The Self‐Referential European Polity, its Legal Context and Systemic Differentiation: Theoretical Reflections on the Emergence of the EU's Political and Legal Autopoiesis

• Author: Jiri Priban
• Date: 01 July 2009
• DOI: http://doi.org/10.1111/j.1468-0386.2009.00472.x
• Published date: 01 July 2009

eulj_472442..461

The Self-Referential European Polity,

its Legal Context and Systemic

Differentiation: Theoretical Reflections on

the Emergence of the EU’s Political and

Legal Autopoiesis

Jiri Priban*

Abstract: This article starts by summarising major theoretical debates regarding Euro-

pean polity and governance. It highlights the role of statehood in those debates and

suggests moving beyond the constraints of institutionalist and constructivist perspectives

by adopting specific notions from the theory of autopoietic social systems. The following

part describes the EU political system as self-referential, functionally differentiated from

the system of European law, and internally differentiated between European institutions

and Member State governments. Although the Union transgresses its nation-state seg-

mentation, the notions of statehood and democratic legitimacy continue to inform legal

and political semantics of the EU and specific responses to the Union’s systemic tensions,

such as the policy of differentiated integration legislated by the flexibility clauses. The

democratic deficit of instrumental legitimation justified by outcomes, the most recent

example of which is the Lisbon Treaty, subsequently reveals the level of EU functional

differentiation and the impossibility of fostering the ultimate construction of a normatively

integrated and culturally united European polity. It shows a much more profound social

dynamics of differentiation at the level of emerging European society—dynamics which do

not adopt the concept of the European polity as an encompassing metaphor of this society,

but makes it part of self-referential and self-limiting semantics of the functionally differ-

entiated European political system.

Introduction

The growing systemic complexity of European political institutions, laws and admin-

istrative regulations has led to the creation of new political concepts, metaphors and

legal fictions, such as ‘polity without statehood’ and ‘differentiated integration’. The

concept of polity generally signifies a state-organised society, its form and process of

government. It assumes a system of legitimately exercised political power. In modern

democratic polity, power circulates between the people, party politics, administration

* Professor of Law, Cardiff Law School, Cardiff University.

European Law Journal, Vol. 15, No. 4, July 2009, pp. 442–461.

© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

and public opinion communicated through mass media.1While the principle of popular

sovereignty—sovereignty ‘by the people’—provides the system with democratic legiti-

macy, political parties struggle to win power by winning a majority of the votes ‘of the

people’ and thus form a government administering specific policies ‘for the people’,

which can be recursively evaluated by the public, affect political preferences and, thus,

contribute to the future processes of political majority building.

This power circulation does not exist in the EU. The EU political system circulates

power by the self-referential operations of its administrative organisation. State organi-

sation is missing but alternative forms of governing and processes of decision making

are no less powerful. The absence of two out of Lincoln’s three characteristics of

democratic government,2namely, government ‘of the people’ and ‘by the people’,

makes the EU’s political system one which primarily operates ‘for the people’ or, better,

‘for the peoples of the EU’. It is impossible to characterise the Union in common

terms of territoriality, government, population and—in case of democratic statehood—

popular legitimacy. In the absence of EU democratic government, the complex forms

and processes of the Union’s political decision making are commonly labelled as a

system of European governance.

Good governance is considered a major force integrating the emerging European

polity despite the absence of EU statehood and democratic government.3According to

this view, the form of European governance determines the form of the European

polity.4EU treaties and political documents thus interpret the obligation of good

governance as a commitment to the enhancement of the democratic legitimacy of EU

political decision making. The substantive objectives of good governance primarily

legitimised by instrumental efficiency are increasingly intertwined with the procedural

objectives of decision making ultimately legitimised by democratic principles and

values.5

In this article, I therefore start by summarising major theoretical debates regarding

the European polity and governance, highlight the role of statehood in them, and

suggest moving beyond the constraints of institutionalist and constructivist perspec-

tives by adopting specific notions from the theory of autopoietic social systems. This

theory better formulates the temporal, functional and self-referential aspects of Euro-

pean integration and avoids the epistemological trap to identify the particular concept

of polity, its organisational restraints and institutional hierarchies with the general

concept of society. In the following part, I therefore describe the EU political system as

self-referential, functionally differentiated from the system of European law, and inter-

nally differentiated between European institutions and Member State governments.

Although the Union transgresses its nation-state segmentation, the notions of state-

hood and democratic legitimacy continue to inform legal and political semantics of the

EU and specific responses to the Union’s systemic tensions, such as the policy of

differentiated integration legislated by the flexibility clauses. The democratic deficit of

instrumental legitimation justified by outcomes, the most recent example of which is the

1N. Luhmann, Die Politik der Gesellschaft (Suhrkamp, 2002), at 258.

2A. Lincoln, Speeches and Writings: Volume 2: 1859–1865 (Library of America, 1989).

3S. P. Riekmann, M. Mokre and M. Latzer (eds), The State of Europe: Transformations of Statehood from

a European Perspective (Cambridge University Press, 2005).

4L. Lindberg and S. Scheingold, Europe’s Would-be-Polity: Patterns of Change in the European Community

(Prentice-Hall, 1970).

5C. Joerges and R. Dehousse (eds), Good Governance in Europe’s Integrated Market (Oxford University

Press, 2002).

July 2009 The Self-Referential European Polity

443

© 2009 Blackwell Publishing Ltd.