The European Union global regulatory state and the search for transnational democracy - reflections from the edges of Europe

The European Union global regulatory state and the search for transnational democracy - reflections from the edges of Europe

In this essay, I reflect on the evolving role of the European Union as a global regulatory state against the backdrop of Christian Joerges's influential work on European constitutionalism. Engaging with Joerges's intellectual oeuvre represents a personal moment in my academic journey, having come of age as a scholar under his guidance during my PhD studies at the European University Institute in Florence. I therefore would like to use the opportunity to critically engage with his work while situating my scholarly analysis within the broader context of my personal experiences across Europe and how they have shaped my focus on political power beyond traditional state politics. The essay begins with a personal reflection on the interplay between the personal, the political, and the academic in my work on democracy in the European Union regulatory state. Subsequently, I delve into Joerges's theory of conflicts-law-constitutionalism, examining its strengths and weaknesses, as well as its relevance for understanding the new geopolitical turn in European Union external regulation and its implications for democratic constitutionalism.

In this essay, I reflect on the evolving role of the European Union as a global regulatory state against the backdrop of Christian Joerges's influential work on European constitutionalism. Engaging with Joerges's intellectual oeuvre is not only a theoretical endeavor, but also a personal moment in my academic journey, having come of age as a scholar under his guidance during my PhD studies at the European University Institute in Florence. Therefore, while critically engaging with his work, I will also situate my scholarly analysis within the broader context of my personal experiences across Europe and how they have shaped my focus on political power beyond traditional state politics. The essay begins with a reflection on the interplay between the personal, the political, and the academic in my studies of democracy in the European Union regulatory state. Subsequently, I delve into Joerges's theory of conflicts-law-constitutionalism, examining its strengths and weaknesses, as well as its relevance for understanding the new geopolitical turn in European Union external regulation and its implications for democratic constitutionalism.

One. East-west street: the lived experiences of a European Grenzgänger

As social epistemologists will tell you, we always know from a particular place in the world. 'Place' ought to be understood broadly here. The place I am writing this essay from is at my desk, in 'a room of my own,' in The Hague, at the Dutch coast of the North Sea. But there are so many more places and experiences that have come before and that have shaped my way of thinking about the European Union. I am a Russian-German woman and law scholar who has spent almost her entire life migrating across the European continent and whose ancestors had done much the same in the centuries past. And so now, when I sit at my desk in The Hague and reflect on the work I have done over the past ten to fifteen years on democracy in the European Union regulatory state, I can't help but wonder to what extent my personal experiences have shaped my scholarship, driving me to study political power outside of traditional politics, in more obscure and muddled places such as bureaucratic networks, expert committees, and economic governance; in short: political power beyond the state. Equally, I can't help but wonder to what extent my experiences as an outsider to every national community I have traveled through in my life have shaped my search for a new normative understanding of democracy beyond the state; a transnational democracy at the edges of representative institutions. Christian Joerges's intellectual influences on my work, his insights into 'the economy as a polity' and the 'politics of expertise' as well as his unwavering faith in the possibility of a genuine European democracy have therefore fallen on very fertile ground indeed. But before I turn to his work and related scholarly questions, let me dwell for just another moment on the above-mentioned connections between the personal and the political.

As I said, much of my scholarly work happened while I was moving around Europe, freely as a worker. Most of it was done with the help of public funding and state support systems. It was the German state that provided me with a free university education and has supported me throughout my studies with student grants and interest-free loans, including a grant to do a PhD at the European University Institute in Florence, a place the utopian beauty of which has sealed my fate as a perpetual European Grenzgänger. It was the German state, therefore, that paid for my elevation from Eastern European migrant into the circles of Western European intelligentsia. Today it is the Dutch state that makes my academic career as a non-Dutch citizen possible, and whose open and international university system has become my intellectual home. Through all of that, it has been the European Union, and its legally created common market, that have allowed me to maintain my complicated post-national identity. The European Union as a Heimat of last resort.

Yet this story, this painting of my 'positionality' as a knower, would not be complete without mentioning the lessons I learned about state, market, and democracy as an Eastern European. In Russia, my European identity had always been part real and part a mirage, but certainly always a hope. A Gorbachevian utopia of pan-European cooperation that would include Russia as part of Europe. A future beyond nationalism. It was the Soviet Union in its dying breaths that taught me a lesson or two about powerful states and what happens when they break down. About life in a society in the 'trauma zone,' where neither the state nor the market work for ordinary people. About the lack of free movement and what it does to people's imagination. During the turbulent years of the Soviet collapse, the USSR wasn't quite the Hobbesian war of all against all, but it was close.

We are in a new historical context today. The Russian Leviathan has been resurrected, tragically crushing the dream of a European Russia - at least for the foreseeable future. But here at my desk in a room of my own on the Dutch coast, I am a European and I worry about other things. I worry less about the power of the state, and more about its weakness, its struggle to control the power of the globalised market and its destructive forces. And so, my Western and Eastern European experiences seem to point in two different directions. One that is concerned with too much market. The other one with too much state. But perhaps those are not different directions, but the two defining tensions of European democracy today. Two democratic worries that must be seen together. To put this bluntly: European democracy as an aspirational project of transnational democracy (and not just a transnational market) is caught between a rock and a hard place. Between the rock of a territorially unbound market and the hard place of the territorially bound state, the democracy of the latter fragile and stuck at the national level.

Or is it? What about the European Union and its regulatory state? Doesn't it, at least as ideal type, get the balance right between state and market? Isn't it a unique regional, supranational polity whose raison d'être is to solve transnational problems and mitigate risks (e.g., setting high global standards for environmental protection, food and product safety, data protection, digital markets and AI) whilst being embedded in democratic structures? Embedded in institutions which whilst imperfect, are nonetheless governed by the principles of democratic representation, openness, participation, and deliberative democracy? Put shortly, can the European Union regulatory state be seen as a vehicle of transnational democracy understood as democratic norms and practices which transcend national boundaries? Having arrived at the actual subject of this paper, we are immediately in trouble.

The trouble is that despite the many debates on this question, no settled conception of European Union democracy exists on the basis of which it could be answered. Indeed, depending on the perspective taken, one could arrive at very different conclusions.

For some, the very question is problematic. One of the leading scholars of the EU regulatory state, Majone, would argue that democratic regulation is an oxymoron, and that the beauty of the EU regulatory state is that it is not about democracy, but about economic efficiency. This line of thinking would presumably resonate with recent debates in democratic theory about the crisis of contemporary democratic representation and which argue in favour of system corrections based on the idea of an epistocracy - the rule of the knowledgeable. While different conceptions, both epistocracy and technocracy have little faith in the epistemic virtues of the democratic process. Both also rely on an objectivist understanding of knowledge in which facts and values, knowledge and politics can be separated. The virtue of the EU regulatory state would therefore lie in its distance from national democratic politics with its redistributive battles and short-term interests. Majone's technocratic vision of the EU regulatory state has been highly influential in large parts of EU regulation scholarship and in EU policy circles, the latter often emphasising effective, efficient, and evidence-based problem solving as the main added value of the Union - delivering results to citizens is what Europe is all about. This is not an unattractive idea, especially if we consider some of the issues on which democratic politics are currently dramatically failing - take global warming and the interests of young people and of future generations. But does technocracy really work? The ongoing politicisation of EU regulation despite the many attempts to keep politics out, as well as abundant studies on EU regulatory politics, seem to suggest otherwise.

For others, 'the lure of technocracy' is precisely the problem with European governance. From this perspective, not only is the ever-growing European regulatory state alienating citizens, it also fails to offer solutions to the most pressing problems. It enables globalised capitalism rather than preventing its disastrous social and ecological effects. The EU technocratic elite - experts and bureaucrats - is either too weak or suffers from various types of capture, be they epistemic, ideological, economic, or all of the above. As Habermas puts it, EU executive power needs the counterweight of a democratic public to stand up to highly concentrated economic interests. For him the answer is transnational democracy at EU level. But for those who believe that the true locus of democracy is the modern nation state, after all the birthplace of modern democracy, the problem with the EU regulatory state is that it erodes effective self-government at the national level. On both accounts, the two faces of the EU regulatory state, technocracy and market efficiency, alienate and disempower ordinary citizens, both grinding at their collective self-government and equal freedom.

Christian Joerges is one of the few scholars who have argued that the European political process, the process of EU positive integration through regulation, has its own inherent democratic legitimation. Good scholarship is about getting the question right and Joerges's guiding question remains today as urgent and pertinent as ever: How to manage international interdependence under the conditions of globalisation whilst preserving democracy? His answer, with many vignettes and provisos, is the EU, but not the EU as another derivation of the state (either the nation state or a new federal European state), but as a new transnational form of political authority that is both functional in nature (it aims to solve transboundary problems) and committed to the ideal of democratic constitutionalism. Joerges, of course, is not oblivious of the constitutional truism according to which the EU is a polity of derived powers. But isn't a true democratic experiment always more than the sum of its parts? Joerges sees the EU as also having a genuine democratic legitimacy, which is grounded in its ability to correct the democratic deficits of national democracies. His pluralist theory of EU constitutionalism, conflicts-law-constitutionalism, rests on the assumption that democracy in a globalised world can be established neither at the national nor at the supranational level alone. Instead, it proposes a new hybrid and pluralist constitutional constellation that sees both operating in tandem and that can therefore be understood as a truly post-national constellation.

In the following, I will engage with Joerges's scholarship, not just for the sake of honouring a teacher, but because it is valuable for contemporary thinking about a new type of transnational democracy. One that can transcend the exclusionary and dehumanising effects, the dark legacies, the unfreedom of the outsiders of modern state constitutionalism. As I alluded to above, this will be a reflection on democracy at the edges of representation. I will not engage with classic democratic themes of voting, parties and parliaments or separation of powers. Rather, I am pleading for a broader understanding of democracy as being relevant to the many different (and sometimes obscure) places in which political power is exercised and to the many ways in which we as citizens, consumers, workers, and human beings engage with politics across spaces.

More concretely, I will discuss two strengths and one blind spot of Joerges's CLC. The two strengths are complementary, and they make CLC stand out. The first strength pertains to Joerges's recognition of the political nature of markets and of EU market integration; the economy as a polity - he saw that long before political economy has become fashionable in EU legal studies. The second strength pertains to his equally important recognition of knowledge as political; his analysis of the challenges of integrating science and politics through EU law. Joerges' approach to EU integration thus, in my view, combines political economy with political epistemology when thinking about European democracy. Both strengths are relevant for the observations in the last part, where I consider the blind spot. The latter has to do with a recent transformation, which CLC does not address, but for which its core principles may nonetheless be relevant: the transformation of the EU into a global regulatory state. I will argue that EU global regulatory power is a new iteration of EU economic constitutionalism, which requires imaginative thinking about new conflicts of laws and transnational democracy.

One clarification on terminology is in order. Throughout the paper, I will reflect on the different facets of the term 'transnational' defining it rather loosely as processes, regulations, and democratic norms and practices that go beyond national boundaries, involving multiple states and public and private actors in a way that integrates their socio-economic, political, and legal dynamics to address shared cross-boundary problems. Transnational problems require transnational regulation, which requires new ways of thinking about legal and political authority and its justification. The main goal is to break with methodological nationalism, whilst keeping the notion nonetheless open for new theorizing.