a1 Max Planck Institute for the Study of Societies, Paulstrasse, Cologne, Germany
To be at the same time effective and liberal, governments must normally be able to count on voluntary compliance – which, in turn, depends on the support of socially shared legitimacy beliefs. In Western constitutional democracies, such beliefs are derived from the distinct, but coexistent traditions of ‘republican’ and ‘liberal’ political philosophy. Judged by these criteria, the European Union – when considered by itself – appears as a thoroughly liberal polity which, however, lacks all republican credentials. But this view (which seems to structure the debates about the ‘European democratic deficit’) ignores the multilevel nature of the European polity, where the compliance of citizens is requested, and needs to be legitimated, by member states, whereas the Union appears as a ‘government of governments’, which is entirely dependent on the voluntary compliance of its member states. What matters primarily, therefore, is the compliance–legitimacy relationship between the Union and its member states – which, however, is normatively constrained by the basic compliance–legitimacy relationship between member governments and their constituents. Given the high consensus requirements of European legislation, member governments could, and should, be able to assume political responsibility for European policies in which they had a voice, and to justify them in ‘communicative discourses’ in the national public space. That is not necessarily so for ‘non-political’ policy choices imposed by the European Court of Justice (ECJ). By enforcing its ‘liberal’ programme of liberalization and deregulation, the ECJ may presently be undermining the ‘republican’ bases of member-state legitimacy. Where that is the case, open non-compliance is a present danger, and political controls of judicial legislation may be called for.