The literature remains divided about how and to what extent, and even whether new modes of governance (NMG) enjoy normative legitimacy. The most innovative NMG include the European social dialogue, the inclusion of private stakeholders in public decision-making, and the ‘open method of coordination’ (OMC), whereby the states agree to ‘soft’ guidelines and targets.Footnote 1 What makes these processes new and worthy of attention by normative political theorist? Some of the innovative features are apparent when we compare them to ‘traditional’ hierarchical modes of decision-making such as the ‘community method’. There the Commission proposes binding legislative and executive initiatives to the Council of Ministers and the European Parliament, both publicly accountable. The rules impose fairly uniform requirements on all member states, and their implementation is overseen by courts. By contrast, NMG are modes of public policy that often include private actors, and policy-making by public actors outside legislative arenas, often by means of ‘soft’ law and with elements of self-regulation. Of particular normative concern are two typical features: (1) the delegation of regulatory activities to independent regulatory authorities at the national and the European level; and (2) regulatory networks outside the legislative arenas that involve both private and public actors for specific sectors. The normative puzzles arise because these features tend to make the NMG less democratically accountable, and hence normatively suspect for citizens accustomed to democratic standards of legitimacy.
While the NMG are not directly accountable in the sense that the participants can be voted out of office, the literature offers several arguments for why we might sometimes favour NMG over democratic arrangements.Footnote 2 Indeed, some hold that NMG can confer legitimacy onto the European Union. In particular, NMG are sometimes said to be legitimate because they secure ‘output’ more effectively than democratic arrangements, even though they lack any ‘input’ from voters. First, NMG may be more effective: the networks and private actors have more expertise, and may respond more speedily than public actors alone. And, second, NMG may enable more credible commitments in so far as they are insulated from governments, whose decisions are subject to electoral recall. At the same time, the NMG are often thought to be susceptible to two particular risks, their effectiveness and credibility notwithstanding. The first risk is fragmentation; since NMG are often issue or sector specific, they may tend to foster fragmented or myopic public policy-making, at odds with the unitary, all-inclusive conception of public interest thought to be best secured through ‘standard’ democratic institutions. The second risk is that NMG lack mechanisms that can help internalize any negative externalities they may create – which democratic institutions with a broader mandate might be more likely to consider and even control.
Whether the NMG indeed do stand up to normative scrutiny – be they sufficiently democratic or not – requires attention to the normative question of what standards are appropriate for a legitimate multilevel political order such as the European Union (EU), and empirical findings about the extent to which these standards are satisfied. In so far as NMG are problematically non-democratic, it is important to consider whether there are ways to render these decision procedures more democratic: are there ways to allow the general public to affect policy substance so as to be responsive to the best interests of citizens – for instance, by enhancing citizens' opportunities for ‘input’– without becoming less effective and less able to make credible commitments? In particular, might three elements of democratic accountability alleviate the weaknesses of NMG, without detracting from their advantages? The three strands of accountability considered are:
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control by electoral, party-based, democratically accountable representatives over governing functions;
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functional representation of affected stakeholders of a particular policy; and
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public debates in the public sphere, with civil society, that require policymakers to account for their decisions and the outcomes.
I argue that the alleged benefits of NMG may be less than are often claimed, and that democratic accountability measures are less of a challenge to effectiveness and credibility, properly conceived.
This article thus challenges the normative claims made on behalf of NMG. These arguments draw on a conception of legitimacy and a fragment of a theory of democracy, which should lead us to question the alleged loss involved in making NMG more democratically accountable. Both the benefits of the former and the burdens of the latter seem overdrawn. The first section seeks to give a flavour of the debate concerning NMG. The next part sketches an account of normative legitimacy and the multifarious roles of institutions that help give assurance and render authorities trustworthy in this regard. The third section uses this account to lay out a normative case for democracy, incorporating the above-mentioned three aspects of accountability, and noting some of the enabling conditions that must be in place for democratic procedures to be legitimate. There follows a discussion of to what extent NMG may provide the requisite forms of assurance, and hence legitimacy, without the benefits of democratically accountable public authorities. The fifth part of the article considers whether adding some such forms of accountability will increase the legitimacy of NMG, in particular by reducing fragmentation and untoward externalities. I argue that enhancing only one or two of the three mechanisms does not automatically also enhance legitimacy and accountability, since their value depends in part on each other in complex ways. The upshot is that it is not enough to secure stakeholder participation and discussions in the public sphere, for on my account of legitimacy, democratic accountability also seems a necessary component. Thus NMG may themselves have to be more democratically accountable, or they must be embedded in mechanisms that allow for scrutiny by, and the assigning of responsibility with, democratically accountable bodies. The upshot is that the changes required to make NMG more normatively legitimate will make them less new, and less forms of governance than forms of government.
The sixth section considers and rebuts one objection against such changes, namely that NMG will become less effective when they are entangled by such mechanisms of accountability. On my account of legitimacy, this claim is misleading, because democratic input accountability also serves important roles for output legitimacy, and the requisite assurance seems better secured by democratic contestation and accountability than by other mechanisms. The conclusion is cautiously optimistic with regard to NMG. While claims of their benefits seem ill founded or overdrawn, the prospects for ‘standard issue’ democratic measures are also poor in multilevel settings. Some but not all the normative weaknesses of NMG may be reduced if they remain under the control of democratically accountable bodies – and they in turn may also gain from the NMG if properly restrained. NMG in this view are not obviously the solution: rather, they are part of the problem. They may, though, when carefully joined with democratically accountable procedures be part, but only part, of the solution to a European Union that must become more legitimate.
DIVERGENT OPINIONS
In a thorough and wide-ranging paper, Citi and Rhodes indicate how normative theorists have responded very differently to the NMG, and to OMC in particular.Footnote 3 Some have high hopes for OMC as an alternative to hierarchical political accountability on the grounds that it is better at promoting deliberation, problem-solving and participation by all groups.Footnote 4 NMG are also sometimes said to be legitimate because they secure desired results or output more effectively than democratic arrangements do. As I noted above, they are said to be more more effective and enable more credible commitments by those involved. Loose networks that include private actors can draw on more expertise and respond more speedily than public actors who are kept on strict leashes by their domestic constituencies, while the participants are more likely to commit through not being subject to the shifting whims of electorates. In the words of one commentator, ‘If the structure of the network in terms of interest representation is well balanced, the network will tend to open up policy-shaping opportunities for a variety of diverse actors without interests being realized at the cost of third parties.’Footnote 5 However, critics challenge that such conditions hold, and question the ‘deliberative quality’ of the processes. Indeed, some note that not even the social partners are satisfied with their access to these processes.Footnote 6
These conflicting claims bring out several of the central concerns: who is to decide what counts as a well-balanced network, and that the creation of certain externalities are worth the cost? Domestically, one standard response to such questions has been ‘the people’. Yet, NMG lack the standard forms of democratic accountability, such as elections. They even lack legal accountability in the form of judicial scrutiny. Indeed, the very prerequisites for such accountability mechanisms, such as transparency, are absent. However, others argue democratic ideals are inappropriate standards of legitimacy for decision-making in a multilevel, highly complex political order such as the EU. All that is required is that outputs get secured effectively.
NORMATIVE LEGITIMACY
When and why, if at all, do citizens and their national authorities have a moral duty to obey the regulations that arise from NMG? This section sketches an account of this issue of normative legitimacy and the multifarious roles of institutions that help give assurance and render authorities trustworthy in this regard. We must distinguish between the normative legitimacy of a political order or regime, which is a question of whether the rules and practices satisfy certain standards of legitimacy; and the more demanding conditions for when citizens have a political obligation or a normative duty to comply with such rules and commands. Political obligation requires more than that the rules are normatively legitimate: citizens have a political obligation only if such rules are also actually generally complied with.
The sense of legitimacy of primary concern here is the normative assessment of regimes, particular institutions, officials' actions, or policies. At issue is whether these regulations, institutions, authorities and their actions are justifiable to those affected by them, and particularly towards those required to uphold them. If the regulations are so justifiable, those subject to them – for instance citizens – may have a moral obligation to obey these institutions or officials. They are said to have a political obligation, at least when others comply. Other familiar forms of legitimacy are often relevant for this question of political obligation: legality, or legal legitimacy, in the form of constitutionalism and the rule of law is often regarded as necessary for the justifiability of a political order. But legality is insufficient, since notorious dictatorships would not command political obligations. General compliance, as a form of social legitimacy, may also be relevant. However, such compliance is also insufficient on its own, since people may be mistaken in believing that they ought to comply, or acquiesce solely from fear of sanctions. Nevertheless, general compliance may indicate that the subjects find the system to be just.
The following comments seek to explain why general, if not universal, compliance and public assurance thereof is a condition for political obligation. I venture that the different suggestions for enhancing the normative legitimacy of the EU, including proposals concerning NMG, may best be assessed and combined in light of how they can enhance the trustworthiness of institutions and authorities as regularly and reliably remaining responsive to the best interests of citizens. More specifically, long-term, justified general support for the EU requires that citizens can trust in the general compliance of others, both citizens and officials, based on a shared acceptance of the legality and normative legitimacy of the regime. Such trustworthiness in institutions and fellow citizens seems necessary for the long-term support of the multilevel political order and for authorities' ability to govern. Trust and trustworthiness have grown in importance among increasingly interdependent Europeans. Indeed, this interdependency was early identified as one reason for the growing academic, legal and political concern about of the ‘legitimacy deficit’ or ‘democratic deficit’. More trust in the good will and compliance of others arose with the shifts from unanimity to qualified majority voting in many policy fields. Unanimity rule protected citizens of one member state against policies contrary to their own interests, and from risks that others would not do their share of complex cooperative ventures. But such veto points led to stagnation, preventing common action even when required. A series of treaties gradually reduced the scope for unanimity, until the Lisbon Treaty established as the default legislative procedure qualified majority in the Council and co-decision by the European Parliament and the Council together. The OMC and other NMG may also have emerged in response to the difficulty of achieving unanimity among the member states.
Institutions can contribute in many ways to building and maintaining the requisite trust and normative legitimacy of a political order such as the EU. Their multiple roles are particularly complex in the settings where actors are ‘contingent compliers’ in the sense familiar from game theoretical discussions of assurance games.Footnote 7 Contingent compliers are prepared to, and prefer to, comply with common, fair rules as long as they believe that most others do so as well. Acting from such a sense of justice does not entail that they are not also motivated by self-oriented interests, but that these selfish interests are constrained. They may, for instance, be motivated by what John Rawls called a duty of justice: ‘that they will comply with fair practices that exist and apply to them when they believe that the relevant others likewise do their part’.Footnote 8 Institutions can bolster expectations concerning others' actions, so as to address the complex assurance problems that face contingent compliers. These problems were identified and addressed already by Jean-Jacques Rousseau, and more recently by research on the theory of games and social capital.Footnote 9 In these situations, citizens and authorities are motivated by a sense of justice to be contingent compliers. Rousseau and Madison were among the first to underscore how institutions help resolve the assurance problems of contingent compliers. Recent empirical and normative contributions in the theory of games and experimental economics enhance our understanding of how institutions can provide the requisite forms of assurance. Social institutions can promote trust and trustworthiness in various ways.Footnote 10 They can reduce the likelihood that others will default by adjusting their incentives by means of sanctions. They can reduce the costs of failed trust, for instance by restrictions on the scope of legal political decisions by human rights that protect against the abuse of majority power. Institutions can also provide transparency, to foster public knowledge that Union citizens and public authorities indeed are contingent compliers, partly because they have been socialized into a shared European identity.
Consider how institutions might assure contingent compliers in ways that make them more likely to comply with just rules. Recall that a contingent complier will comply with rules and officials' decisions if two conditions hold:
1. She must believe that the institutions' and authorities' commands are normatively legitimate.
This may require:
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A plausible public political theory that states and justifies normative standards of legitimacy for the political order, such as democracy, solidarity and subsidiarity of some kind. This appears to be largely lacking for the European political order. Some of the most heated debates in the Convention on the Future of Europe concerned these issues.Footnote 11
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Institutions must be simple and transparent, at least to a extent sufficient for citizens to be able to comprehend and assess them by the relevant normative requirements. In multilevel political orders such as the EU this may be difficult, since ‘constitutional’ rules establish, check, divide and disperse authority among institutions in complex ways.
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Institutions must be seen by citizens and authorities to be effective and efficient, in the sense of actually producing the normatively desired effects without too much loss – at least when generally complied with.
2. She must believe that most other actors will comply. What matters is not actual compliance, present or future, nor her beliefs about actual compliance, but beliefs about the future compliance of others. Within a multilevel political order such trust in the actions of others – citizens and authorities alike – becomes a major challenge, a problem foreseen by James Madison. Authorities of the different sub-units and the centre must trust each other,Footnote 12 but citizens must also have trust in one another and in their authorities at both the national and EU level.
Institutions can give contingent compliers reasons to believe that other citizens and authorities do their share, in several ways:
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Institutions can monitor or facilitate the monitoring of others' actual compliance – and public knowledge of such monitoring in the future may itself boost compliance. Transparency and access to information may be crucial. The media, the political opposition or constitutional courts often serve this role. In the EU, several of these mechanisms are underdeveloped, but this may change with increased democratic contestation and ratification of the European Convention on Human Rights.Footnote 13
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Institutions can include mechanisms that can be trusted to monitor whether the policymakers are actually able to solve the problems aimed for. Freedom of the press and a functioning multiparty system are often crucial in this regard.
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Institutions can also provide sanctions that modify citizens' incentives. For instance, government officials can show how their roles are such that their best option is one where ‘their individual benefit depends on the provision of the collective benefit’.Footnote 14 Democratic accountability is one such strategy, and attempts to democratize EU institutions may serve to enhance trustworthiness precisely in this way. These other mechanisms that monitor and sanction non-compliance – such as courts and the media – are important even from the point of view of contingent compliers. They provide much-needed assurance of at least two kinds. First, contingent compliers are assured that even those who would prefer to free ride still choose to comply in light of the sanctions. Second, contingent compliers are given public assurance that others with their own preference chose the cooperating equilibrium rather than the option to not comply. The upshot for our purposes is that such sanctioning mechanisms may have to be in place if the European political order is to be stable.
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In addition to monitoring and sanctioning, institutions that provide mechanisms for socialization are extremely important as a way to bolster assurance among contingent compliers. If institutions can be seen to socialize individuals to be conditional compliers, it serves to reduce mistrust in the preferences of others. When this socialization happens in public institutions it provides public assurance and reminders that all – or most – citizens and authorities share norms about what justice requires.
Note how publicity is important in providing assurance of these kinds. Reasoned expectations of future general compliance are strengthened when others are known to be contingent compliers, and when it is public knowledge that the rules tend to secure fair output, and are generally complied with. Institutions that render institutional rules, citizens and authorities more trustworthy in some of these ways contribute to satisfy the two conditions for contingent compliers. These institutions thus contribute to give citizens a political obligation to comply – in so far as these institutions are normatively legitimate.
We now turn to consider whether NMG provide such assurance at least as well as old modes of governance, understood as democratically accountable hierarchies of public power. Such comparative assessments must avoid two mistakes. Democracy may not be effective or appropriate in these settings.Footnote 15 We must also avoid comparisons of democratic ideals with the actual practice of NMG. Instead we should take care to compare either ideals of hierarchical democratic problem-solving with the ideals of NMG; or the two different kinds of practices. The next two sections draw on this framework to illustrate the normative case for democracy and assess the normative legitimacy of NMG. We ask whether these decision processes have institutional elements in place to enhance the trustworthiness of institutions and authorities so that the European political order as a whole remains responsive to the best interests of citizens.
A NORMATIVE CASE FOR DEMOCRACY – APPLIED TO THE EU
This section considers how democratic accountability fares with regard to the various forms of assurance, paying particular attention to how to assess the alleged benefits. I shall suggest that, while we have good reason to value mechanisms of democratic accountability in general, the case seems weaker in the EU at present.
To fix ideas, we can regard democracy as a set of institutionally established procedures that regulate competition for control over political authority, on the basis of deliberation, where all or most adult citizens are permitted to participate in an electoral mechanism whereby their expressed preferences over alternative candidates determine the outcome in such ways that the government is accountable to, and thereby responsive to, all. For our limited purposes, central features of democratic rule are:
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control by elected, party-based, democratically accountable representatives over governing functions; and
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public debates in the public sphere, involving civil society, that require policymakers to account for their decisions and the outcomes.Footnote 16
I submit that the best argument for such democratic decision-making is that democratic rule is over time more reliably responsive to the best interests of the members of the political order than any of the alternatives.Footnote 17 Under certain conditions, in certain combinations, these institutionalized mechanisms and arenas contribute to several of the forms of assurance needed for citizens and authorities to have political obligations towards their political order.
Representation of those who are affected is a fundamental premise for why democratic rule is more legitimate than other arrangements. All those who are subject to the use of public power should partake in its control, to reduce the risk of domination and to promote informed policy choices. But formal equality of voting rights is not sufficient. To assure contingent compliers, the decision structures must be sufficiently transparent, and it must be possible to place responsibility with sufficient clarity. But the EU is far too opaque, due in part to the plethora of multilevel modes of governance and multiple modes of decision-making.
Party contestation is important, both for socialization – opinion formation – and to ensure that policy choices are as informed as possible. Such contestation helps provide credible monitoring, helps ascertain whether the chosen policies are reasonably effective and efficient in problem-solving in the light of alternatives and externalities, and hence give assurance that authorities reliably govern fairly and effectively. Public knowledge of this helps make politicians responsive to citizens, not only on single occasions but also over time. In total, such competition seems crucial to make elected officials – and their competitors – responsive to the preferences of citizens. So the pre-emptive responsiveness by legislatures to citizens' future, informed, express preferences, is one important feature that makes democratically accountable legislatures valuable. The risk of being turned out of office prompts governments to give an account of what they have done, and what they should have done – whether it is what they promised, or what turned out to be best given how events emerged, or best given what citizens have come to see are the best objectives.
At present, the conditions that make democratic contestation valuable are sub-optimal in the EU. Consider that two important aspects of competitive politics are the existence of opposition parties, and media scrutiny to judge the authorities' agenda and performance and to generate plausible alternatives. Competition fosters political debate and the formation of public opinion about how best to accommodate the interests of all in the political order. Another benefit of opposition parties is that they mobilize voters: only when there are alternatives can people really discern the impact of their votes. Some also argue that a necessary condition for allegiance to the political system is that there be real competition with a plausible chance for losers to one day win. Currently, the EU offers little room for rivalry among leadership candidates with competing policy agendas.
Responsiveness to the real interests of citizens by means of democratic accountability also requires that the information flow should not be controlled by the present powers that be. To reduce the opportunities for deception about underperformance, opposition parties, critical media and independent research help alleviate the information asymmetry between the government and voters. Electoral contests help voters realize which choices may be made, and give them some alternatives. Without electoral competition at the European – or domestic – level there are few incentives for the Commission or member state governments to change their policies in response to changes in citizens' preferences. So without opposition parties and monitoring by free media, citizens have fewer reasons to trust their governors' claims to be responsive to their preferences.
Compared to many – but not all – national democracies, there are few if any vehicles for encouraging a Europe-wide debate about the public political theory of the EU. The relative dearth of public arenas for political discussion makes it difficult to mobilize political opposition. But this absence may be temporary: the requisite public debates and forums may indeed develop in response to increased political contestation among parties. Thus pessimism about European-level democracy should not be overstated: there are signs of more party organization and competition in the European Parliament, and some policy contestation within the Council of Ministers.Footnote 18 There are therefore openings for contestation about the EU's policy agenda and critical scrutiny of performance.
NEW MODES OF GOVERNANCE: LEGITIMATE WITHOUT DEMOCRATIC ACCOUNTABILITY?
We now turn to consider to what extent NMG may provide the requisite forms of assurance for contingent compliers and hence legitimacy, even in the absence of standard democratic mechanisms of electoral accountability. There are several reasons to value NMG. They are thought to promote deliberation and participation by all affected stakeholders, and secure desired results more effectively and credibly than arrangements that are more directly democratically accountable. Several remarks are apposite as we examine the various forms of contributions by institutions to provide assurance.
With regard to simplicity and transparency, we noted that all multilevel arrangements are complex. However, the NMG are typically issue or sector specific, and this creates several additional problems, such as who should count as affected parties and be included as stakeholders and how to identify and adjudicate conflicts between the various regulations that emanate from partly overlapping NMG in different issues.Footnote 19
With regard to identifying the appropriate objectives and standards, it might be thought that they are likely to emerge on the basis of constructive debate among the participants. However, it remains less clear who has the authority to decide on membership, and how to guard against skewed bargaining power and cooptation, so that the agreements actually reflect and balance all affected interests. Moreover, it is unclear whether citizens can have reason to trust that NMG do in fact secure outcomes that are sufficiently responsive to the best interests of citizens. Empirical findings give reason to doubt whether the set of deliberators is sufficiently representative, and the quality of the debate sufficiently ‘deliberative’.Footnote 20 It is not clear what it would take to improve on these flaws, without resorting to hierarchical elements.
NMG may secure efficacious solutions in a more speedy and cost-saving manner. Networks and private actors often have more expertise, and may respond more rapidly than when public actors seek to act alone. Again, one weakness is that in the absence of transparency and oversight, citizens may have little reason to trust that this is in fact the case. NMG may also help socialize participants, and hence foster solidarity and mutual concern among them. This may be one desired effect of their deliberations. Yet, this may be less attractive in that the members of the NMG do not represent all affected parties, and the deliberations are not open to public scrutiny. These factors increase the risk that externalities will at best be ignored and possibly callously planned and imposed.
Do the NMG monitor problem-solving? It is not clear how these arrangements can determine whether their results are indeed effective in ways that can credibly convince the public. Similarly, it is unclear that NMG can be trustworthy monitors of compliance with the agreed solutions: the risk of cooptation and misplaced solidarity with other members may hinder the requisite detachment. Finally, with regard to sanctions, NMG may be able to provide some in the form of shaming, and even threatening with exclusion from the networks. These may well suffice in several cases.
WOULD DEMOCRATIC ACCOUNTABILITY MECHANISMS MAKE NEW MODES OF GOVERNMENT MORE LEGITIMATE?
There are at least two ways in which NMG might gain from democratic accountability mechanisms. They may include such mechanisms, or they must be embedded in ways that allow scrutiny and responsibility of their activities to lie with democratically accountable bodies. Consider first ways to include some accountability mechanisms familiar from democratic arrangements into the NMG. This proposal might help reduce fragmentation and externalities because broader concerns may be identified and voiced by having more affected parties present. First, these benefits may be promoted by increasing the number of affected stakeholders. Some might argue that this moves the NMG towards the democratic ideal that all affected parties may voice their concerns and influence the decisions, though full electoral accountability is not secured. Second, increased transparency about the workings of the NMG, in particular opening up their internal debates to public scrutiny, provides channels of protest and possibly assurance. However, in my view of legitimacy, these measures fall short in important ways. Democratic accountability on the basis of competing policy proposals is also a valuable accountabity mechanism – and it is part of the reason why the other accountability aspects are valuable. Electoral accountability creates incentives for critical monitoring and assessment of alternative policy choices – secured through transparency and inclusion.
We should not commit a fallacy of composition: something that is true of some of the parts may not be true of the whole set of democratic institutions. Consider transparency requirements or participation by some but not all parties. There is no reason to believe that any increase in transparency and inclusion of some more stakeholders will also make the result more legitimate. There is no simple, monotonic relationship between the mechanisms of accountability and normative legitimacy: their combination and levels are crucial. For instance, the right to vote among parties is unlikely to secure responsiveness in the absence of meaningful criticism or transparency. The possibility of voicing objections to policies seems necessary, but is hardly sufficient in the absence of clout, by votes or the ability to shame.
Similarly, functional participation by an increasing set of groups of affected parties need not enhance the normative acceptability of the outcome, particularly not for those without access or when negotiations happen behind closed doors. To be sure, citizen representation is one way to allocate valuable political control, and may help identify better policy options to secure those outcomes thought worth pursuing. But stakeholder representation falls far short of the representation of all citizens and creates its own problems. For instance, the risks familiar from (neo)corporatism occur when some but not all affected parties are included in the informal networks: externalities are easily imposed on those not present around the table; participants fall prey to the belief that what is good for them must also be good for the rest of the political order; and those excluded will lose trust in the political order.Footnote 21 These problems bring out a fundamental challenge to the alleged effectiveness of NMG in reaching their stated goals; the objectives to be secured may be illegitimate in that they do not best serve the interests of all affected in a fair way. We return to this concern in the next section.
The case is stronger for the alternative way of combining NMG and democracy: using these arrangements within democratically accountable procedures. Thus modified, the role of NMG becomes far less problematic. Careful nesting of NMG within democratic procedures might, for instance, allow more creative and informed problem-solving by non-accountable bodies, the membership being decided by democratic authorities with the incentives to create a balanced set of participants. The proposals that emerge from the NMG would then have to be ultimately decided by accountable authorities, who would also have to address conflicts and spillovers among the different NMG proposals. These processes would presumably be subject to much more public scrutiny than at present (and more than corporatist arrangements traditionally have received) both by the media and by competing political parties who might seek out alternative proposals and paths not taken. The deliberations within these nested NMG would not replace and silence broader public debates, democratic deliberation and contestation, but rather enhance them.
When NMG are nested within institutions that are democratically accountable, the NMG are thus less likely to lead to fragmentation and unintended externalities. However, when NMG are so embedded, it seems an open question whether these new modes of governance are really new, or really modes of governance. To subcontract or delegate some elements of government in such ways is a traditional mode of coping with complexity through expertise and partial insulation.
AN OBJECTION: WHENCE EFFICIENCY AND CREDIBLE COMMITMENTS?
This final section considers, only to rebut, one objection against embedding NMG more carefully within democratic mechanisms of accountability. There are good reasons to permit some ‘undemocratic’ self binding to address various collective action problems: central banks should enjoy certain kinds of political independence from politicians who might otherwise be tempted to give undue priority to short-term electoral wishes over longer-term economic growth.Footnote 22 Some might argue that NMG dominated by the European Parliament or a directly elected commission might drastically diminish the benefits of NMG, of efficiency and credible commitments. If the regulatory authorities are no longer independent of politically accountable bodies, this may lead to a politicization of regulatory policy-making. Such politicization may in turn challenge the efficiency of NMG, in so far as they are forced to search for redistributive rather than Pareto-efficient outcomes. And they may not be able to withstand pressure from politicians, thus sacrificing credibility. This might in turn undermine rather than increase the legitimacy of the EU.Footnote 23
However, there are reasons to be wary of arguing by analogy with central banks, because the mandate of central banks is often very specific, and they are clearly nested within, and accountable to, democratically accountable bodies – though the European Central Bank is less so than many others.Footnote 24 The argument that Pareto improvements become unavailable for NMG hampered by democratic accountability has at least three flaws. First, many regulatory decisions are not Pareto improvements, but impose burdens on some, somehow understood for the collective good. Second, even when there are Pareto gains, the policy choice will have distributive implications in that several options are available along the Pareto frontier. The division of benefits is thus a matter of some normative concern, which many would hold should be decided by democratically accountable representatives. Third, even though credibility towards other parties is important, the account of normative legitimacy sketched out above also insists that citizens must be assured that policymakers are indeed seeking to promote the best interests of all, with a fair division of benefits and burdens. Even if NMG ex hypothesi were to make such policy and regulatory choices that secure Pareto improvements, this is not enough: citizens must also have reason to believe that NMG regularly do so. As we have seen, the appropriate mechanism to ensure this condition is met is to nest NMG within democratically accountable structures that, first, provide transparency and the opportunities for public debate about the choices made by NMG and, second, offer the possibility of sanctions.
With regard to whether NMG are more effective than democratic hierarchical arrangements, recall that there are reasons to doubt that the objectives these NMG secure are indeed in accordance with the appropriate normative standards of the political order. When some parties are not included in the networks, there are severe risks that their interests will at best be ignored.Footnote 25 NMG would not merit respect if the claim is that they are more effective in achieving wrong objectives. And even when NMG are in fact effective in finding and implementing desired outputs, this is not enough: they must also be seen to do so, reliably and sustainably. Democratic accountability mechanisms provide one way of providing such assurance. Without them, and without ‘functional equivalents’, NMG fail to be credible, there are no mechanisms to ensure they reliably secure their objectives, and do so effectively.
CONCLUSION
These comments have sought to lay out some of the central normative concerns surrounding new modes of governance. I conclude on a cautiously optimistic note with regard to NMG. While some of the claims seem ill founded or overdrawn, the prospects for ‘standard issue’ democratic measures are also poor in multilevel settings. Some, but not all, normative weaknesses of NMG may be reduced if they remain under the control of democratically accountable bodies – bodies that in turn may gain from the NMG if these are properly restrained. I conclude that the normative challenges that emerge from this picture are not that democratic arrangements have weaknesses in handling the complex multilevel European Union, weaknesses to which NMG offer solutions. Rather, the multilevel EU creates problems both for standard issue democratic theory and for NMG – problems that NMG alone are also ill equipped to address. In this view, unaccountable, independent regulatory bodies and informal networks are not obviously the solution: rather, they are often part of the problem. But these NMG may – when carefully joined with democratically accountable procedures – be part, but only part, of the solution. The alleged benefits of NMG are open to severe doubts, unless embedded within institutions that provide democratic and legal accountability. Such measures may help reduce the fragmentation and unintended externalities of NMG. Democratic accountability mechanisms may do so in so far as they help promote more comprehensive policy platforms on the basis of informed debates about the relative benefits and burdens of the best alternatives. The combination of NMG and democratically accountable hierarchies does not offer a universal cure for the governance challenges of the EU. In particular, the multilevel nature of that political order creates some added normative concerns. They include at least three: (1) the added complexity and even opacity of decision-making by several different bodies at different geographical levels and with different competences; (2) the need for mechanisms and principles for addressing disagreements about which decisions should be made by whom (witness the competing conceptions of subsidiarity, and debates about the objectives of the Union); and (3) the problems of creating, and maintaining, a sufficient sense of justice and solidarity among citizens and authorities of different sub-units, respecting both local autonomy and obligations of justice. In meeting these three challenges, both new modes of governance and the European Union still have some way to go.
