The role played by compromise in European integration has been widely recognized and commented upon. European Union (EU) scholars and practitioners have analysed the predominant ‘consensus reflex’Footnote 2 and ‘culture of compromise’Footnote 3 at the heart of Community decision-making; the EU's constitutional settlement, combining functional market integration with a high level of institutionalization and the coexistence of disparate domestic constitutions, has been called a ‘constitutional compromise’;Footnote 4 and negotiation theorists have pointed to the key role of both integrative bargaining in EU decision-makingFootnote 5 and compromise agreements as bargaining equilibria.Footnote 6 In short, references to compromise have come from the different subfields of European politics and from across the meta-theoretical spectrum.
At the same time, the systematic conceptual, analytical or normative study of compromise has remained the exception.Footnote 7 Conceptually, scholars have told us little about what defines a compromise, about what distinguishes a compromise from other negotiated agreements, or about how types of compromise differ from one another; furthermore, they tend to use the terms ‘compromise’ and ‘consensus’ interchangeably. Analytically, there are few systematic studies of the social and institutional context conditions that facilitate compromise at the supranational level, or of how a negotiated agreement becomes an accepted and, hence, effective instrument of EU governance. This is even more surprising when we consider the wealth of studies on deliberation and persuasion and on the conditions that facilitate the search for consensus.Footnote 8 Finally, in spite of the burgeoning literature on EU legitimacy, spanning the discussion of pre-political community, procedural democracy and systemic output,Footnote 9 the legitimizing force of compromise – an ‘essential element’ in relieving the tension between cooperation and competitionFootnote 10 – has remained strangely absent from the debate.
In short, while the existence of compromise has been widely recognized by EU scholars and practitioners alike, the concept and function of compromise have remained under-represented in the literature on EU politics. This is surprising since the concept of compromise can be linked to three questions at the heart of European integration: (1) How does the EU accommodate diversity? (2) What makes supranational rule normatively justifiable? (3) Who or what defines the limits of European cooperation?
This article attempts to get closer to the concept of compromise and to the role that compromise can play in legitimizing supranational governance. In a nutshell, the article argues that the EU – a divided, multilevel and functionally restricted polity – is highly dependent on the legitimizing force of compromise and of ‘inclusive compromise’ more specifically. This is true for horizontal or micro-level relations between political actors (where compromise works through ‘procedural accommodation’) and for vertical or macro-level relations between systems of governance (where compromise works through ‘constitutional compatibility’). The legitimizing potential of inclusive compromise stems from its core characteristic – the recognition of difference – and the process through which such an agreement is reached, combining mutual, generous concessions and communication characterized by perspective-taking, empathic concern and justification. Recognition signals non-domination; mutual concessions are non-coercive and establish long-term trust in diffuse reciprocity; and an ongoing communication between parties about their grounds for conflict, characterized by justification, perspective-taking and empathic concern, promotes a logic of cooperation. The process of reaching an inclusive compromise is ‘thinner’ than deliberation but ‘thicker’ than bargained exchange. Substantively, inclusive compromise differs from both consensus and bartered agreements: it is not aimed at the synthesis of positions, and the concessions offered are generous rather than minimal. Signalling non-domination and promoting a logic of cooperation, inclusive compromise can thus be instrumental in legitimizing political rule in the divided polity that is the EU. Given this potential, the article, finally, investigates the limits to the possibility of reaching such an agreement. I suggest that these limits are issue specific and linked to the question of where the costs of cooperation are borne, pertaining either to accommodation (at the micro level) or to constitutional compatibility (at the macro level).
The article proceeds in the following steps. The first section introduces the EU as divided, multilevel and functionally restricted, and identifies a number of challenges that this characterization raises for any attempt to legitimize such a polity. Building on the definition of compromise suggested in the introduction to this volume,Footnote 11 the next section defines the concept of inclusive compromise. After this, the third part analyses the legitimizing force of inclusive compromise, at both the vertical and horizontal levels of governance. The following section identifies the issue-specific limits to compromise and, thus, to supranational cooperation more generally. The final section concludes by outlining routes for follow-up empirical research.
THE EUROPEAN UNION: DIVIDED, MULTILEVEL AND FUNCTIONALLY RESTRICTED
The EU is, first and foremost, an arena of governance beyond the nation-state that produces and enforces binding political decisions. In doing so, the EU covers a broader policy remit than traditional international organizations do, and it is exceptionally effective; Community law is widely complied with in – and therefore legitimized by – its member states.Footnote 12
To produce and institutionalize these policy arrangements, actors – no matter at what level of EU decision-making – mainly resolve their conflicts through negotiation.Footnote 13 Negotiation is one possible form of finding a solution, ‘[w]hen a group of equal individuals are to make a decision on a matter that concerns them all and the initial distribution of opinion falls short of consensus’.Footnote 14 Negotiation differs from numerical aggregation (conflict resolution through voting), adjudication (conflict resolution through hierarchical judicial choice) and force (conflict resolution through physical coercion).Footnote 15 So far, the study of EU negotiation has mainly attracted theorists of rationalist bargaining on the one hand, and scholars of argumentation, deliberation and persuasion on the other.Footnote 16 The former explain decision outcomes as bargaining equilibria given set preferences in the policy space;Footnote 17 the latter turn to the EU's deliberative decision style to explain compliance with Community law,Footnote 18 and to identify alternative forms of democratic legitimacy.Footnote 19 Supranational decision-making has also been used to test theories of deliberation,Footnote 20 argumentationFootnote 21 and problem-solving.Footnote 22
In this article I will, instead, focus on the EU's constant search for and reliance on compromise. More specifically, I will explore how the nature of inclusive compromise and the process through which it is reached can respond to the particular challenges faced by any attempt to legitimize the EU.
First, the EU has been described as a ‘deeply divided, plural’ society,Footnote 23 and these deep divisions make established forms of majoritarian democracy not only difficult but potentially illegitimate to apply at the supranational level. As a polity the EU is, indeed, segmented by multiple social, cultural and economic divides, but, first and foremost, by the national cleavages that result from its composition of 27 member states. Given the absence of preconditions for fully fledged supranational democracy, these 27 states continue to be the prime arenas for both democratic contestation and social solidarity.Footnote 24 The ensuing challenges for the possibility to legitimize the Union have been debated extensively.Footnote 25 Essentially, the continued existence (and pre-dominance) of national cleavages calls for non-majoritarianism at the supranational level. Without a ‘demos to legitimize majority rule’,Footnote 26 and given the risk of congruence between political and national minorities, basic trust in the alternation between government and opposition is lacking. Allowing the minority to be ruled by the majority – a well-established practice in national democracies – would therefore ‘bring about a decline in the social legitimacy of the polity with consequent dysfunctions and even disintegration’.Footnote 27
Second, the EU is a multilevel polity, where political authority is allocated across supranational, national and subnational levels, and where EU decisions depend on domestic implementation.Footnote 28 Throughout the history of European integration, the reliance on domestic compliance (and, thus, legitimacy) has shielded the EU from a fully fledged acceptance crisis.Footnote 29 The EU's multilevel nature has therefore contributed to stability. Yet, in combination with the above-defined challenge – the absence of pre-political community, democratic space and social solidarity in a highly divided polity – it also raises an additional challenge for any attempt to legitimize supranational governance: if the predominant arena for national contestation remains national, if individual political rights must be protected at the domestic level,Footnote 30 and if the EU, therefore, depends on the continued legitimacy of its member states,Footnote 31 then EU legitimacy demands that political values and their structural realization, in the form of rights and institutions, are compatible across arenas of governance.Footnote 32
Third, although the EU is a polity, it is a polity with the functionally restricted purpose of economic integration; in particular, its ‘market constitution’Footnote 33 does not include a competence for taxation or for redistributive social policies. This has two repercussions for any attempt to legitimize the Union's decisions. The lack of a competence in redistributive welfare policies – the one issue area of continued salience for national electorates – and the fact that EU elections do not translate into clear choices between welfare agendas limit the potential for competitive democracy at the supranational level.Footnote 34 In addition, the EU lacks both the competence and the resources to keep potentially outvoted minorities committed to the supranational polity by offering generous welfare pay-offs. At the same time, there is no clear constitutionally defined hierarchy of levels and competences, and supranational governance therefore risks undermining core national welfare choices.Footnote 35 A functioning single market may, in fact, make such a challenge both necessary and unavoidable.
In sum, given its division, multilevel nature and functional restriction, the EU cannot rely on the procedural and substantive mechanisms that make political rule acceptable at the national level, primarily majoritarianism and redistribution; at the same time, it needs to keep domestic legitimacy intact.
This well-known diagnosis has been followed by a plethora of suggestions for strengthening EU legitimacy, including the empowerment of the citizen as the political subject in supranational parliamentary democracy,Footnote 36 the systematic involvement of civil society as an alternative form of democratic inputFootnote 37 and a focus on deliberative democracy.Footnote 38 In the following, I will suggest that inclusive compromise can, to a degree, compensate for the lack of those procedural and substantive mechanisms that legitimize political rule at the national level. This legitimizing work is done through the core feature of inclusive compromise and through the process of reaching inclusive compromise: the recognition of difference conferred through mutual, generous concessions and expressed in communication characterized by justification, perspective-taking and empathic concern. In doing so, I will not discuss institutional mechanisms of accommodation as set up in the EU's political system: such mechanisms, including constitutional rigidity, over-sized majorities, subsidiarity and proportional institutional composition have been amply described by theorists of consociational and consensus democracy.Footnote 39 Instead, I will look at the processes through which diversity can be accommodated at the micro level of interaction (between political negotiators) and at the macro level of governance (between constitutional systems). In short, I will discuss how the search for compromise should be constructed, and what needs to be ‘off limits’ in this search, in order to contribute to legitimizing supranational governance.
TWO TYPES OF COMPROMISE
Before discussing in the next section why, at what level and through which processes compromise can legitimize the generation of binding rules beyond the nation-state, I need to outline what I mean by ‘compromise’. In the introduction to this volume, Bellamy, Kornprobst and Reh identify compromise as one possible solution to a situation of conflict. An agreement distinct from consensus, compromise has three defining features: first, all participants to the agreement must make concessions; second, those concessions must be voluntary rather than coerced; third, although parties reach an agreement through compromise, their grounds for conflict will persist.Footnote 40 As argued in the introduction, compromises can come in different shapes and forms; they differ more specifically in the nature of concessions made, in degrees of (non-)coercion, and in whether (or not) the grounds for conflict are transformed.Footnote 41 In the following, I will build on the introduction to this volume as well as previous work by Bellamy and Hollis,Footnote 42 MargalitFootnote 43 and RehFootnote 44 to distinguish two types of compromise –‘bartered’ and ‘inclusive’– according to their characteristics and according to the process through which they are reached.
The introduction to this volume maps a continuum for each of the three defining features of compromise. First, concessions can stretch from minimal, pain-free and strategic to generous, costly and social moves; second, in the absence of overt coercion, interaction can range from competitive gain maximization to cooperative accommodation; third, albeit persisting, the parties' reasons for conflict can vary as to whether and how much they are elucidated or transformed.Footnote 45
A bartered compromise– an ‘anaemic’ agreement, as Margalit calls itFootnote 46 – sits at the far left end of each continuum. To reach such a compromise, all parties concede, but their concessions will be purely strategic; the minimum moves necessary to strike a deal, they are tightly circumscribed by an actor's predefined preferences and payoff matrix. A bartered compromise is struck on the terrain of the ‘trader’;Footnote 47 actors ‘bring something to a market and take something away, after exchanging freely with others to mutual advantage’.Footnote 48 In short, individual gain maximization – rather than mutual accommodation – is at the core of a bartered agreement. If compromise, indeed, mediates the tension between cooperation and competition,Footnote 49 then bartered compromise tilts heavily towards the latter. Finally, built through minimal, pain-free and strategic concessions, a bartered compromise has little transformative potential. No compromise agreement can, or aims to, do away with the underlying grounds for conflict, but a bartered compromise cannot even contribute to elucidating them.
This is due to the process leading up to such an agreement. The concessions necessary for a bartered compromise are made in the strategic process of competitive (or distributive) bargaining rather than in the integrative (or cooperative) variant of negotiation.Footnote 50 The two modes of bargaining share a key feature: aimed at maximizing wants, actors follow a volitive rather than an epistemic or normative logic.Footnote 51 Where actors bargain – no matter in which way – they do not strive to persuade their fellow negotiators to converge on a single viewpoint or to empathize with the reasons behind a negotiator's preferred course of action. Bargaining intends to change behaviour and positions, not preferences or attitudes;Footnote 52 in contrast to more deliberative forms of interaction, it makes ‘no efforts at changing the minds of the others about what they want or what they perceive to be right’.Footnote 53 More specifically, although the concessions behind a compromise must never result from coercion, in a bartered agreement ‘more for one means less for the other’.Footnote 54 Here, bargaining is played out as a competitive game; like traders in a market, actors attempt to extract the maximum from their opponents for the smallest possible price. They do not try to construct mutually beneficial and inclusive solutions that would require more extensive concessions than a strict focus on payoffs would allow.Footnote 55 In this process, an actor's success is defined by her bargaining power, grounded either in material capabilitiesFootnote 56 or in different preference intensities, exit options and alternatives to negotiated agreement.Footnote 57 Actors will only split the difference equally where bargaining resources are distributed equally too; as Margalit puts it, ‘Meeting halfway may…be the result of an anemic compromise, but only if the two sides are comparable in their bargaining strength.’Footnote 58
In spite of sharing the three defining features with a bartered compromise, an inclusive compromise differs from it with regard to the types of concessions made, the manifestation of non-coercion and the transformative potential of the negotiation process. Sitting at the far right side of each continuum identified in the introduction to this volume, such a ‘sanguine’ agreement, as Margalit calls it, can be described as ‘an anemic compromise with additional features, the most important being recognition’.Footnote 59 In their search for inclusive compromise, actors will not – and need not – change the preferences and values underlying their negotiation positions, but they need to make more costly and painful concessions than would be necessary for a bartered agreement. Hence, an inclusive compromise is not struck on a trader's terrain. Of course, to reach such an agreement, parties need to give and take, and they need to identify the necessary moves strategically. Yet, parties in search of inclusive compromise do more. Even though actors are not open to changing their cherished beliefs or adapting their preferences accordingly – as they would do in the more deliberative search for consensusFootnote 60 – they will engage in the wider, more social process of accommodating each other's concerns, practised ‘as part of the search for conditions of mutual acceptability that reach towards a compromise that constructs a shareable good’.Footnote 61 Their interaction is characterized by more than the mere absence of coercion: combining an individualist logic of volition with a strong motivation for sustained cooperation, actors will be ready to concede more generously than their strategic position and bargaining resources would require. To ‘confer recognition’, an inclusive compromise may ‘even involve a measure of sacrifice from the strong side, not driving as hard a bargain as it could’.Footnote 62 In addressing the tension between cooperation and competition, inclusive compromise therefore tilts towards the former. Finally, built through generous, costly and social concessions, the process of reaching an inclusive compromise has a transformative potential. Unlike parties to a consensus, actors would have preferred a different outcome to their negotiation; they are fully aware of the costs that their compromise entails. Yet, through the negotiation process, parties to an inclusive compromise will have gained a wider awareness, not only of each other's goals and positions but also of the reasons underlying their claims. Although the grounds for conflict persist, actors' perceptions of their ‘opponents’ and of the situation of conflict itself can therefore be elucidated and transformed. As was the case with bartered agreement, all three characteristics of inclusive compromise are owed to the process through which it is reached.
The particular type of concessions required for an inclusive compromise are made in a process of integrative bargaining, preceded by a stage of ‘thin’ arguing.Footnote 63 Integrative bargaining shares one key characteristic with its distributive variant: actors do not aim to converge on a ‘synthesis’Footnote 64 about the ‘right course of action’;Footnote 65 like the competitive negotiators or traders discussed above, they follow an essentially volitive logic. However, actors willing to concede equally and generously must combine a volitive logic with the motivation to cooperate and with trust in diffuse reciprocity; both conditions underlie the willingness to concede equally and generously.Footnote 66 Indeed, integrative bargaining maximizes wants in such a way that the preferences of all parties around the table can be accommodated.Footnote 67 Agreement must be built through far-reaching concessions, and such accommodation requires actors who are strategic but cooperative, and whose interest in substantive ‘mutually satisfying solutions’Footnote 68 is combined with an interest ‘in the character of the negotiation process itself’.Footnote 69 To reach agreement, these actors resort to bargaining speech acts such as suggesting, offering, promising, conceding, upholding and retreating concessions, linking issues, trading compensations and agreeing on a second best;Footnote 70 they share information and candidly speak ‘their minds about what they want’.Footnote 71 Based on a logic of cooperation and on trust, parties engage in a process of mutual accommodation, including each other's interests and values as far as possible. Such accommodation is at the core of inclusive compromise.
Hinging on rich communication, but not on deliberation, integrative bargaining is not geared towards changing actors' deep-seated interests, values and beliefs. Yet, the granting of mutual concessions requires that these interests, values and beliefs are exchanged, explained and understood, and that actors trust each other's willingness to concede reciprocally. To settle a conflict successfully, integrative bargaining must therefore be preceded by a communicative process that builds actors' willingness to concede and to concede generously. I call this process ‘thin’ arguing.Footnote 72
International negotiations can be played out in either an arguing or a bargaining mode or in a combination of the two; each mode differs according to underlying actor motivation, procedural characteristics and substantive effects. If bargaining can play out in a competitive and an integrative variant, arguing can come in a ‘thin’ and a ‘thick’ form. The two are identical in procedural terms: negotiators who argue try to solve conflicts by giving reasons and by justifying their preferred course of action.Footnote 73 They do so by using a set of distinct speech acts such as stating, asking, explaining, justifying, contradicting, agreeing, upholding or retreating arguments.Footnote 74 Yet, depending on whether negotiators argue in a ‘thin’ or a ‘thick’ sense, their underlying motivations and the justifications used will differ.
The goal of ‘thick’ arguing is to reach consensus on the right course of action.Footnote 75 ‘Thick’ arguing is targeted at – and, under certain conditions, can translate into – substantive persuasion and preference change and, thus, lead to reasoned consensus. This mode of interaction has been covered extensively by the deliberative strand in European Studies and International Relations (IR), and, given my interest in compromise rather than consensus, ‘thick’ arguing is of less relevance here.
When arguing ‘thinly’, actors try to reach agreement by convincing co-negotiators to take a particular course of action, but they do not target each other's preferences as the ‘ordered and weighted set of values placed on future substantive outcomes’.Footnote 76 As such, ‘thin’ arguing does not imply that actors are open to being persuaded, ready to see their beliefs challenged by the better argument or prepared to adopt altruistic positions; they will only choose ‘a reasoning style, in which actors abstain from using threats and promises, and try to make their proposals plausible by referring to general principles and norms’.Footnote 77 These can be substantive norms, on which claims of ‘factual truth or normative validity’ are based.Footnote 78 But they can also be procedural principles, such as equal treatment, fairness or the right to be heard and accommodated. To achieve their goals, actors who argue ‘thinly’ will mix other- or public-regarding arguments with self-regarding justifications; the latter will, first and foremost, explain a particular position taken.
In short, ‘thin’ arguing is an interpersonal process, designed to lead negotiators ‘to understand, appreciate and feel for one another’.Footnote 79 As such, ‘thin’ arguing works as the crucial ‘pre-stage’ to actual negotiation in a situation of conflict. Characterized by justification (not by claims), dyadic in its communication structure and mixing self- as well as other-regarding arguments,Footnote 80 it is a process during which actors give reasons, talk and listen to each other, and check their initially held positions in order to construct a cooperative atmosphere and to bolster the willingness to concede.Footnote 81
In sum, both bartered and inclusive compromises can offer short-term solutions for a conflict which actors agree to settle by way of negotiation or majority decision; as such, both can be legitimate agreements. Yet, the potential to legitimize a decision in need of normative justifiability differs starkly between the two types of agreement. This is due to their different purposes – mutual advantage as opposed to mutual accommodation – as well as to the different preconditions for distributive and integrative bargaining. In the next section, I will outline why only inclusive compromise has the potential to legitimize the EU as a divided, multilevel and functionally restricted polity.
THE LEGITIMIZING POTENTIAL OF INCLUSIVE COMPROMISE
In the comparative study of political systems, scholars have discussed different motivations behind the acceptance of political rule and rules; acceptance is understood as the behavioural expression of support, while motivations are the reasons for granting this support.Footnote 82 Such motivations form a ‘complex of reasons, moral as well as prudential, normative as well as self-interested’.Footnote 83 Within this complex of reasons, legitimacy relates to ‘the moral or normative aspect of power relationships’.Footnote 84 As such, legitimacy is distinct from alternative motivations, most prominently incentives driven by self-interest.Footnote 85 David Beetham identifies three conditions for legitimate political rule: conformity to established rules or legal validity; the justifiability of rules based on the congruence between societal values and their structural realizations; and the express consent of the governed by way of democratic procedures.Footnote 86
As argued above, the EU – a divided, multilevel and functionally restricted polity – faces distinct challenges with regard to both normative and utilitarian motivations behind the acceptance of its political rule. First, as a highly divided polity, the EU lacks the preconditions for fully fledged competitive democracy as the established way of bringing about the express consent of the governed; in particular, it lacks a pre-political community, an effective political space and social solidarity across national boundaries. Hence, majoritarianism is problematic to apply, because it risks creating a systemic overlap between outvoted minorities and national borders, and because it requires trust in the regular alternation between government and opposition. Second, due to its multilevel nature, diverse political systems coexist in the European polity; each system is justifiable by its citizens' affiliation with a set of fundamental values as expressed in institutions and rights. Third, given its functional restriction, the EU lacks the legal competence and financial resources to tie minorities in through financial compensation and welfare payments; hence, the Union is equally challenged when it comes to motivations for accepting political rule that are based on incentives or self-interest.
In short, the EU needs to rely on alternative mechanisms to make its decisions normatively justifiable and to bolster the acceptability of supranational governance. Such alternatives have been amply discussed in the literature, ranging from increased transparencyFootnote 87 over Pareto-efficient market regulationFootnote 88 to deliberative forms of decision-making.Footnote 89 In the following, I suggest that compromise has the potential to do additional legitimizing work at the supranational level, by compensating for the lack of preconditions of competitive democracy and social redistribution, and by successfully accommodating diversity in a divided, multilevel polity.
This potential is, however, limited to inclusive compromise; albeit a compromise, a bartered agreement is unsuitable for legitimation beyond offering short-term solutions to a conflict. As argued above, bartered compromises are struck by traders in markets. Based on a logic of competitive exchange, agreement is reached through a process of distributive bargaining by actors who are willing to trade concessions, who are equipped with the resources necessary to exchange, and who feel each other's threats and promises to be credible.Footnote 90 A bartered agreement will therefore be stable as long as: (1) the advantages gained last in their agreed form; (2) no party to the agreement acquires resources that allow her to change the deal in her favour; and (3) the package deal remains intact (where the agreement is composite). Condition (3) is, in turn, dependent on the continued existence of conditions (1) and (2).Footnote 91 All parties to bartered compromises therefore know that these agreements are ‘temporary, are fixed to the particular circumstances in which they are made, and can be reopened at the next opportunity’.Footnote 92 As such, bartered compromises offer substantive, non-coercive solutions to conflicts, but they have no independent procedural compliance pull.
By contrast, inclusive compromise is reached through an integrative process, where concessions are not only driven by advantages and resources but by group goals and a valuation of cooperation itself.Footnote 93 Inclusive compromise therefore has strong legitimizing potential. Based on the recognition of difference in micro-level negotiations and across the macro-level polity, inclusive compromise signals non-domination and increases actors' basic trust in the preservation of their core (constitutional) choices. Such recognition is crucial in a highly divided polity where different systems of governance coexist, and it is expressed in the process through which inclusive compromise is reached. The generous concessions of integrative bargaining bolster actors' trust in accommodation and the alternation between issue-specific minorities and majorities, while the justification, perspective-taking and empathic concern of ‘thin’ arguing improve actors' understanding of the rationale for their collective decisions, and for each party's positions and concerns.
Indeed, as argued earlier, an inclusive compromise is a ‘barter plus’, with recognition being the most important additional feature.Footnote 94 Through the recognition of difference, inclusive compromises confer ‘legitimacy on the point of view of the other side’; by doing so, such agreements signal non-domination and ‘suggest a semblance of equality between nonequals’.Footnote 95 Given the demanding preconditions of deliberation, inclusive compromise is more likely to be reached than consensus; yet, in the highly divided polity that is the EU, an agreement based on the recognition of difference is also normatively more desirable than an agreement that synthesizes positions.Footnote 96 Inclusive compromise also has more legitimizing potential than a bartered agreement, because it signals the willingness to rank successful cooperation more highly than the most advantageous deal possible. The recognition of difference is crucial in legitimizing supranational governance. Both at the micro (or horizontal) level between negotiators, and at the macro (or vertical) level between systems of governance, recognition gives actors basic security in the preservation of their core choices, and therefore facilitates the acceptance of political rules and rule.
At the micro level, recognition is conferred in the process through which inclusive compromise is reached. Indeed, as argued above, such agreements are based on the greatest possible inclusion of all parties' interests, values and beliefs. Based on a logic of cooperation, inclusive compromises are built through mutual accommodation. Struck in a process of integrative bargaining, they require mutual and generous concessions, painful even for the stronger side. Inclusive compromise, therefore, calls for ‘a measure of sacrifice’,Footnote 97 with all sides ‘deliberately decreasing [their] share compared to possible agreements that [they] might have extracted’.Footnote 98 Sacrifices made by the strongest negotiators – benefiting either from a permanent advantage due to material capabilities, or from an issue-specific advantage due to asymmetrical preferences and exit options – send clear legitimizing signals: of non-domination, of ‘commitment to cooperation rather than competition’,Footnote 99 and of the possibility to trust in reciprocity. Decision-making in the EU's Council of Ministers can illustrate the premium placed on accommodation and non-domination in supranational governance: even where national representatives could decide by qualified majority, in 75 to 80 per cent of cases they refrain from voting and, thus, from outvoting individual member states or groups of countries.Footnote 100
The willingness to ‘sacrifice’ is built in the process of ‘thin’ arguing, which encourages actors ‘to express their hopes and fears and to listen to one another's concerns, yet not lose track of real differences’.Footnote 101 This process requires constant communication between actors about their grounds for (in addition to their positions on) the conflict; actors justify their demands and give reasons for their claims so as to make their co-negotiators understand these demands and claims from their points of view. Justifications can be purely self-regarding (e.g. when actors invoke the domestic political repercussions of a particular EU regulation). Yet, where communication is geared towards increasing all actors' understanding of the collective decision, rather than towards maximizing individual gains, even self-regarding arguments must be moderated and presented ‘at a certain level of generality and in ways that appeal to a shareable norm of justice or interest’.Footnote 102 In the EU, ‘thin’ arguing dominates wherever member states' representatives negotiate, be this in everyday or constitutional decision-making. Their interaction is played out in tours de table, during which positions are stated, explained and justified repeatedly; these are followed up by ever more inclusive, accommodating and, accordingly, ever more complex legal and political texts.
When arguing ‘thinly’, actors build up a willingness to make and reciprocate painful concessions through two interpersonal mechanisms: cognitively, they take each other's perspective, imagining ‘the effect of the situation on the other, given his or her needs and desires’;Footnote 103 emotionally, they express empathic concern, as ‘an other-oriented emotional response elicited by and congruent with the perceived welfare of someone else’.Footnote 104 By reducing ‘egocentric perceptions of fairness’,Footnote 105 perspective-taking and empathic concern can lead actors to moderate self-regarding arguments and claims; they can also facilitate the search for integrative, efficient but hidden solutions.Footnote 106 Yet, perspective-taking and empathic concern can do more: actors confer legitimacy on each other's points of view by signalling understanding and appreciation; they openly recognize different positions and their underlying reasons; and they demonstrate a willingness to cooperate in the face of such difference. As such, perspective-taking and empathic concern can increase parties' ‘satisfaction with the negotiation process’.Footnote 107
In sum, having one's position listened to, considered and empathized with in a decision-making process can make the decision outcome more justifiable and, hence, more acceptable even to the party that had to concede most generously.Footnote 108 The recognition expressed in this process, combined with the greatest possible accommodation of all parties' values, interests and beliefs, can increase actors' basic security in the preservation of their core choices. In addition, the fact that the concessions made for an inclusive compromise are mutual and potentially painful even for the strongest side makes being part of a losing minority more palatable: actors know that the losing minority is issue specific rather than systemic, and that they can trust in the reciprocal alternation between issue-specific minorities and majorities, even where such alternations require ‘sacrifice’ from the stronger side. Without the preconditions for majoritarianism, recognition and mutual accommodation can thus increase the normative justifiability – and, hence, the acceptance – of political decisions.
Yet, the recognition of difference and mutual accommodation not only work between negotiators at the supranational level: they are equally important to increase the acceptance of supranational governance by citizens at the domestic level. As argued above, one condition for legitimacy is the justifiability of political rule based on a congruence between societal values and their structural realization. Citizens affiliate with a set of core values, balanced and expressed in their polities' structures and rights; this balance varies across EU member states, and citizens' affiliation with the respective balance matters crucially for domestic legitimacy.Footnote 109 This means, in turn, that citizens' basic trust in the preservation of their member states' core constitutional choices must be preserved. Hence, inclusive compromise has a strong legitimizing potential at the macro level too, where it works through constitutional compatibility. Instead of striving for synthesis, and instead of attempting domination based on bargaining strength, here, too, inclusive compromise expressly recognizes the EU as ‘a union among distinct peoples, distinct political identities, distinct political communities’.Footnote 110 Inclusive compromise thus assumes that core constitutional choice is preserved at the domestic level, and that different choices coexist across the European polity. Such constitutional compatibility is not only fostered by the EU's functional restriction; institutionally, it is preserved in opt-outs for individual member states from specific policy areas (as is the case for matters of justice and home affairs for the UK), protocols hedging the domestic application of norms or rules (as done by the Protocol on the Application of the Charter of Fundamental Rights for Poland and the United Kingdom), or provisions of flexible integration through the enhanced cooperation of a group of member states (as foreseen in Title IV in the Treaty on European Union).
THE LIMITS OF INCLUSIVE COMPROMISE
So far, I have made the following arguments. First, given its divided, multilevel and functionally restricted nature, the EU cannot rely on established mechanisms of legitimation. Second, inclusive compromise differs systematically from bartered agreement with regard to the types of concessions required, the degree of (non-)coercion, and the transformative potential of the negotiation process. These differences stem from the process through which inclusive compromise is reached – a combination of integrative bargaining and ‘thin’ arguing – which gives such agreements procedural as well as substantive compliance pull. Third, inclusive compromise has the potential to legitimize supranational governance more widely: recognition as expressed in mutual, generous concessions as well as communication characterized by justification, perspective-taking and empathic concern builds trust in non-domination and diffuse reciprocity and bolsters actors' basic confidence in the preservation of their core (constitutional) choices. Compensating for the lacking preconditions of fully fledged competitive democracy, the reliance on inclusive compromise can thus do crucial legitimizing work at the micro and macro level in the highly divided polity that is the EU. Given this legitimizing potential of inclusive compromise, I will, next, suggest that the limits of reaching such agreements partly define the more general limits of cooperation between EU member states. In what follows, I will outline two such limits.
As argued above, the EU is, first and foremost, an arena for the generation of binding rules beyond the nation-state. The EU is also a multilevel polity and therefore dependent on the domestic implementation of its rules. Hence, the acceptance of supranational rule hinges on the legitimacy of the EU's member states themselves.Footnote 111 Each member state will, in turn, draw legitimacy from its particular constitutional choice of ‘fundamental values’,Footnote 112 and, more specifically, from how the triad of citizens' civil, political and social rights is balanced.Footnote 113 These rights and their configuration are closely related to the justifiability of political rule across the EU's member states.
If the EU is dependent on the legitimacy of its member states; if citizens across political systems need to be secure about the preservation of their core choices in order to accept political rule; and if the recognition of difference through inclusive compromise bolsters such security, then the transfer of both policy competences and individual rights to the supranational level has a clear substantive limit: legitimate rule-making beyond the state must not undermine legitimate rule-making within the state.Footnote 114 Otherwise, supranational cooperation not only risks challenging a specific but crucial facet behind the acceptance of political rule at the domestic level, namely citizens' affiliation with a balanced set of fundamental values and their structural realization. What is more, instead of acknowledging and respecting the differenceFootnote 115 expressed in domestic constitutional choice, supranational cooperation would expressly challenge such choice and, as such, undermine the legitimizing potential of inclusive compromise in a divided and functionally restricted polity. Any leeway in adding competences and rights at the supranational level must therefore respect one limit: it must be compatible with national constitutional choice, and such compatibility must be recognizable.Footnote 116 Otherwise, further integration risks undermining the domestic balance of citizens' civil, political and social rights, with the system's normative justifiability accordingly challenged at both the national and supranational level.
Even where constitutional compatibility is preserved at the macro level, there are issue-specific limits to the possibility of integrative bargaining at the micro level. Indeed, mutual concessions – including those by the ‘conventionally strong side’ to the ‘conventionally weak side’Footnote 117 – will be granted more easily on some issues than on others. Scholars have argued that it is easier to reach a compromise on distributive issues, or on what Hirschman calls ‘more or less’ types of conflict, than on ideological issues, or on what Hirschman calls ‘either/or’ types of conflict.Footnote 118 On the former, the difference can be split, while the latter may involve ‘clashes between incommensurable identities, world views or types of claim’.Footnote 119 In the EU more specifically, the readiness to concede mutually and generously is crucially dependent on who bears the costs of an agreement (at the micro level) or of further integration (at the macro level). The mutual concessions of an inclusive compromise are granted more easily under two conditions.
First, where actors try to solve distributive or ‘more or less’ conflicts, mutual concessions will be granted more readily and will have a stronger legitimizing potential where the costs of agreement are dispersed rather than concentrated, and where these costs are dispersed across rather than within national boundaries. Indeed, the bearing of such costs signals a willingness to make mutual concessions by the greatest possible number of actors and cuts across the predominant cleavage of the European polity. In turn, inclusive compromise will be more difficult to achieve where the costs of agreement are concentrated within national boundaries. Unproblematic in a majoritarian system, the concessions required – costly for a small group of actors, minimally painful for the large majority – come close to the unilateral ‘sacrifices’ that are so normatively problematic in the divided polity that is the EU, and that are unable to serve the wider social function of accommodation that is crucial to legitimize supranational governance.
Second, where actors try to solve ideological or ‘either/or’ conflicts, mutual concessions will be more difficult to grant. However, accommodation is possible where the costs of agreement can be borne by the supranational system rather than by one or several member states or by a group of actors within a member state. There are different procedural mechanisms for achieving such ‘systemic accommodation’, including member states' constitutionally guaranteed opt-outs from specific policy areas, protocols allowing for national exemptions from the application of supranational norms, or closer cooperation between a group of member states. Such systemic compensation expressly recognizes actors' concerns in cases of ideological difference, without upsetting domestic constitutional choice and without burdening individual states with the costs of agreement. Yet, this mechanism has a clear limit: systemic accommodation is only possible where it does not undermine the Union's constitutional foundations; therefore, it is not an option where the functioning of the EU's institutional framework or single market are concerned.
In sum, the limits to inclusive compromise are grounded in its defining feature: the recognition of difference, expressed in the granting of mutual concessions. At the macro level, the limits of cooperation lie in the compatibility between the supranational and the diverse national configurations of citizens' civil, political and social rights. At the micro level, issue-specific limits are grounded in the dispersal of costs across rather than within national boundaries (where conflict is distributive), and in the possibility of systemic accommodation (where conflict is ideological).
CONCLUSION
This article started from the observation that compromise is a ubiquitous yet under-theorized and under-studied feature of European integration, and attempted to shed light on the concept of compromise, on the role that compromise can play in legitimizing supranational governance and on the limits to reaching compromise in EU decision-making and across the European polity. The article argued that, given its divided, multilevel and functionally restricted nature, the EU is highly dependent on the legitimizing potential of compromise and of inclusive compromise more specifically. Inclusive compromise is distinguished from bartered agreement by the explicit recognition of different negotiation positions (at the micro level) and of diverse domestic constitutional choice (at the macro level); by mutual and generous concessions that can be painful even for the stronger side; and by a process of ‘thin’ arguing, driven by justification, perspective-taking and empathic concern.
The article argued that the legitimizing potential of inclusive compromise is threefold. First, the recognition of difference in micro-level negotiations and across the macro-level polity increases actors' security in the preservation of their core choices; second, mutual and generous concessions, in combination with perspective-taking and empathic concern, increase actors' trust in accommodation, reciprocity and the alternation between issue-specific minorities and majorities; third, ‘thin’ arguing improves – and potentially transforms – actors' understanding of the grounds for conflict and of the reasons behind the collective decision reached. Through these mechanisms, inclusive compromise can contribute to responding to the challenges of legitimizing the EU as a divided, multilevel and functionally restricted polity. Given the legitimizing potential of inclusive compromise, the article concluded by identifying two limits to reaching such agreements: the possibility of accommodation at the micro or horizontal level of governance, and the need for constitutional compatibility at the macro or vertical level of governance. The issue-specific limits to inclusive compromise depend on whether core constitutional choice is left intact at the national level; on whether the costs of supranational agreement are dispersed across as well as within member states; and on whether ideological conflict can be accommodated by systemic compensation rather than by individual concessions.
This article attempted to get closer to the under-studied concept of compromise and aimed to improve our understanding of the neglected potential of compromise in legitimizing supranational governance. In doing so, the article has raised two main questions for follow-up research at the intersection of the empirical and the normative study of European integration. First, in order to understand the legitimizing potential of inclusive compromise more fully, we need to explore how exactly recognition, perspective-taking and empathic concern play out in micro-level negotiations, and to investigate whether the process of ‘thin’ arguing does, indeed, increase actors' willingness to concede and bolsters the perceived legitimacy of supranational decisions. Second, in order to grasp the limits of inclusive compromise more fully, we need to investigate systematically whether, where and how supranational rule potentially upsets core domestic choice, and ask how constitutional compatibility can be guaranteed across levels in the European polity.
