A Crisis of Executive Managerialism in the EU: No Alternative?

Abstract

Against a backdrop of rapidly evolving crisis management in the European financial and sovereign debt crisis this essay aims both to explore and to re-consider the role of law in the EU integration process: What did law accomplish? Where did it fail? What is law going to endure? What kind of future can it envisage? The essay traces back the evolution of the law-politics relationship in both EU legal scholarship and practice from the foundational period of ‘integration-through-law’ to the advent of ‘new governance’ in the EU, and finally to the current deep transformations of EU law in new economic governance and the financial crisis. The centrality of law as ‘both the object and the agent’ of European integration, and the legal enshrinement of EU’s economic constitution has recently neglected the weight of ‘the social’ in the societies of post-war Europe, a failure which was to become detrimental to both domestic social stability and the legitimacy of integration. Attempts to cure Europe’s social deficit by re-conceptualizing the notion of law as new governance have widened the theoretical perspective of EU legal scholarship. Yet new governance has not delivered more social democracy and justice in Europe in practical terms, and continues to suffer from the methodological problems of its ‘definition-by-contrast.’ These problems re-emerge in current new economic governance, which Europe’s crisis management is generating. This hybrid arrangement of hard and soft law instruments has, to date, been economically unsuccessful and socially disastrous, especially in the South of Europe. Equally disquieting, the notion of democratic law (either in traditional or experimentalist understandings) has been replaced by a praxis of authoritarian executive managerialism. The essay concludes by sketching out an alternative understanding of law-mediated legitimacy in the integration process, namely ‘conflicts-law constitutionalism’. This approach stresses the normative value of conflicts and pluralism in the process of European integration. Instead of ‘ever more Europe’ it aims to secure the existing democratic credentials of EU law, namely its ability to correct the democratic deficit of the Member States while respecting their constitutional integrity.