter play among the various other factors explaining contributions to global governance. I will do this by first looking at the following supplementary factors.

1. Theories of international relations Political science research on international behaviour of states usually relates its empirical observations to a number (or catechism) of theories—such as realism, rational choice, problem structure, and constructivism or institutionalism—designed to explain behaviour (Risse, 2003). These theories assume that the state is a consistent entity operating according to a genuine logic of the international arena. In fact, internal and geographically specific factors also play a significant role (Schreurs, 2002: 1, 241). It is important to address such specific factors if differences in the contributions of states and regions to global governance are to be investigated. Looking at those factors one may come to the conclusion that the two most outstanding theories of international relations, rational choice and constructivism, are ‘reified’ in the sense that rather than being once for all explanations they characterise US and EU politics respectively, the US tending rather to rationalistic and the EU rather to constructivist attitudes.

2. National peculiarities of the polity and constitutions One relevant factor is the relative influence of political majorities on external politics. When domestic political majorities change, external environmental policies can also be re-orientated. This was the case, for instance, when George W Bush followed Bill Clinton as president and declined to ratify the Kyoto Protocol.8 Unlike in the US, in the EU political majorities have a less dramatic impact on external policies because first of all, given the different orientations of the member states there is hardly something like an overall European political majority. Although the European Parliament does hold a majoritarian position, these majorities often emerge across party lines. The Council is more concerned with approximating member state interests’ than with party politics, while the Commission focuses on a genuine European interest, remaining relatively independent from party politics both on the member state and the EU level. Another factor is the general attitude of states vis à vis international law. While a multilateral approach is widely accepted in the EU, the US has for a

8 See on the influence of energy industry on the Bush Administration in the climate field Blanchard/Perkhaus, 2004.

Embedded and Disembedded Rationality 319 long time followed isolationism and has after a short period of multilateralism—the erection of the UNO—largely turned to unilateralism. This means that it sees international law as an instrument of pursuing national interests (Giegerich, 2006), whereas the EU has tended to use international law as a means to build global consensus. A third factor is the difference of openness of constitutions to international law. The EC treaties as interpreted by the ECJ are somewhat more open than the US constitution. After a lengthy history of clarification the EC has been recognised to possess wide competences for environmental treaty-making (Krämer 2004). In most cases a qualified majority of the Council suffices for the conclusion of an international treaty. The EC constitution (Article 300 para 7) is interpreted to accept direct applicability of international obligations (provided the wording intends direct effect and is precise and unconditional). International law is even considered to have prevalence over opposing EC law. In contrast to this, in the US a two thirds majority of the Senate is necessary for the conclusion of a treaty. Although in principle following a monist conception in most cases, the US ensures that conventions are formulated in general terms so that federal or state legislation is still needed thus excluding a self-executing effect. The constitution is also understood as excluding the participation of the US in international organisations that have supranational powers. 3. Legal cultures Besides political and constitutional peculiarities legal cultures must be considered as influential to the contributions of states to global governance. As stated earlier I propose to understand by legal cultures certain basic assumptions of the law about the reality and governability of its regulatory field. In the present context I see the legal contributions of the US and the EU characterised by different ideal types of rationality (in the Weberian sense of an abstraction from a plurality of phenomena). These could be called embedded rationality for the EU and disimbedded or ‘purified’ rationality for the US. Embedded rationality implies a reasoning which understands itself to be framed and influenced by public discourses, beliefs, norms and social structures (Brand/Reusswig, 2006). Disimbedded rationality means a rationality which is cleansed of the context. When confronting these types of rationality it is important to remain neutral, ie look at the difference from a more remote position. This leads to the following comparative statements: •

Concept of justice: In the US, states and individuals behave egoistically and can only be persuaded to participate in common agreements when they can expect net economic benefits (the Pareto or Kaldor Hicks assumption) (Wiener, 1999: 747). On the contrary, in the EU

320 Gerd Winter









states and individuals accept commitments without looking at the precise cost-benefit ratio, assuming that they belong to a community where everybody has to accept a burden trusting that the public interest will in the long run also serve their individual interests. Perception of environment: In the US the environment is a resource for humankind; the tragedy of the commons suggests to make the resource individual property in order to exploit the individual’s interest in preserving it. In the EU the environment is a public good that can be managed by reasonable and democratic governance. Instrumental design: In the US conduct measures are less efficient than incentives (price based or quantity based), for only incentives can guide the dollar to its maximal environmental policy gain. In the EU conduct measures such as environmental quality objectives and BAT-requirements are largely taken to be more effective. Economic incentives are also used but embedded in a regulatory framework. Economic instruments: US: Emissions trading works as elegantly as its theory presumes; therefore no caps, restrictions in banking, and no redistribution is necessary. EU: There will be systemic market failures which will distort the efficiency of the system thus requiring caps, banking restrictions and redistributive measures in order to secure that at least some investment in cleaner technology can be expected. Cost-benefit analysis: US: Costs and benefits can be monetarised and thus be exactly balanced; in relation to intangible assets indirect measurement is possible. EU: Some assets—and indeed the most important ones such as human health and the environment—are by their very nature “priceless”. embedded rationality (EU) disimbedded rationality (US)

concept of justice

fairness

concept of environment common good commonly to be managed knowledge basis suspicion instrumental design conduct measures economic incentives enclosed in caps and other regulations Cost-risk analysis substitution and use value

Pareto optimum or KaldorHicks criterion individual property rights scientific proof incentives for win-win trust in perfect market monetarisation

4. Differences explained Both of the types of rationality probably have historical roots. In Europe it is possibly the medieval experience of the commons which stands behind

Embedded and Disembedded Rationality 321 the attitude to trust in collective solutions. Europeans have been used to— often benevolent—autocratic rule and therefore to accept and abide by state based regulation. As long as the conditions are transparent and equal for everybody even hard impositions use to be tolerated by the normal citizen. In contrast, in the US the spirit of the ‘founding fathers’ and the experience of open spaces have supported the attitude of individualism both between individuals and between states. Learning is an operation of trial and error, ie it allows for damage rather than preventing it by precautionary means.

5. Differences vanishing? The fact that the EC has finally adopted emission rights as a model, and that instruments based on homo oeconomicus are increasingly also considered for other areas of environmental law seems to indicate that legal cultures are converging, or, in post-modern terms, that legal concepts float around and are adopted or rejected according to ad hoc conditions which lead away from more deeply rooted cultures.9 However, I submit that older traditions will prove to be rather resistant. Even if new concepts impose themselves and are adopted, old practices will prevail under the veil of rhetoric. This can be shown with the example of cost-benefit analysis which is being introduced in the EU but with a different content. In 1981 President Reagan promulgated an Executive Order (No 12292) which demanded a formal analysis of costs and benefits (CBA) for rules which caused significant costs or economic impacts—the so-called Regulatory Impact Analysis (RIA). This reflected a shift of political opinion which could also be observed in legal academia. Back in the 1970s law and economics gained ground in comparison with law and society research. Economic rather than sociological analysis of legal policy became more fashionable.10 Although only a few environmental statutes explicitly mandate EPA to balance costs and benefits in setting environmental standards, notably the Fungicide and Rhodenticide Act (FIFRA) and the Toxic Substances Act (TSCA), in practice CBAs have been produced even under those Acts such as the Clean Air Act (CAA) and the Clean Water Act (CWA) which do not require or even prohibit a CBA (Navrud/Pruckner, 1997: 9). In comparison, in the EU the requirement that legal acts must obey the principle of proportionality has been cited as the European counterpart

9

Thus Wiener, 2004: 110 who calls this exchange across legal systems hybridisation. When I studied at Yale Law School in the early 1970s I myself witnessed the exodus (or expulsion) of the sociology of law from there to Wisconsin. 10

322 Gerd Winter of CBA. Proportionality means that (1) among different measures capable of reaching a given policy objective the least burdensome must be chosen (this is called the test of necessity), and (2) the remaining burden may not be disproportionate in view of the importance of the policy objective (this is called the test of disproportionality). The test indeed resembles the efficiency test which also requires looking for least burdens and the balancing of costs and benefits. But there is a significant difference because CBA is much more precise striving for monetarisation whereas proportionality is a qualitative judgement sorting out clearly disproportionate measures but not requiring sophisticated optimisation. The requirement in Article 174 ECT that benefits and drawbacks of EC policies shall be considered cannot be read otherwise. First, consideration does not mean a precondition of a positive benefit-cost ratio, and second, monetarisation is clearly not requested. Still, CBA is sometimes found as a requirement in secondary EC legal acts, but only in a few cases.11 In conclusion, EC law does ask for the balancing of policy objectives and measures but it is nowhere required that this must be done in monetary terms. A qualitative argumentation is perfectly acceptable, a fact which has made American authors suggest that ‘time seems ripe for an increased use of valuation techniques in Europe’ (Navrud/Pruckner, 1997:1). 6. Differences evaluated I have tried to remain neutral in analysing the two types of rationality. However given the endangered biosphere, policies must also be evaluated on a global scale. I believe that, fundamentally, the assumption that states and individuals are behaving according to egoistic and purified rationality is simplifying the complexity of motives, reasons and causes, and disregard the potential for agreement of the ‘transcalculatory’ factors. Taking CBA as an example much of the common and traditional political and qualitative dispute is in CBA only hidden in the tremendously wide discretionary margin the different methods of assessing costs and benefits leave open.12 Examples, especially those involving the evaluation of human life, are sometimes bizarre.13 Therefore environmentally and economically 11 Only in two cases—the setting of ambient air quality standards for SO and NOx as well 2 as for benzol—was a monetary cost-benefit study commissioned and presented as a justification for the proposed standards. But this went widely unnoticed by the public as well as academia, and in any case it remained a singular case. See Winter, 2001. On the REACH Regulation see above p. 343. 12 See under this perspective the contributions in Bateman/Wellis, 1999. 13 See Ackerman/Heinzerling, 2004: 234: ‘Moreover, through opaque and intimidating concepts like willingness to pay, quality-adjusted life-years, and discounting, economic analysts have managed to hide the moral and political questions lying just under the surface of their precise and scientific-looking numbers.’

Embedded and Disembedded Rationality 323 minded scholars often disagree about methodology, and even if they apply the same method they often disagree about results. This is due not to an underdeveloped state of the art, but to the very indeterminacy of the object itself. Just like in epistemology, where one distinguishes between the currently unknown and the unknowable, in the framework of assessment there is fundamental unassessability besides the not yet assessed. This is of course not to say that to an extent environmental services and environmental damage do not have a market value. As far as this is the case this must of course be taken into account in theory as well as in practical decision-making. In addition, disembedded rationality requires more information in order to come to a conclusion unlike embedded rationality where an educated guess is widely accepted. Not only must environmental risk be assessed (this is a prerequisite for both embedded and purified rationality), but the risk must also be monetarised (ie research on contingent costs must be conducted) and costs must be investigated in much more detail than on the basis of a rough proportionality test. Until all this information is collected no measure can be taken. The American experience with CBA based regulation shows that much less has been achieved there than in the risk-based European regulation (Ashford, 2007). Many more examples of delayed response are contained in a collection by the European Environmental Agency (EEA, 2002). I believe the best approach is to rely on embedded rationality and take egoistic rationality into account as an important element of the reality of decision-making. In instrumental terms conduct measures should be the starting point, but for well-determined areas price and quantity measures should also be applied. Putting this suggestion into a broader framework we may remind ourselves of Adam Smith’s defence of the spirit of the shopkeeper and at the same time of his warning that this spirit while admittedly influencing politics shall never govern politics: To found a great empire for the sole purpose of raising up a people of customers may at first sight appear a project fit only for a nation of shopkeepers. It is, however, a project altogether unfit for a nation of shopkeepers; but extremely fit for a nation whose government is influenced by shopkeepers. (A Smith 1775/6 II, 4 Ch 7, Part 3)

REFERENCES Ackerman, F and Heinzerling, L (2004) Priceless. On knowing the price of everything and the value of nothing (New York, The New Press). Ashford, N (2007) ‘The legacy of the precautionary principle in US law. The rise of cost benefit-analysis and risk assessment as undermining factors in health, safety and environmental protection’ in N de Sadeleer (ed), Implementing the precautionary principle (London, Earthscan), 352–378.

324 Gerd Winter Bateman, IJ and Wellis, KJ (eds) (1999) Valuing environmental preferences. Theory and practice of the contingent valuation method in the U.S., EU, and developing countries (Oxford, Oxford University Press). Blanchard, O and Perkhaus, JF (2004) ‘Does the Bush administration’s climate policy mean climate protection?’ 32 (204) Energy Policy 1993–1998. Brand, K W and Reusswig, F ‘The social embeddedness of global environmental governance’ in G Winter (ed), Multilevel governance of global environmental change (Cambridge, Cambridge University Press), 79–105. Callies, C (2003) ‘Einordnung des Weißbuchs zur Chemikalienpolitik in die bisherige europäische Chemie- und Umweltpolitik’ in M Schröder and J Hamer (ed), Das Europäische Weißbuch zur Chemikalienpolitik (Berlin, Erich Schmidt), 11–62. Drahos, P (1999) ‘Biotechnology patents, markets and morality’ European Intellectual Property Review 9, 441–449. EEA (European Environmental Agency) (ed) (2002) Late lessons from early warning, Environmental Issue Report No 22 01. Freestone, D and Streck, C (eds) (2005) Legal aspects of implementing the Kyoto Protocol mechanisms (Oxford, Oxford University Press). Giegerich, T ‘The Impact of the U.S.A. on regime formation and implementation’ in G Winter (ed), Multilevel governance of global environmental change (Cambridge, Cambridge University Press), 275–304. Gitter, DM (2001) ‘International conflicts over patenting human DNA sequences in the United States and the European Union: An argument for compulsory licensing and fair-use exemption’ New York University Law Review, vol 76, 1623–1691. Grimm, D (1994) ‘Der Wandel der Staatsaufgaben und die Zukunft der Verfassung’ in Grimm, D Staatsaufgaben (Baden-Baden, Nomos). Krämer, L (2004) ‘The roots of divergence: a European perspective’ in J Norman, NJ Vig and M Faure (eds), Green giants? Environmental policies of the U.S. and the EU (Cambridge, Mass, MIT Press), 53–72. Lemke, P (2006) ‘Dimensions and mechanisms of global climate change’ in G Winter (ed), Multilevel governance of global environmental change (Cambridge, Cambridge University Press), 37–66. Michaelova, A ‘Kann die EU ihre Vorreiterrolle in der internationalen Klimapolitik glaubhaft fortsetzen?’ Paper given at a conference in Würzburg, July 2005. Navrud, St and Pruckner, G (1997) ‘Environmental valuation—to use or not to use’ Environmental Resource Economics 10, 1–26. Oberthür, S and Ott, H (1999) The Kyoto Protocol (Heidelberg, Springer). Rehbinder, E (2003) ‘Allgemeine Regelungen—Chemikalienrecht’ in HW Rengeling (ed), Handbuch zum europäischen und deutschen Umweltrecht, 2nd edn (Heidelberg, Heymanns). Risse, T (2003) ‘Konstruktivismus, Rationalismus und Theorien internationaler Beziehungen—warum empirisch nichts so heiß gegessen wird, wie es theoretisch gekocht wurde’ in G Hellmann, KD Wolf and M Zürn (eds), Die neuen internationalen Beziehungen. Forschungsstand und Perspektiven in Deutschland (Baden-Baden, Nomos). Sand, P (2006) ‘Global environmental change and the nation state: sovereignty bounded?’ in G Winter (ed), Multilevel governance of global environmental change (Cambridge, Cambridge University Press), 519–538.

Embedded and Disembedded Rationality 325 Schreurs, MA (2002) Environmental politics in Japan, Germany, and the United States (Cambridge, Cambridge University Press). —— (2004) ‘The climate change divide: the European Union, the United States, and the future of the Kyoto Protocol’ in NJ Vig, MG Faure (eds), Green Giants? Environmental policies of the United States and the European Union (Cambridge, Mass, The MIT Press), 207–230. Smith, A (1775/6) Wealth of Nations. Spiecker genannt Döhmann, I (2004) ‘US-amerikanisches Chemikalienrecht im Vergleich’ in HW Rengeling (ed), Umgestaltung des deutschen Chemikalienrechts durch europäische Chemikalienpolitik (Köln, Heymanns), 151–198. SRU (Rat von Sachverständigen in Umweltfragen) (2003) Zur Wirtschaftsverträglichkeit der Reform der Europäischen Chemikalienpolitik. Stellungnahme Nr 4 (Berlin, SRU) http://www.umweltrat.de/03stellung/downlo03/stellung/Stellung_ Reach_Juli2003.pdf Stewart, RB and Wiener, JB (2003) Reconstructing climate policy. Beyond Kyoto (Washington DC, The AEI Press). Vogel, D (2003) ‘The politics of risk regulation in Europe and the United States’ Yearbook of European Environmental Law vol 3, 13–34. Wiener, JB (1999) ‘Global environmental regulation: instrument choice in legal context’ The Yale Law Journal 108, 677–800. —— (2004) ‘Convergence, divergence, and complexity in U.S. and European risk regulation’ in NJ Vig and MG Faure (eds), Green giants? Environmental policies of the United States and the European Union (Cambridge, Mass, The MIT Press), 73–110. Winter, G (2000) ‘Redesigning joint responsibility of industry and government’ in G Winter (ed), Risk assessment and risk management of toxic chemicals in the European Community. Experiences and reform (Baden-Baden, Nomos). —— (2001) ‘Über Kosten und Nutzen der Effizienzregel im öffentlichen Recht’ in E Gawel (ed), Effizienz im Umweltrecht (Baden-Baden, Nomos), 97–114. —— (ed) (2006) Multilevel governance of global environmental change (Cambridge, Cambridge University Press). WWF (ed) (2005) Europe 2005. The Ecological Footprint (Cambridge, Banson).

12 Dutch Legal Culture and Technological Transitions: the Impact of Dutch Government Interventions HELEN STOUT AND MARTIN DE JONG

I. INTRODUCTION

I

n official reports and statements Dutch governments have always claimed they keep out of the domain of technological innovation and refrain from interventions that could have negative effects on promising start-up companies. Rather the opposite, they would deploy their legal and administrative instruments in such a way as to strengthen their position. This claim was made in the era of the ‘nightwatchman state’ in the nineteenth century and it is still upheld at the present time. At face value, one would therefore be tempted to conclude that Dutch legal and administrative culture are positively inclined towards ‘daring’ private firms and that their initiatives usually will land in fertile soil. Empirical work to verify whether legal practice in The Netherlands lives up to these expectations has thus far been lacking. We shall attempt to redress this situation in this chapter which is based on broad and exhaustive research (Stout and De Jong, 2005). Legal culture is expressed in legal practice. In the literature legal institutions are defined as ‘a set of legal rules with a practice’ (Ruiter, 1993), but where does one find legal practice? We believe that the game theory will provide us with the tools we need to answer this question. First, we shall map out legal practice by applying a game-theory interpretation of legal decisions taken by the government on the transition from telegraphy to telephony. We shall then relate the findings to Dutch legal culture and address the question whether the image of ‘daring’ private firms that is so close to the government’s heart has any basis in reality. Section 2 discusses Dutch legal culture with the aid of some core concepts. The necessary theoretical framework will be derived and operationalised in section 3. First, we will test the applicability of qualitative interpretations of game theory (Kreps, 1990; Tsebelis, 1990; Dixit and Nalebuff, 1991;

328 Helen Stout and Martin de Jong Scharpf, 1997; Aoki, 2001; ten Heuvelhof et al, 2003; Stout and De Jong, 2005) in gaining an understanding of the motives and contributions of the various actors concerned. Only actors taking part in the interactive process associated with government involvement with innovative practices and the resulting products and/or services will be taken into consideration here. A relevant case history will be described in section 4. In the interests of intelligibility, we have chosen a case which will speak to the imagination of the readers and which is delimited in time, namely the transition from (electromagnetic) telegraphy to telephony in The Netherlands in the nineteenth century. The government had a very marked involvement in this technological transition, and tried to influence it in various ways with the aid of formal legal instruments. The game theory perspective developed in section 3 will be used in section 5 to inventory the relevant actors in this case, their strategic motives and tactical objectives during the interaction process and the way they used legal instruments to realise these objectives. The relevant legal relationships between the actors—almost always a government organisation on the one hand and a private innovative entrepreneur on the other—are also represented, and the significance of these relationships is indicated. In essence, these relationships can be understood in terms of positive, neutral or negative stimuli (or incentives) acting on the individual innovators. Finally, section 6 deals with the scope and limitations of the game theory perspective in explaining the role of the law as a provider of incentives governing the behaviour of private individuals in general and technological transitions in particular. It will connect the findings from the case study with the way in which Dutch legal culture was characterised in section 2 and draw conclusions on the extent to which this picture can be adjusted or expanded on to fit the available evidence.

II. CHARACTERISING DUTCH LEGAL CULTURE

Officially the Dutch legal system is known as a civil law system, with a decentralised unitary state. The headlines of the current legal system were introduced under the French occupation in the late eighteenth century when technological and economic developments were lagging behind the rest of Europe. Effectiveness of public policy and infrastructure construction and maintenance in the fragmented Republic of the Seven United Provinces was also vehemently disputed, making the profound constitutional and institutional reform towards administrative centralisation and legal codification popular among many forward-looking politicians and officials (Schama, 1977; Raadschelders, 1998; De Jong, 2002). They eagerly made use of the French occupation to have these reforms implemented once and for all and prepare the impoverished Netherlands for a new era. Halfway through

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the nineteenth century the famous legal scholar and statesman Thorbecke, who had been trained in Germany, amended the constitutional and institutional philosophies in a way as to restore some of the decentralised elements that had been lost under the French (Toonen, 1987). Modern legal theorists would label his ideas as essentially ‘subsidiarist’, but this did not imply the clock was turned back completely. Since then, The Netherlands have internationally been known as a decentralised unitary state, where lower tiers of government have the permission to undertake new activities and tasks unless forbidden or taken over by central government. As regards the role of the state vis-à-vis private enterprises, the Dutch administration has always had the reputation of adopting a strong ‘laissez-faire’ attitude, almost on a par with Great Britain. Holland was then, as now, known as country navigating between the influence of traders and that of (protestant) ministers. This has formally been the case ever since the Dutch Golden Age, although the historian David Landes (1999) has convincingly demonstrated that the same was not true of the then colonised Dutch Indies if such went to the detriment of the economic interests of the European homeland. In recent times, the Dutch legal system has, along with most other countries of the European continent, remained within the civil law camp, but application of its principles has been loosened to increase flexibility for the modern more dynamic times. This is evidenced by the fact that very few if any believe public officials and judges to be merely Montesquieu’s ‘mouth of the law’. It can, for instance, also be observed in the current confusion in the liberalised network-bound industries, where officials speak of ‘regulators’ looking after price and quality levels in the industry, inspired by Anglo Saxon institutional examples. Interestingly, however, the presence of real regulators implies that such bodies have law- and rule-making competencies, which in The Netherlands, as in other civil law systems, they do not have. In effect, formally speaking, the bodies may in their first appearance, look like regulators, but they are not. Their discretion is restricted to interpreting legislation drafted elsewhere and reaching decisions in individual cases. Cultural experts, such as Hofstede (1997), have demonstrated that, on average, countries where civil law systems are in place have higher levels of ‘uncertainty avoidance’ than nations with common law systems. This can be explained with the argument that codified and strict legal structures answer the ‘Continental need for clarity and certainty’ much better than legal environments where decision are made on a case-by-case basis and past examples are no more than indicative (De Jong, 1999). In fact, Van Waarden (1996) has argued that Dutch regulatory style is obviously based on civil law principles, but that its practice is more flexible and adaptive than in Germany because of lower levels of uncertainty avoidance. Hofstede, and other anthropologists such as Hampen-Turner and

330 Helen Stout and Martin de Jong Trompenaars (1993), have qualified Dutch culture as strongly egalitarian (accepting very little difference in the treatment between highly influential and less influential people in society) and universalistic (stressing the equal application of rule-based systems to equal cases, even if this goes against looking at the specifics of each individual case). These qualifications appear very pertinent also to the legal style that is embraced by public officials and legal experts in The Netherlands. One could claim with some justice that cultural characteristics are often very similar to those of Scandinavian countries, especially Denmark, the only difference being that the legal systems of those countries officially constitute a group of their own, the Nordic group (Zweigert and Kötz, 1998), which shows less codification and centralisation, partly because they have never been conquered by the French. Much has also been written about Dutch legal, political and administrative culture as being ‘consensus oriented’, representing the typical values of a pacification democracy where different socio-economic and religious groups had to be accommodated in order to safeguard national peace and stability (Hendriks and Toonen, 1998; Lijphart, 1999). This generic characterisation has, by and large, proven useful, but analysts have been in constant discord on the question whether this national penchant for reaching agreement has had positive or negative consequences for innovation, economic development and institutional effectiveness. Proponents would claim that reaching consensus is time-consuming, but that broad acceptance of the decisions later on in the process makes policy, as a whole, more balanced, fairer and eventually more productive. Opponents would rather argue that Dutch hunger for unanimity makes for a ‘syrupy’ style of decision-making where things move slowly and painfully, necessary choices and adjustments are avoided and/or negotiated and nonsense is eventually agreed on (Woltjer, 2000). On this issue, Hofstede has shown that The Netherlands and Nordic countries have their low scores in common on the ‘masculinity-index’. Femininity reflects a value-orientation focused on care rather than performance, which is amongst other things expressed in the avoidance of tough conflict. Again, whether this ‘softness’ is good or bad news for innovation remains a matter of contention. In the mid 1990s when the polder model seemed to fare well economically the proponents were more vocal; in the less prosperous years before and after this boom, their opponents who favour decisiveness and determination have mostly succeeded in silencing them. The above widely-accepted characterisations of Dutch legal culture are, accurate or not, of a fairly descriptive nature. Especially in such circumstances, when the understanding of the way a society and its institutional framework operate has become such common ground for Dutch and foreigners alike, it is tempting to put this image to the test. The authors have

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done this by making an in-depth study of a historical case where the moves made by legal institutions and their impact on private actors can be neatly demonstrated: they have adopted a game-theory approach to make sense of the way in which public actors in the mid nineteenth century utilise legal instruments towards innovative enterpreneurs in the upcoming telegraphy and telephony industries to serve the ‘public interest’. The authors hope they can demonstrate in an analytical, step-by-step fashion, what public actors ‘really’ do and what motives and interaction rules guide their behaviour. Section 3 will deal with the issue how game theoretic thinking can be applied within a legal context.

III. A GAME THEORY PERSPECTIVE ON THE USE OF LEGAL INSTRUMENTS

Legal instruments influence the options open to actors Legal instruments that are often employed in the granting of permission for the implementation of technological transitions (such as concessions, licences, permits and agreements) have not only a formal legal effect but also a material effect on the parties applying the instruments and the parties in respect of whom they are applied. For example, if new legislation stipulates that a particular service can only be provided subject to licence, then the service provider has to apply for permission for an action that could be freely exercised in the past. If the issuing of the licence takes a relatively long time or is subject to restrictive conditions, freedom of action of the actor in question is limited even further. If, on the other hand, new legislation creates new powers and assigns them to an actor, the freedom of action of that actor actually increases: he is now allowed to do something that was prohibited before. From the viewpoint of the social sciences, it may be said that the new legislation has brought about a change in the options open to the actor in question. In the latter case, the options have widened: the actor is enabled to undertake activities that were not possible before. In the former case, certain freedoms of action that existed before the passage of the legislation in question have now been restricted or removed. The new set of possible actions is always compared with the situation before the change. If for example actors are obliged to apply for a licence for a particular activity when this obligation did not exist in the past, then the freedom of action of actors who wish to carry out this activity is in principle restricted. If a statutory obligation to take out a licence is removed, on the other hand, new options are opened up. If there is an obligation to take out a licence and an individual actor does so, then his arsenal of options is expanded. If a licence is rescinded or expires, of course, the reverse is true.

332 Helen Stout and Martin de Jong Actors’ objectives and tactics Government can influence a technological transition by expanding or restricting the options open to the actors involved in its implementation. Within the framework of this chapter, this influence is regarded as taking the form of (positive or negative) institutional incentives applied by government organs (central government or municipal authorities) to innovative entrepreneurs. There are various possible theoretical approaches to the study of this phenomenon. A choice has been made here to distinguish between material objectives known from public or institutional economics, representing the actors’ wish to survive or expand (eg by maximising profits or budgets, maximising staffing levels or extending competences), and ideational objectives that the actors have been charged or are motivated to pursue on behalf of society and which they describe in their mission statement (provision of high-quality services, equity in the distribution of public values etc). In many cases, there will be a mix of material and ideational objectives at the same time. It is generally recognised that material objectives can co-exist with ideational ones in the private sector. After all, what company does not strive to maximise its profits? There still seems to be a taboo on acknowledgement of the existence of material motives in government among practitioners of many branches of science, with the exception of institutional economics and the theory of public administration. Public servants are not supposed to pursue their own interests. A consequence of the game theory approach taken in the present chapter is, however, that a more realistic view is taken of the behaviour of actors. In particular, it is recognised that even government organs cannot escape a certain degree of self-interest and that private actors can also be motivated by idealistic considerations. The above-mentioned objectives often exist at a fairly high level of abstraction. For the purposes of this study, they are as far as possible concretised in the form of tactics—defined here as a series of actions whereby the available formal legal instruments are used for the attainment of one’s own material and ideational objectives. For example, government organs can use a licensing system as an instrument to limit the uncontrolled growth of a given service, but also as a source of revenue. Some objectives can be translated into several different tactics, while a given set of tactics may sometimes be used to achieve several objectives. Not all actors are able to translate their objectives into tactics with the aid of formal legal instruments. Most of the tactical activity in this sense in the case study described in section 4 comes from government agencies and not from private actors. This is because, certainly in the past, formal legal instruments were the dominant means of control of technological transitions in infrastructure bound sectors. Most companies and individuals were in the initial stages of process or product development, and did not yet have the power to make demands on public actors; the reverse was more likely to be the case. In the present era of increases in scale and globalisation, the situation can be quite different.

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Stated and revealed preference A distinction between stated preferences and revealed preferences is generally drawn in discussions of the objectives of actors in the literature. A study of the way government incentives influence entrepreneurial behaviour could in principle consider both types of preferences. However, it is difficult or impossible to make much use of stated preferences in the historical case study discussed in section 4, since we are constantly dealing here with events involving significant juridical facts in the past. We are no longer in a position to interview the subjects concerned to clarify their intentions. Consideration of revealed preferences, on the other hand, is a feasible approach. Intentions can be revealed by analysis of the formulations used in the text of legislation or other relevant legal documents, in the way organisations are set up and the text of petitions or appeals. Other documents such as policy notes and reports which do not have legal force but throw an interesting light on policy issues can be a useful source of information about material and ideational objectives. Of course, various material and ideational objectives can exist at the same time and can even conflict with one another. Moreover, the objectives may vary in the course of time under the influence of external events or changing public opinion.1

IV. THE TRANSITION FROM TELEGRAPHY TO TELEPHONY

Private introduction of the telegraph The primary initiative for the introduction of the telegraph in The Netherlands came from private companies. It is true that a number of public telegraphy links were established in the period between 1845 and 1854—again on the basis of private initiatives—but these were not sufficient to form a network covering the whole country. The links that were created and exploited only served limited target groups that were large enough to justify their existence. For example, shipping lines, insurance companies and merchants were the main customers of the RTM (Rotterdam Telegraph Company), while it was mainly stockbrokers who made use of the links provided by the HIJSM (Dutch Railway Company) between Amsterdam, The Hague and Rotterdam among other places. The promulgation of the Telegrafenbesluit 1847 (Telegraph Order 1847) by the Crown (without parliamentary involvement) marked the first official recognition of public telegraphy. This stipulated that entrepreneurs required

1 A special form of material objective is the desire to maintain or extend one’s political competence. This is often a case of internecine struggle between various public actors, and will at most have only indirect influence on the private actors involved in technological transitions.

334 Helen Stout and Martin de Jong a licence from the Crown to install or exploit an electromagnetic telegraph. The rates charged were also subject to approval by the Crown. The constitutional situation at that time meant that King William I in person played a key role in drawing up the Telegrafenbesluit and in the licensing. In those days when the doctrine of ministerial responsibility and the primacy of the legislative arm had not yet been developed, the ‘Crown’ really meant the King in person, who was still very much an autocratic ruler. Two motives led to the promulgation of the Telegrafenbesluit. The King wished to control the operation of telegraphs in order to protect public interests. Prevention of misuse of this means of communication was also an important consideration. For this reason, the Telegrafenbesluit included the stipulation that messages had to be recorded. Initially, the government was far from active in this field. It was, for example, slow to respond to applications for permission to build and exploit telegraph links. Decisions could be delayed for years, and applicants were left completely in the dark as to the progress of their application. This dilatory attitude of the government was largely due to distrust of this new means of communication based on various considerations, including political and economic ones. The government feared political agitation, which could be fostered by misuse of the telegraph (Stichting Historie der Techniek, 1993: 278; Ten Brink and Schell, 1954: 22). There was a great deal of political unrest in the middle of the nineteenth century, and it was feared that there were turbulent times ahead unless the government took a firm stand. Moreover, the telegraph was seen as an unwelcome form of competition for the Posterijen (the Dutch Royal Mail), a State monopoly whose proceeds were falling even without attack from this new corner. The consequences of leaving the installation of public telegraphs to private initiative became clear within a few years. Only commercially attractive telegraph lines were constructed, leaving large parts of the country without any telegraph services at all. The lack of a country-wide network began to be felt more and more keenly, since people had become convinced of the benefits the telegraph could bring to trade and industry, the public administration, the police and the armed forces. The conviction grew that the telegraph should be available as a public service to all. The question arose whether the installation and exploitation of telegraph lines should be taken over by the government. On the advice of a committee of experts, the minister of Internal Affairs JR Thorbecke took the initiative to set up a public telegraph company. The committee had observed that the eighty kilometres of telegraph lines in The Netherlands compared very poorly with the existing networks in other countries. It further concluded that a country-wide network would never come about if the telegraph were left in private hands. It followed that the government had a key role to play in the development. A new legal

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framework was urgently needed. The passage of the Telegraafwet of 7 March 1852 filled this gap.

The Telegraafwet (Dutch Telegraph Act) of 1852 The Rijkstelegraaf (National Telegraph System) was set up pursuant to the terms of the Telegraafwet, which stipulated that the construction and maintenance of telegraphs, eg between the main cities was a task for the government. Starting in 1852, key telegraph links were systematically constructed with the ultimate aim of achieving a national telegraph network that would also hook up with the main services abroad. The setting up of the Rijkstelegraaf did not however automatically mean the end of the private companies, though their number did gradually decrease and the government took over the remaining companies step by step. The arrival of the telephone did not initially lead to any changes in the way the Rijkstelegraaf worked. In its early years, the telephone acted as an aid in the transmission of telegrams. Telephone messages were recorded and processed like telegrams. This limited field of application meant that important possibilities of the telephone remained unused. The arrival of the telephone initially sparked an increase in telegraph traffic, which could be considerably expanded at low cost. It was not until 1880 that the idea of making the telephone directly available to the general public arose within the Rijkstelegraaf organisation. A great number of private telephone companies then entered the market in quick succession. One of these was the Nederlandsche Bell Telephoon Maatschappij (NBTM), which soon became one of the biggest suppliers in The Netherlands. It now became important to determine which legal rules governed the use of the telephone. Was a telephone a telegraph and thus subject to the provisions of the Telegraafwet? Or should the telephone be regarded as something different altogether, and thus free from regulation by the Telegraafwet? The Dutch government decided in favour of the former view, which meant that installation of a telephone required authorisation from the Crown. This standpoint was not undisputed, however. In a number of court cases brought to test the scope of the obligations derived from the Telegraafwet, the judge decided that the Telegraafwet of 1852 was not applicable to the telephone. This meant that telephone companies authorised by the Crown to construct and exploit a telephone network under the terms of the Telegraafwet had no powers under this act to compel recalcitrant landowners to permit the construction of telephone networks on, above or through their land. A decision of the Supreme Court of The Netherlands along these lines made amendment of the Telegraafwet 1852 a matter of urgency. The legislative arm had to act to prevent the development of the telephone from being slowed down or prevented by the existing legal framework.

336 Helen Stout and Martin de Jong Lack of decision-making delays development of telephony The amendment of the Telegraafwet 1852 took much longer than had been hoped, however. It was several years after the Supreme Court decision that the legislator finally came into action. Part of the problem was that the government and the parliament could not agree on whether the telephone needed to be legislated for in a separate act or whether it would be sufficient to amend the existing Telegraafwet. There was also disagreement on the content of the legislation. Some thought that public exploitation of the telephone on the model developed for the telegraph was the way forward, while others were in favour of private exploitation. The continuing uncertainty as to the content of the new telephone legislation and the threat of nationalisation of the entire system by analogy with the telegraph system in the near future made the private telephone companies much less willing to invest than they had been in the past. This applied both to local and to trunk services. The uncertainty at the local level led to a marked reduction in the service level provided by private telephone companies, who argued that there was little point in investing if there was a real chance that the whole system might be taken over by the government. Finally, the combination of antiquated and underdeveloped telephone networks and high rates was too much for many municipal authorities. A number of cities, including Amsterdam, Rotterdam and The Hague, decided to set up their own municipal telephone services. The development of long-distance telephony by private telephone companies also failed to take off. The main problem here was that the national authorities, unlike the municipal councils, actively discouraged private initiatives at this level. Fearing that telephony would develop in competition to telegraphy for long-distance applications, the minister of Water Management, Trade and Industry had adopted the standpoint from the beginning that long-distance telephony was a matter for the national authorities and not for municipalities. However, the lack of an undisputed legal framework for telephony meant that government exploitation was not yet an option. In the meantime, pending the definitive resolution of the issue, the State only issued concessions for long-distance telephony in small numbers and after long delays. Moreover, such concessions as were issued were only short-term so that the authorities could continue to monitor events. The conditions under which the concessions were granted were also very stringent. It was not unusual for the government to oblige the telephone company to guarantee the profits of the corresponding telegraph traffic, or to pay half its own receipts to the State. As a result, the telephone companies did not dare to invest very much in the network and in the quality of the service, and private exploitation of long-distance telephone services dwindled away to nothing in less than ten years. The government then assumed responsibility for all long-distance telephony throughout the country, combining the various services in the Rijkstelefoon (the National Telephone System).

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The 1904 Telegraaf- en Telefoonwet (Dutch Telegraph and Telephone Act) The legislation governing both telegraph and telephone services was finally passed on 11 January 1904 as the Telegraaf- en Telefoonwet 1904. The Act states explicitly that it applies both to the telegraph and to the telephone. The point of departure of the new Act was the primacy of the national authorities, which were in principle supposed to take responsibility for the construction and exploitation of telegraph and telephone systems. In the exceptional case of private construction and/or exploitation, the company in question required a concession from the Crown. The authorisation of the Telegraafwet 1852 was thus replaced by a concession. This was intended as a clearer sign that the construction and exploitation of telegraph and telephone systems were intended to serve the public interest. In the government’s opinion, the use of a concession rather than an authorisation in this legal construction indicated that the facilities in question were in principle the responsibility of the authorities (Ten Brink and Schell, 1954: 306). This is reflected by the statutory duty of the concessionaire to provide the service on request (Enserinck, 1933: 57). V. THE TRANSITION FROM TELEGRAPHY TO TELEPHONY: APPLICATION OF THE GAME THEORY FRAMEWORK

Definition of actors and their objectives and tactics The logical first step in the analysis of the case described above in terms of game theory is the identification of the players—or actors, as we will call them here. The various actors and groups that may be distinguished on the basis of the case material are presented in Tables 1a and 1b. The next step is the identification of the preferences of each actor. The nature and quality of the empirical material available does not allow these preferences to be quantified or ordered. Moreover, it is uncertain whether the actors described would, in reality, have wished, or been able, to arrange these preferences in any kind of order. The preferences—or objectives, as they are called here—of the various actors are also given in Tables 1a and 1b. It may be noted that these objectives are ‘revealed preferences’ (see section 3) inferred by the authors from the relevant sources; they may be ideational or material in nature. The ideational objectives are explicitly stated in the text of the relevant official documents, including formal legal decisions. The actors’ material objectives are more difficult to track down. While they are based on empirical data, they are in general not explicitly stated but have to be inferred indirectly by systematic interpretation of the historical course of events. Finally, the third column of these tables contains the tactics used by the actors to achieve their objectives. These tactics are the series of actions

338 Helen Stout and Martin de Jong performed by the actors with the aid of the formal legal instruments at their disposal in order to achieve their ideational and material objectives in competition with the other actors. The various objectives in question are linked to a number of different tactics in a flexible and context-dependent manner. The tactics found may relate to several objectives, and a single objective may sometimes be achieved by several different tactics. In other words, there is often not a one-to-one relation between objectives and tactics. As mentioned above, the objectives are not arranged in any hierarchical order. This is a departure from the general game theory approach in which an unambiguous pay-off structure is usually determined for each actor. Hence, the expected yield per action (another component of the usual game theory approach) is not described either. Tactics are not given for the private actors presented in Table 1a, since they are usually acted on by the available legal instruments rather than using them as tools.

Table 1a Private actors in the transition from telegraphy to telephony Private actors Telegraphy companies Telephony companies Landowners Users of telephony services

Objectives Profits from telegraphy Profits from telephony Profits from the sale or lease of land Telephone connection for each user High-quality service at low rates for each user

Tactics

Table 1b Public actors in the transition from telegraphy to telephony Public actors King William I

Minister of Internal Affairs

Objectives Maintaining and/or extending powers of the Crown in relation to those of parliament (‘ruling by decree’) Control of message traffic Achieving countrywide coverage Securing profitability of exploitation of telegraph system

Tactics Promulgation of Telegrafenbesluit 1847 Licences on condition that messages sent were recorded State responsibility for construction and maintenance of telegraph network Establishing legal monopoly for Rijkstelegraaf on basis of Telegraafwet 1852 Purchase of existing companies by the State (continued on next page)

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Table 1b (continued)

Public actors Minister of Water Management, Trade and Industry

Objectives

Tactics

Renaming telephone ‘voice Legal control of telephone system and incorporation in telegraph’ existing legal framework Delaying decision-making on telephony issues or processing Protecting interests of of applications for telephony Rijkstelegraaf against concessions by the government infringement by telephony Requiring concession for each separate (long-distance telephony) link Concession on condition that there is at least a parallel link via office of Rijkstelegraaf (long-distance telephony) Concession on condition that half of profits are paid to the government (long-distance telephony) Concession on condition that telephone company guarantees yield of telegraph traffic on same line or indemnifies Rijkstelegraaf against loss of revenue

Supreme Court

Municipalities

Proving/confirming independence from legislative and executive arms Connection for all High-quality telephony services at reasonable rate for all (local telephony) Control of telephony services Prudent approach, keeping all options open for future Protecting municipal autonomy in relation to central government

Limited life of concession (longdistance telephony) Preventing application of Telegraafwet 1852 to telephony

Concession on condition of duty to connect users (local telephony) Concession on condition that maximum rate is fixed (local telephony) Limited life of concession (local telephony) Concession on condition that ownership passes to municipality on expiry (local telephony) Making concessions dependent on approval of municipal council despite primacy of Crown under terms of Telegraafwet 1852

340 Helen Stout and Martin de Jong Explanatory comments on identified tactics of public actors The following comments may be made in connection with the tactics mentioned in Table 1b. Only those tactics that require further explanation are discussed. Renaming telephone as ‘voice telegraph’ The Minister of Water Management, Trade and Industry used various tactics to guide the development of the telephone in a favourable direction (for him). His prime concern in this connection was to protect the interests of the Rijkstelegraaf. In the first instance, he designated the telephone as a ‘voice telegraph’ so that it fell under the existing legislation that had already been developed to regulate the construction and exploitation of telegraph systems. One consequence of this line of reasoning was that the construction and exploitation of telephone connections also required authorisation by the Crown. He further tried to make use of the provisions of the law to delay the general introduction of the telephone. Delaying decision-making on telephony issues and processing of applications for telephony concessions by the State Telephone concessions, in particular where long-distance telephony was concerned, were only granted with long delays. The uncertainty about the applicable legal framework was utilised to gain even more time. The conditions of the telephone concessions that were granted were largely chosen to protect the interests of the Rijkstelegraaf (the obligation on the telephone company to indemnify the latter if loss of revenue could be demonstrated is a case in point). Granting of telephony concessions on condition that the telephone company guarantees volume of telegraph traffic on same section or indemnifies telegraph company for loss of business It was initially feared that the telephone would completely displace the telegraph. The Minister of Water Management, Trade and Industry, supported by the management of the Rijkstelegraaf, expressed serious concerns about the competition to be expected from long-distance telephony. Since it was hardly possible to delay decision-making on the granting of concessions any further, the only option open to the minister was to grant the telephone concessions under terms that favoured the Rijkstelegraaf as much as possible. For example, the concessionaire was obliged to guarantee the revenue from telegraph traffic on the same section (De Wit, 1998: 93).2

2 As time went on, other services developed that represented an increasing threat to the telegraph, such as the postal and railway networks.

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Limiting application of Telegraafwet 1852 to telephony The applicability of the Telegraafwet 1852 to telephony was subject to strong attack in the courts, not least because of the limitations of property rights arising from this Act. Finally, a decision of the Supreme Court limited the scope of the Act, declaring that telephone companies authorised to construct and exploit a telephone network under the terms of the Telegraafwet had no powers under the Act to compel landowners to permit the construction of telephone networks on, above or through their land. Faced with this decision, the legislators felt obliged to pass the Telegraaf- en Telefoonwet 1904. Placing of conditions on concessions by municipal councils despite primacy of Crown according to Telegraafwet 1852 Municipal councils, keen to protect their autonomy, were reluctant to accept the applicability of the Telegraafwet 1852 to telephony. Since the legal situation was so unclear, the municipal councils regarded themselves as the proper authority to grant telephone concessions, largely because the construction of a telephone network inevitably involved the use of land belonging to the municipality. As a result, companies wishing to install and exploit a telephone network found in practice that they needed to get permission from two levels of government, the municipality and the State.

Determination of crucial legal relationships and incentives for technological innovators While a large number of tactics deployed in particular by public actors are distinguished above, only a certain proportion of these measures have a direct influence on the options open to individuals and companies who wish to supply technologically innovative processes and products to the market. Table 1c presents the three key legal relationships that may be distinguished in the case described in section 4. These are given in the first column of the table. In all three instances, a public actor performs certain legal acts which impinge on private actors. A legal relationship may be established in various ways, eg by means of an authorisation. The second column of the table gives the formal legal instrument governing the relationship in question, while the final column gives the authors’ estimate of the nature of the incentive arising from this instrument, ie the material effects of application of the instrument on the parties responsible for the technological transition and the resulting applications. Such an incentive may be positive, negative or neutral. If the overall effect is positive, the actions of the authorities tend to stimulate innovation, while if it is negative the reverse is the case. In the case considered here, it is rarely if ever possible to give a quantitative estimate of the magnitude of the incentive: the empirical material and the nature of the formal legal instruments in question do not lend themselves to this.

342 Helen Stout and Martin de Jong Table 1c Relevant legal relationships in transition from telegraphy to telephony Relationship Telegraphy companies versus minister of Water Management, Trade and Industry Telephony companies versus minister of Water Management, Trade and Industry Telephony companies versus municipal councils

Legal instrument Authorisation by the Crown pursuant to Telegraafwet 1852

Nature of incentive Negative

Authorisation by the Crown pursuant to Telegraafwet 1852

Negative

Concession from municipal council

Positive*

* In any case, the telephone companies can start construction and exploitation

The authorisation requirement contained in the Telegraafwet 1852 represents a barrier to both telegraphy and telephony companies, tending to slow down or hamper their activities. This is particularly true of long-distance telephony companies, as a result of the onerous conditions associated with the authorisation they need to acquire (see the tactics of the Minister of Water Management, Trade and Industry in Table 1b). Initially, municipal involvement was less burdensome for telephone companies. While a barrier was also erected to the establishment of local telephony networks—since a concession has to be obtained by the company exploiting the service—the conditions were less onerous than those for long-distance telephony. There were two causes for this: the Rijkstelegraaf had less to fear from companies offering local telephone services, while the powers of the Minister of Water Management, Trade and Industry did not extend to municipal matters. On balance, therefore, the incentive provided by the municipal authorities may be characterised as mildly positive.

Summing up Neither the case history of section 4 nor its qualitative analysis on the basis of game theory in section 5 gives a very positive picture of the way in which the authorities (in particular central government) used legal instruments to influence the operation of innovative companies. The effect of this on the activities of innovative individuals and companies is difficult or impossible to quantify, especially when the case involved occurs in the past. Nevertheless, it seems extremely likely that the technological transitions described here were slowed down or made more complicated by government involvement. The fact that government agencies

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limit the freedom of action of private individuals and companies need not be a problem as such: after all, one of the main tasks of government is to use legal instruments to restrict certain activities of private individuals or even to forbid them if the public interest is served by doing so. This applies to infrastructures as well as to other sectors. In other words, limiting private freedom of action can be justified if it leads to important public benefits such as better quality of service, universal accessibility, security and preservation of public order. Many of the negative incentives found above, however, were not aimed at achieving public benefits but were due to the fact that the authorities themselves had financial and organisational interests in the sector. In other words, material as well as ideational objectives were involved and the public could no longer rely on the impartiality of the authorities. Analysis of the case studied shows that: • • •

authorities may be sole or part owners of enterprises that compete with the technological innovators for the supply of services; authorities may wish to take over profitable innovative private enterprises in order to swell the government’s funds; and authorities may charge concessionaires heavy fees to solve their own financial problems.

The authorities or the private parties elevated to public status are under great temptation to use legal instruments to improve their position. Experimental and innovative enterprises will then have very little chance of being treated on an equal footing with the established interests, much less of being given the benefit of the doubt. Thus, not only do their early stage of development and limited means make them vulnerable in the struggle for competitive edge against bigger competitors with a more stable financial position and an established network of suppliers, producers, distributors and consumers, but in the case discussed here they may also have the authorities against them. To sum up, it may be said that the course taken by the technological transition discussed in this chapter and the role played by the authorities seem to confirm the view that self-interest may to some degree lead to benign results in the marketplace, but produces nothing but pathology in the public sphere. The findings are not isolated. In the autumn of 2004 we completed a study on five other transitions besides the transition from telegraphy to telephony, viz: from (coal-powered) gas light to electric light, from radio telephony to radio broadcasting, from ether television to cable television, from analogue to digital ether television and from gas-powered heat to hydrogen-powered heat. The case studies, dating from different eras, delivered quite similar results (Stout and De Jong, 2005).

344 Helen Stout and Martin de Jong VI. CONCLUSIONS

The reader of the above chronological account of the way government agencies dealt with technological innovation cannot escape an indefinable feeling of unease. On at least two separate instances, the authorities use legal instruments to impede the progress of private parties who, driven by a combination of curiosity, enthusiasm, entrepreneurship and a wish to make profits, try to launch new technologies on the market. The first instance is when the rise of the telegraph threatens the financial position of the Posterijen (the Dutch Royal Mail), and the second is when the burgeoning of telephone lines seems to be eroding the position of the state-owned Rijkstelegraaf. Can this course of events indeed be characterised as exemplary of a legal culture that promotes laisser faire policies, dealing with different players on strongly egalitarian basis and applying universal rules to all in equal or similar ways? While it seems fairly obvious that these public bodies are mainly out to protect their own privileged position, they nevertheless label their actions as being ‘in the public interest’. Apparently, there is a lot more to the story than was mentioned in section 2 on Dutch legal culture as we know it from the literature. Only the chacterisation of The Netherlands as a decentralised unitary state seems largely to correspond with reality: the municipalities were allowed to undertake or allow innovative activities as long as this was not forbidden by central government, which opened at least some options for entrepreneurs. A case history of this kind, no matter how thorough it may be, cannot go much further than a description of the various events in sequence. Here, a first step has been taken towards application of a mild form of qualitative game theory to a case in legal sociology in order to gain more systematic insights into the motives and tactics of the competent authorities as employed in relation to private parties, in this case technologically innovative companies. Analysis of the case in terms of (1) actors, (2) their ideational and material objectives, (3) their tactics, ie the way they use legal instruments to achieve their aims, (4) the legal relationships between the government body using the instrument and the private party affected by it, (5) the specific legal instrument used, and (6) the nature of the incentive produced (positive, negative or neutral) helps to make a number of elements of the case history explicit. It also changes the above-mentioned vague feeling of unease into a clearer understanding of the pattern of relationships and interactions involved, and of the ways in which the government can expand or limit the private individual’s options. Such dissatisfaction can be channelled: actions by government bodies in which ideational objectives are linked with material motives in a non-transparent manner carry a major risk of improper relations. These insights can help in the development of effective institutional modifications.

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When the results from this case study are seen as demonstrative of Dutch legal practice towards private actors promoting technological transition, the picture appears rather disheartening for innovators, especially small ones. The deployment of legal instruments in a ‘soft’, ‘consensus-oriented’ manner favours established industrial interests and the self-interest of certain involved governmental institutions more than those of unknown newcomers. It is highly unlikely that big traditional organisations with high financial turnovers but low innovativeness would support policies where their advantages are dispensed with. If they have a place at the negotiation table and new entrants do not, it is a rational step for them to make this entry more difficult through various legal and other means. If consensus is required among vested interests, both public and private, they effectively all have vetopowers against change. For the position of the still uninvolved start-ups, a high toll is paid. These promising, but institutionally weak actors have to fight uphill battles much more frequently than in legal environments where smooth relations between partners are less valued. As a result, technological breakthroughs elsewhere may in fact be easier in Anglo Saxon countries, where competition is more valued than in The Netherlands. Furthermore, in countries such as Belgium and France, where the state plays a more active role in picking up technological innovation through helping larger corporations in their innovation, transitions may arise more easily than in The Netherlands. It is still too soon to conclude that the characteristics of the Dutch legal and administrative culture explain the lack of innovativeness, but it certainly is time to raise that question. DOCUMENTS CONSULTED IN CHRONOLOGICAL ORDER Koninklijk Besluit (Royal decree) of 8 December 1847, No 79, containing measures concerning the introduction of electromagnetic telegraphs (the Telegrafenbesluit). Staatsblad (Bulletin of Acts and Decrees) 1847, 72. Beschikking (Order) of the minister van Internal Affairs of 13 April 1850, No 121, Section 3, B, concerning the nomination of a Commission to study the framework to be adopted by the Government for general introduction of electromagnetic telegraphs, together with draft regulations concerning the use of such telegraphs. A report of the Commission to the Minister of Internal Affairs is appended. Act of 7 March 1852 concerning regulation of society by electro-magnetic telegraphs (the Telegraafwet), Staatsblad (Bulletin of Acts and Decrees) 1852, 48. Koninklijk Besluit of 13 March 1852, No 16, authorising the Minister of Internal Affairs to fund the expenses of the Rijkstelegraaf. (This Order frees the funds required for the implementation of the Rijkstelegraaf.) Oorzaken van de achteruitgang of onbeduidende vooruitgang van het telegraafverkeer in de laatste jaren (Reasons for the regression or insignificant progress of telegraph traffic of recent years), Policy note of 10 April 1895 commissioned by the Director-General of Posts and Telegraphy. The DG had sent a circular dated

346 Helen Stout and Martin de Jong 21 March 1895 to the directors of all Rijkstelegraaf offices, asking them to report on the development of telegraph traffic. This policy note was written on the basis of the replies received in response to this circular. Archives of the Hoofdbestuur der Posterijen en Telegrafie for the period from 1893 to 1926. Dutch National Archives, Access No 2.16.21, Inventory No 169. Act of 11 January 1904, concerning the construction, exploitation and use of telegraphs and telephones (the Telegraaf- en Telefoonwet 1904). Staatsblad (Bulletin of Acts and Decrees) 1904, 7. Collette, AER, (1905) Wet van den 11 Januari 1904 (Stbl. No 7) betreffende aanleg, exploitatie en gebruik van telegrafen en telefonen. Met algemeene toelichting en aanteekeningen, (’s-Gravenhage). REFERENCES Aoki, M (2001) Toward a comparative institutional analysis (Cambridge, Mass, Massachusetts Institute of Technology) Brink, EABJ ten and Schell, CWL (1954) Geschiedenis van de Rijkstelegraaf 1852– 1952 (’s-Gravenhage, Staatsbedrijf der Posterijen, Telegrafie en Telefonie). Dixit, AK and Nalebuff, BJ (1991) Thinking strategically; the competitive edge in business, politics, and everyday life, (New York/London, WW Norton & Company). Hampden-Turner, C and Trompenaars, A (1993) The seven cultures of capitalism (New York, Doubleday). Hendriks, F and Toonen, T (eds) (1998) Schikken en plooien. De stroperige staat bij nader inzien (Assen, Van Gorcum). Heuvelhof, E ten, de Jong, M, Kuit, M, Stout, H (2003) Infrastratego. Strategisch gedrag in infrastructuurgebonden sectoren (Utrecht, Lemma). Hofstede, G (1991) Cultures and organizations, Software of the Mind (London, McGraw Hill). De Jong, M (1999) Institutional transplantation. How to adopt good infrastructure decision making ideas from other countries (Delft, Eburon). —— (2002) ’Rijkswaterstaat: a 1798 French transplant in the Netherlands, two centuries later’, in M de Jong, K Lalenis and V Mamadouh (eds), The Theory and Practice of Institutional Transplantation; Experiences with the Transfer of Policy Institutions (Dordrecht/Boston/London, Kluwer Academic Publishers). Kreps, DM (1990) Game theory and economic modelling, Clarendon Lectures in Economics (Oxford, Oxford University Press). Landes, David (1999) The Wealth and Poverty of Nations: Why Some Are So Rich and Some So Poor (New York, WW Norton & Company). Lijphart, A (1999) Patterns of democracy; governance forms and performance in 36 countries (New Haven/London, Yale University Press). Raadschelders, J (1998) Handbook of administrative theory (New Brunswick, Transaction). Ruiter, DWP (1993) ‘Institutional Legal Facts. Legal Power and their Effects, Series Law and Philosophy Library’, Vol 18, (Springer). Schama, S (1977) Patriots and liberators (New York, Knopf). Scharpf, FW (1997) Games real actors play; actor-centered institutionalism in policy research (Oxford, Westview Press).

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Stichting Historie der Techniek (1993) Geschiedenis van de Techniek in Nederland. De wording van een moderne samenleving 1800–1890, (Zutphen, Walburg Pers; Part IV Delfstoffen, Machine- en Scheepsbouw, Stoom, Chemie, Telegrafie and Telefonie). Stout, H and de Jong, M (2005) Over spreektelegraaf en beeldtelefoon. De rol van de overheid bij technologische transities in infrastructuurgebonden sectoren (Utrecht, Lemma). Toonen, TAJ (1987), Denken over binnenlands bestuur (’s-Gravenhage, VUGA). Tsebelis, G (1990) Nested games. Rational choice in comparative politics, (Berkeley/ Los Angeles/Oxford, University of California Press). Waarden, F van (1996) Regulation, competition and innovation (Adviesraad voor het Wetenschaps- en Technologiebeleid). Wit, O de (1998) Telefonie in Nederland 1877-1940. Opkomst en ontwikkeling van een grootschalig technisch systeem, (thesis Delft University of Technology 1998, Amsterdam, Otto Gramwinckel Uitgever). Woltjer, J (2000) Consensus planning, (London, Ashgate). Zweigert, K and Kötz, H (1998) An introduction to comparative law, third revised edition, (Oxford, Clarendon Press).

13 Early Intervention and the Cultures of Youth Justice: A Comparison of Italy and Wales STEWART FIELD AND DAVID NELKEN

I. INTRODUCTION

S

ome leading scholars draw a contrast between what they see as ‘American’ and ‘European’ ways of law (Kagan, 2001; Kagan this volume). But, whatever the other problems of using such broad distinctions (Nelken, 2003), one definite drawback is that of obscuring the considerable differences present within Europe itself. This is easily seen if we consider competing classifications such as that between Anglo-American and Continental legal systems, whereby England and Wales is seen as in some sense ‘outside’ Europe! The research on youth justice presented here suggests the need to modify, rather than reject, Kagan’s choice to include England and Wales as an example of European Ways of law. As he would hypothesise, England and Wales does have more space for government welfare initiatives than in the (contemporary) United States. At the same time however, as we shall show, it combines this with an effort to mobilise individual and ‘community’ responsibility that has more in common with the United States than Continental Europe. Understanding, explaining and evaluating such differences must involve considering not only the ‘law in books’ but also the ‘law in action’, and is all the more important at a time when there are increasing attempts to harmonise legal systems in Europe at the same time as such aspirations are becoming more controversial. A comparative sociology of law needs to learn from, but also go beyond, the best work in comparative law (Damaska, 1986) so as to show how legal practices are anchored in the history, social structure and culture of particular societies. But it will also seek to examine how methods of law making and dispute handling not only reflect but also help transform the societies in which they operate (Chase, 2005), and that they are often or even typically also influenced by developments in other places.

350 Stewart Field and David Nelken The difficulties of organising comparative research projects should not be underestimated. In part because of the lack of good empirical socio-legal work in some European countries, there have been few attempts at collaborative cross—cultural analyses using detailed interviews or case-file analysis. There are also many linguistic and conceptual traps for the unwary (Nelken, 1997). But to a large extent these obstacles can and will be overcome. This chapter presents a study of differences in systems of youth justice within Europe, focusing on England and Wales and Italy, as an attempt to show the potential of this sort of comparative, empirically-informed sociolegal research.1 It contributes to a growing body of comparative work specifically on youth justice (see for example Cavadino, 1996; Winterdyk, 2002; Muncie, 2005: 204). But at a broader theoretical level it reflects growing interest in the ‘receptivity’ of particular societies to particular ways of constructing crime problems and the social/cultural `conditions of existence’ which make their penal strategies possible (Garland, 2000: 354).2 It has often been suggested that the culture of youth justice in England and Wales is out of line with much of Continental Europe (and perhaps even Scotland) (Muncie, 2004). For example, youth justice in other European countries has been said to start from very different assumptions about the criminal responsibility of young people (Zedner, 1998:170). Several European jurisdictions are said to be much clearer in their primary stress on the welfare of the young person (see Cavadino (ed), 1996 and Patrignani and Villé, 1997). This contrast seemed worthy of closer—and empirical—investigation. We chose to compare England and Wales with Italy because we had strong indications that the two youth justice cultures seemed to be going in different directions. This was most obvious in the different priority given to ‘early intervention’ in both systems.3 In England and Wales from the mid 1970s up until 1992/3 it was largely assumed that state intervention through the criminal justice was ineffective 1 Our empirical study of South Wales was financed by the Economic and Social Research Council in the United Kingdom (Reference number R000239418), and the ongoing research in Italy by the Ministry for the Universities. The research team for the UK was led by Dr Stewart Field, Professor David Nelken and Professor Mark Drakeford, and our thanks go to Ruth Holgate and Vincenzo Scalia as principal research associates, to Michele Mannoia, Roberto Rao, Francesa Rossi, Letizia Zanier and Judge Petro Merletti for data collection in Italy and to Felicity Holgate and Riccardo Montana for additional research assistance. 2 Recent work in comparative criminology has already shown a number of ways in which the social construction of problems and solutions in relation to crime may be highly culturally specific, linked to broader aspects of social and political cultures (Brants and Field, 2000; Crawford, 2000; Nelken, 1994: 221; 1997: 562-63; 2000; Zedner, 1995). 3 We drew our samples for this comparison from South Wales on the one hand and Emilia Romagna on the other, mainly for pragmatic reasons of research access. Emilia Romagna is an area of Northern Italy which, like South Wales, has a mix of small cities and rural areas, and, unlike many parts of southern Italy, has a high level of economic well being and administrative efficiency. In so far as an argument is developing that Wales may have a youth justice culture that has partly resisted some of the changes introduced by recent legislation, the contrasts that we draw in this chapter might have been even more marked had our sample been drawn from at least some English regions (see Cross, Evans and Minkes, 2003)

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or harmful: it tended to increase the social exclusion and marginalisation of young offenders and thus the prospects of re-offending. Accordingly, attempts to divert children and young people away from the criminal justice system in general—and custody in particular—were promoted. But, from the mid 1990s onwards, a dramatic reversal of policy led to a renewed emphasis on the need for an early state response through the criminal justice system. Accordingly major legislation has been introduced limiting the use of diversionary filters and promoting the use of formal intervention (Crime and Disorder Act 1998, Youth Justice and Criminal Evidence Act 1999). In apparently sharp contrast, in Italy, even before reforms introduced in 1989, few young people were being sent to prison because prosecutors and judges often used techniques bordering on legal fictions to avoid holding them responsible for their misconduct. But in 1989 a new Code of juvenile criminal procedure was introduced which created and institutionalized an even broader range of methods for diversionary disposal with the strategic aim (largely achieved) of ensuring that young people were not stigmatised by the criminal justice system and certainly did not end up in prison (Nelken, 2005, 2006a, 2006b). In Italy, criminal sanctions may only be used from 14 years old and the available statistics suggest that there are relatively few young people under 18 in custody: roughly 2,000 sentenced to prison each year and about 500 inside at any one time (most of these only while they await trial). This figure has been declining steadily since the 1960s when around 7,000 were being sent to prison annually (Gatti and Verdi, 2002, discussed in Nelken, 2006a, 2006b). In England and Wales, criminal sanctions are available from 10 years old, more than 6,000 are incarcerated each year and the number of young people aged 12-17 in custody has recently passed the 3,000 mark (Youth Justice Board, 2004; Bright, 2005).4 Such criminal and judicial statistics must be seen as social products that require careful interpretation in the light of the legal and broader cultures that have produced them (Nelken, 1997: 563). Our first (and most basic) research objective was to find out whether, comparing like with like, the Italian system was in fact less interventionist or punitive and to do this we needed to get behind those figures to compare diversionary and disposal practices on the ground in the two jurisdictions. Did Italian diversionary policy really apply to the kinds of offenders and offences who would be routinely prosecuted in South Wales, or were the differences explained by different types of cases coming into the system? If there were different types of response, what were their limits? Did particular social groups receive a 4 Statistics suggest that in Italy there are approximately 3.4 million young people aged 12–17 (4.5 million aged 10–17) while the equivalent figure in England and Wales is 4.2 million (5.5 million aged 10–17): see www.demo.istat.it for Italy and www.statistics.gov.uk/popest and www.statistics.gov.uk/statbase for England and Wales. Taking 500 and 3,000 as the numbers in custody at any one time gives a custody rate of 14.7 per 100,000 young people aged 12–17 in Italy and an equivalent rate for England and Wales of 71.4.

352 Stewart Field and David Nelken more punitive response? From there the aim was to develop explanations of any (possible) differences. If limited intervention is the norm in Italy, what promotes or enables this: for example what part is played by differences in institutional or cultural relationships, professional roles, assumptions about the criminal responsibility of young people or the threat of youth crime? And ultimately we will be seeking to evaluate consequences: if Italian youth justice is less interventionist, what are the perceived effects, positive and negative, for social exclusion, crime management and victims?

II. RESEARCH METHODS

Comparing patterns: case file analysis and gathering statistical data To address these issues, a comparative quantitative and qualitative profile of patterns of diversion and disposal in the two criminal justice systems was first established. A closed case-file sample was constructed to provide a reasonable match with one already existing from Emilia Romagna (gathered in the course of previous research into a variety of juvenile tribunals in Italy carried out by David Nelken and his collaborators and financed by the Italian Ministry for the Universities). This was not a random sample of all cases coming into the system but a sample of 150 cases, 75 of which ended in conviction and 75 of which ended in the application of a ‘diversionary filter’ (25 of each of the three main filters).5 Data had been collected on type and circumstances of offence, the offender’s personal and family background, previous record and case assessments by magistrates and social workers. To best match the existing Italian sample, in South Wales we sought samples of cases dealt with by the major forms of disposal: 15 of each of the main sentence disposals and 25 each of NFAs (no further action), reprimands and final warnings. We took case-files from each of seven police divisions and Youth Offending Teams in proportions that corresponded approximately to the volumes of cases actually dealt with by these areas.6 With some shortfalls where certain areas were not using particular disposals this produced 235 cases. Similar data to that existing from Italy was collected. Randomness was achieved by taking the first instances after 1 April 2002.

5

The various diversionary filters are described below. As will be explained in greater detail below, Youth Offending Teams are multi-disciplinary groups set up by the Crime and Disorder Act 1998 consisting of seconded social workers, police officers, probation officers, health and education workers. They have primary responsibility for delivering community penalties (social interventions in the community), advising sentencers and more broadly preventing youth crime. 6

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Semi-structured interviews Data on actors’ reasoning and perceptions of early intervention was provided in part by file-based evidence such as pre-sentence reports but this was supplemented by semi-structured interviews. In Wales we conducted 56 interviews (with 60 participants). These involved operational police officers with special responsibility for dealing with youths, police officers seconded to Youth Offending Teams (usually abbreviated to YOTs), their Operational Managers and other team practitioners (probation officers or social workers). In addition we interviewed local lay Magistrates dealing with Youth Court cases and their Legal Advisers as well as Crown Prosecutors specialising in youth justice. In Italy, 17 semi-structured interviews were conducted with social workers, public prosecutors, pre-trial judges, court presidents and defence lawyers, all with particular experience of, and responsibility for, young offenders. In both countries the interviews ranged from 45 minutes to one and a half hours using similar semi-structured questions and the discussion of a series of hypothetical cases or vignettes.7 Practitioners were asked to suggest how they would expect the particular fact situation to be dealt with within their jurisdiction. This chapter summarises our initial analysis of the data. Detailed and systematic case-file comparison is ongoing and the interview accounts given by actors within the systems are being supplemented by analysis of the legal framework, official policy documentation and discussion, political debate and media coverage. Some of the judgements may require some refinement and qualification in the light of that analysis. In order to give as full a flavour as possible of the arguments that we are exploring in the space available, what follows is a broad summary of data with little direct quotation. We start by outlining the legislative and policy context.

III. DIVERTING AND INTERVENING IN WALES AND ITALY

Early Intervention and the ‘New’ Youth Justice in England and Wales The British Labour Government’s current approach to youth justice was introduced through the Crime and Disorder Act 1998 and the Youth Justice and Criminal Evidence Act 1999 which now set out the basic legal framework. Under these provisions young people can be convicted of crimes from the age of 10 provided only that the courts are satisfied that they have the relevant mental element at the time of the offence. Diversionary filters e