Brian Flanagan (National University of Ireland, Maynooth, Faculty of Law) has posted State-Equivalent Union Law and Democratic Legitimacy: A Dahlian Diagnosis on SSRN. Here is the abstract:
This paper reconsiders the EU’s democratic deficit by distinguishing ordinary transnational cooperation from state-equivalent Union law. The EU is not a state, but it can generate coercively backed norms that alter the legal position of natural persons over a member state’s opposition. Where Union law has this character, its legitimacy cannot be explained either by features internal to the Union, such as procedural fairness or demoicratic solidarity, or by appeal to a mutually advantageous inter-popular bargain. It requires an account of how law made through Union procedures can be attributed to the peoples subject to it as law of their own respective making. Drawing on Robert Dahl’s early account of procedural democracy, the paper argues that the political equality on which democratic self-government depends need not require equal influence over outcomes. It may instead require equal standing with respect to the procedures through which outcomes are determined. On this view, state-equivalent Union law may be legitimate without a pan-European demos, but only where each member-state people endorses Union lawmaking as an extension of its own representative self-government. The EU’s democratic legitimacy is therefore best understood not as a single Union-wide property, but as a demos-by-demos question of procedural authorship.
Highly recommended!
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