Numerical rules or political government, that is the (European) question

Abstract

Numerical rules can be defined as legal rules, the operative part of which is an economic indicator. This peculiar recombination of the technologies of government through law and governance by numbers is the result of the return of the regulatory ideal of neutral government in the 1970s (powered by the amalgamation of ordoliberal and neoliberal ideas into what may be called neo-ordo-liberalism) and the search for solutions to the contradiction at the heart of European integration after 1971: the will to have a common currency without the will and institutional means to ensure its political government. The ground for the emergence of European numerical rules was laid by the establishment of the European Monetary System in the late 1970s, which resulted in the subjection of national monetary policy (and to a lesser extent, national fiscal policy) to relevant economic constraints. European numerical rules were codified and thus juridified in the Maastricht Treaty, concretised in the Stability and Growth Pact, and retooled in the wake of the financial, economic and fiscal crises of the 2010s. Cumulated experience confirms that the elimination of discretion in the process of application of numerical rules is an illusion. In fact, resort to economic indicators to define the operative part of legal rules does not do away with discretion, but merely changes the way in which discretion is exerted. This is so because economic indicators are not sources of objective and impartial economic knowledge, but social constructs, open indeed to be articulated in different forms. The curious case of the structural deficit as defined in the Stability and Growth Pact illustrates the point quite vividly. The need to resort to discretion in the process of application of numerical rules should be explicitly acknowledged instead of denied. Otherwise, the result will be the cloaking of discretionallty, which breeds arbitrariness.