The 'Referendum Threat', the Rationally Ignorant Voter, and the Political Culture of the EU

University College Dublin Law Research Paper No. 04/2009

28 Pages Posted: 13 Mar 2009 Last revised: 18 Mar 2009

Giandomenico Majone

European University Institute - Economics Department (ECO)

Date Written: January 23, 2009

Abstract

The chasm separating elite and popular opinion on the achievements and finality of European integration was never so visible as after the negative referendums on the Constitutional and the Lisbon Treaties. The public attitude prevailing in the past has been characterized as one of permissive consensus, meaning that the integration project was seemingly taken for granted by European publics as an accepted part of the political landscape. Permissive consensus made possible Jean Monnet's method of integration by stealth, and also made plausible the basic assumption of the first social-scientific analyses of that method: namely, that today crucial policy decisions are taken by political and economic elites, so that, as Ernest Haas put it, a majority, in the strict sense, is not required to make policy. The current stage of the integration process is best understood as the end of permissive consensus, but EU leaders do not seem to be sufficiently aware of the far-reaching consequences entailed by this change in the attitude of European publics. One important reason for this inability, or unwillingness, to assess realistically the new situation is the peculiar political culture grown up in more than half a century of intense, if not always productive, integrationist efforts. A striking demonstration of the hold of this political culture on the minds of EU leaders is the view of popular referendums as an unconscionable risk for the integration process - the referendum roulette. One of the favourite arguments against ratification of European treaties by popular referendum is that voters cannot be expected to read and evaluate technically and legally complex texts running into hundreds of pages. It will be shown, however, that this argument is flawed in several respects; carried to its logical conclusion, it would lead to severe restrictions of the franchise even at the national level. 

The paper is organized as follows. The first section discusses the end of the permissive consensus and the growing politicization of the integration project. In the following section I attempt to characterize more precisely the implicit operational rules forming the core of the EU's political culture. Although these rules are an important part of the legacy of Monnet's method, they have never been openly acknowledged either in official documents or in the academic literature. The third section examines the current debate on treaty ratification by referendum in light of the theory of the rationally ignorant voter. The following section explains the growing estrangement of EU citizens from European institutions along the lines of Lipset's analysis of the relation between legitimacy and problem-solving effectiveness. The fifth and last section suggests that the EU may be entering an age of diminished expectations: leaders realize that the current approach to European integration no longer delivers very much, but there is little demand for an alternative approach that might do better. I conclude that some form of differentiated integration may offer the only possibility of avoiding the dilemma of dissolution or irrelevance.

MAJONE, Giandomenico. The 'Referendum Threat', the Rationally Ignorant Voter, and the Political Culture of the EU (January 23, 2009). University College Dublin Law Research Paper No. 04/2009. Disponível em: <https://ssrn.com/abstract=1359047>. Acesso em 23 ago. 2017.

'One Market, One Law, One Money?' Unintended Consequences of EMU, Enlargement, and Eurocentricity

LSE Legal Studies Working Paper No. 1/2007

29 Pages Posted: 5 Aug 2007  

Giandomenico Majone

European University Institute - Economics Department (ECO)

Date Written: 2007

Abstract

A Union of twenty-seven, or more, members at vastly different levels of socioeconomic development must be considered a mutant of the old EU-15, not to mention the original EEC. The mutation pressures to which the EU is exposed today are to a large extent the unanticipated consequences of the application of the old integration methods under radically new conditions. Thus EMU, instead of making the integration process irreversible, has split the Union into two, possibly three, camps. On the other hand, the heterogeneity of EU-27 impedes the establishment of a Single Market for services. Many of the same people who opposed the original (Bolkestein) General Services Directive also maintain that the EU should be much more than a free-trade area. With the services sector - more than two-thirds of the economy - still largely regulated at the national level, however, it can no longer be excluded that the enlarged EU may regress, if not to the stage of a free-trade area, then to a customs union, with some elements of a common market for goods. It seems likely that the EU will no longer follow a straight-line evolution, rather a kind of evolution with many side branches. It is suggested that the economic theory of clubs provides a better theoretical framework for understanding such developments than the received conceptualizations.

MAJONE, Giandomenico. 'One Market, One Law, One Money?' Unintended Consequences of EMU, Enlargement, and Eurocentricity (2007). LSE Legal Studies Working Paper No. 1/2007. Disponível em: <https://ssrn.com/abstract=999652>. Acesso em: 23 ago. 2017.

European Integration and Its Modes: Function vs. Territory

TARN Working Paper No. 2/2016

19 Pages Posted: 11 May 2016 

Giandomenico Majone

European University Institute - Economics Department (ECO)

Date Written: April 27, 2016

Abstract

This paper argues in favour of a generalized agencification of Europe, i.e., in favour of a move to a strictly functional approach to European integration. This change of approach is the natural consequence of a change of the main criterion used to assess the consequences of integration: from evaluation in terms of process to evaluation in terms of actual results. The priority previously assigned to process made it possible to claim that the continuous expansion of supranational powers had produced a steady flow of benefits. The new focus on results makes it increasingly difficult to appeal to the indefinite goal of ‘ever closer union’. The crises of monetary union and massive immigration from the Middle East have dramatically revealed the deep divisions still separating the members of the Union. The older member states claim that the solution is to be found in a multi-speed approach to integration. Such an approach cannot solve the basic problem, which is the lack of agreement on the final destination of the integration process. I argue that until the member states reach such an agreement, the focus of collective action should shift from the present emphasis on supranational institutions and policy harmonization to a decentralized system of operational agencies, tackling specific problems and being directly responsible for the results they achieve. Once the benefits of this mode of integration are generally recognized, it becomes meaningful to advocate close cooperation also in the political sphere — as long as one does not repeat the neofunctionalist mistake of assuming that close economic relations sooner or later must lead to political integration. Instead of trying to transfer to the European level all the key economic policies of the nation- state, collective efforts should concentrate on what Europe needs most if it is still to play a significant role internationally: a truly common foreign and security policy.

MAJONE, Giandomenico. European Integration and Its Modes: Function vs. Territory (April 27, 2016). TARN Working Paper No. 2/2016. Disponível em: <https://ssrn.com/abstract=2778612>. Acesso em: 23 ago. 2017.

The Deeper Euro-Crisis or: The Collapse of the EU Political Culture of Total Optimism

EUI Department of Law Research Paper No. 2015/10

27 Pages Posted: 23 Apr 2015

Giandomenico Majone

European University Institute - Economics Department (ECO)

Date Written: 2015

Abstract

Although several dimensions of the present euro-crisis have been analysed by students of European integration, the impact of the crisis on the political culture of EU leaders has been largely overlooked. The political culture of a nation, a social class or, in case of the EU, an elite consists of a system of beliefs, symbols, and values – the latter including conceptions of purpose – that defines the situation in which political action takes place. One of the roots of the traditional political culture of EU leaders was the Monnet strategy of fait accompli, which consisted in pushing ahead with integration without worrying about either public support or democratic legitimation. This approach was supported by the prevailing emphasis on the process of integration rather than on the concrete results of specific collective decisions. The most serious consequence of the political culture shared by most EU leaders was the tendency to disregard both feasibility constraints and the limits of collective action. Under the impact of the euro-crisis total optimism has been replaced by panic-driven austerity. The paper concludes by calling attention to the fact that there are various alternative approaches to regional (in particular, European) integration. One approach deserving particular attention in the present situation is the functional – rather than territorial – approach advocated by David Mitrany in the 1940s and by Ralph Dahrendorf in the 1970s.

MAJONE, Giandomenico. The Deeper Euro-Crisis or: The Collapse of the EU Political Culture of Total Optimism (2015). EUI Department of Law Research Paper No. 2015/10. Disponível em: <https://ssrn.com/abstract=2597476 or http://dx.doi.org/10.2139/ssrn.2597476>. Acesso em: 23 ago. 2017.

Policy paper: Providing a cross-border civil judicial cooperation framework - a future partnership paper

From:Department for Exiting the European Union

Part of:Article 50 and negotiations with the EU and Brexit

Published: 22 August 2017

This paper outlines the United Kingdom's position on cross-border civil judicial cooperation in the future partnership.

Providing a cross-border civil judicial cooperation framework: a future partnership paper

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As the United Kingdom leaves the European Union, the Government will seek a deep and special partnership with the EU. Within this partnership, cross-border commerce, trade and family relationships will continue. Building on years of cooperation across borders, it is vital for UK and EU consumers, citizens, families and businesses, that there are coherent common rules to govern interactions between legal systems.

To this end, the UK, as a non-member state outside the direct jurisdiction of the Court of Justice of the European Union (CJEU), will seek to agree new close and comprehensive arrangements for civil judicial cooperation with the EU.

Copiado de: <https://www.gov.uk/government/publications/providing-a-cross-border-civil-judicial-cooperation-framework-a-future-partnership-paper>. Acesso em: 23 ago. 2017.

The Constitution’s Creation Is Compatible with Reading It as a Legal Document

APRIL 2, 2017|Committee on Detail,

by JOHN O. MCGINNIS

Mary Bilder, a distinguished legal historian, has written an oped arguing that the historical context and drafting of the Constitution shows that originalism is not a suitable interpretive approach for its text. Larry Solum has already asked her five probing questions about her understanding of originalism.

Here I want to focus on her historical claims and in particular her denial that the Constitution should be interpreted as a legal document. To be sure, not all originalists believe that the Constitution is written in the the language of the law, but Michael Rappaport and I do. Bilder’s exposition of an originalism that follows the Constitution’s legal meaning begins by attacking a straw man. She writes: “Originalism reads our Constitution as if it were a modern technical contract written by experienced lawyers or a contemporary statute written by a team of legislators and staffers, parsing and perfecting every word as they wrote it.”

The Constitution is not a contract or, as Chief Justice John Marshall noted, a code, but that does not mean it cannot be a legal document, interpreted with legal rules appropriate to a constitution, as were state constitutions at the time. And Mike and I have recently shown that text of the Constitution—its legal terms and its presupposition of legal interpretive rules– provides powerful evidence that it was written in the language of the law. But even if Bilder does not consider the text relevant historical evidence— which would be a strange position for a legal historian—her arguments from the context of its drafting are weak.

First, a team of lawyers was in fact responsible for perfecting the language of the Constitution. The Convention appointed a Committee on Detail to mold its resolutions into a coherent document. Four of the five members of this committee were lawyers, James Wilson, Oliver Ellsworth, John Rutledge, and Edmund Randolph. And not just any lawyers, but the most distinguished lawyers of a body that was already made up largely of lawyers. The first three were appointed to the Supreme Court, the latter two as Chief Justice. The fourth became the first Attorney General of the United States. It is hardly unusual in any complex undertaking for those less knowledgeable about the law to provide the general contours of a plan and yet leave the technical drafting of a legal document to those more knowledgeable about law. And it was the work of the Committee on Detail that formed the basis of the Constitution’s language that the Philadelphia Convention approved and the state conventions later ratified.

Bilder also claims that “Creating a workable organization of government was the task of that summer, not writing an intricate document.” But this statement wholly fails to appreciate the complexity of the founding enterprise. The Framers wanted to give more power to the government to make it “workable” but also needed to avoid the tyranny that they believed greater power threatened. That dual objective required checks and balances and the parsing out of powers—exactly the kind of intricacies that law helps make more precise to guide officials in carrying them out.

Bilder also notes that Madison decided against interweaving the Bill of Rights into the Constitution in 1791. But how does this make the Constitution any less a legal document or suggest that its meaning is less fixed than it was in 1789? There were legal rules to help understand the effect of the revisions to prior law, and the Bill of Rights in fact includes a legal interpretive rule in the Ninth Amendment to make sure important aspects of the relation between these Amendments and the Constitution of 1789 are not misunderstood.

Thus, not only may Bilder misunderstand originalist theory, but her historical arguments fail to undermine the legal nature of the Constitution’s language.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His book Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the coauthor with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

About the Author

Copiado de: <http://www.libertylawsite.org/2017/04/02/the-constitutions-creation-is-compatible-with-reading-it-as-a-legal-document/>. Acesso em: 03 jul. 2017.

Assessing the Role of Resolutions in the ILC Draft Conclusions on Identification of Customary International Law: Substantive and Methodological Issues

14(2) (2017) International Organizations Law Review (Forthcoming)

23 Pages Posted: 24 May 2017 

Rossana Deplano

University of Leicester

Date Written: May 23, 2017

Abstract

On 30 May 2016, the International Law Commission (ILC) adopted a set of 16 draft Conclusions providing a methodology on how to identify customary international law. Although largely based on the two elements approach set forth in Article 38(1)(b) of the ICJ Statute, the ILC study pushes the boundaries of the formal sources of international law beyond the realm of state practice by recognizing that the practice of international organizations (IOs) as such may be constitutive of custom. This article critically examines the ILC draft Conclusions concerning the role of IOs in the process of custom creation. It examines the concept of resolution adopted by the ILC and assesses the coherence of the interpretive methodology devised by the ILC using the UN General Assembly resolutions as a case study. The findings show that the draft Conclusions fall short of expectation in providing authoritative guidance to scholars and practitioners alike.

DEPLANO, Rossana. Assessing the Role of Resolutions in the ILC Draft Conclusions on Identification of Customary International Law: Substantive and Methodological Issues (May 23, 2017). International Organizations Law Review (Forthcoming), v. 14, n. 2, 2017. Disponível em: <https://ssrn.com/abstract=2972639>. Acesso em: 01 jun. 2017.

Determining the Territorial Scope of State Law in Interstate and International Conflicts: Comments on the Draft Restatement (Third) and on the Role of Party Autonomy

Duke Journal of Comparative & International Law, Vol. 27, 2017

Indiana Legal Studies Research Paper No. 372

24 Pages - Posted: 17 May 2017 

Hannah L. Buxbaum

Indiana University Bloomington Maurer School of Law

Date Written: 2017

Abstract

Analyzing a conflict of laws requires thinking both about the scope of potentially applicable law and about priority, or choice, among potentially applicable laws. The Restatement (Second) of Conflict of Laws, published in 1971, contains little guidance on how, or in what order, courts are to address these two inquiries. The draft Restatement (Third), in contrast, differentiates clearly the respective roles of the two analytical elements. It characterizes the resolution of a choice-of-law question as a two-step process. First, the scope of the relevant states’ internal laws must be determined, in order to ascertain which states’ laws might be used as a rule of decision. Second, if more than one state’s law might be used as a rule of decision, and those laws conflict, it must be decided which law is given priority. The draft defines “internal law” to include restrictions on the geographic scope of the law. However, there are two questions the draft does not answer clearly. First, is the definition of internal law meant to include only express restrictions on scope? Second, absent explicit indications of legislative intent, how is the scope of a law to be determined? In particular, should courts employ a presumption against the extraterritorial application of state law? 

This article begins by analyzing the role of the presumption against extraterritoriality in supplying implied restrictions on the scope of law. It considers the role of the presumption in both international and interstate conflicts of laws, and argues that the Restatement (Third) should differentiate clearly between those two contexts. It then turns to the question whether geographic scope restrictions should properly be considered part of a state’s internal law. The paper analyzes that question through the lens of a common problem: a contract dispute involving a transaction or event that falls outside the scope of the law chosen by the parties to govern their agreement. On the basis of that analysis, it concludes that forthcoming sections will need to address the implications of the draft’s categorical treatment of legislative scope.

BUXBAUM, Hannah L. Determining the Territorial Scope of State Law in Interstate and International Conflicts: Comments on the Draft Restatement (Third) and on the Role of Party Autonomy (2017). Indiana Legal Studies Research Paper No. 372. Disponível em: <https://ssrn.com/abstract=2968613>. Acesso em: 01 jun. 2017.