Transcript Learning from Difference: The New Architecture of

Learning from Difference:
The New Architecture of Experimentalist
Governance in the EU
Charles Sabel
(Columbia Law School)
Jonathan Zeitlin
(University of Wisconsin-Madison)
A novel polity without a state
• Despite recurrent crises, the EU is creating
a single market, while constructing a
framework within which MS can protect
public health and safety (broadly
understood) in nationally diverse ways
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A new governance architecture
• EU’s regulatory successes rest on a new
architecture of decision making
• A recursive process of framework rule making and
revision based on networked deliberation among
European and national actors
• New architecture increasingly widespread across
EU policy making despite not being explicitly
grounded in Treaties and directives
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I. Elements of the new architecture
• Framework goals and metrics for assessing
progress towards them established jointly by EU
institutions and MS
– E.g. full employment, ‘good water status’, unified
energy grid
• Lower-level units (national ministries, regulatory
authorities, + collaborating actors) given freedom to
advance these goals as they see fit
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Elements of the new architecture (2)
• In return for autonomy, lower-level units must
– report regularly on their performance, esp. as measured
by agreed metrics
– participate in peer reviews where their results are
compared to others pursuing other means to same ends
• Framework goals, metrics, & procedures
periodically revised in light of experience
– By actors who initially established them + other
participants whose views are recognized as important
for full & fair deliberation (e.g. civil society orgs.)
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Experimentalist governance as a
functional concept
• 4 key architectural elements as a set of necessary
functions which can be performed through a
variety of institutional arrangements
– No one-to-one mapping of governance functions to
specific institutional mechanisms, and vice versa
– A single governance function (e.g. monitoring/review
of implementation) can be performed by multiple
institutional devices, singly or in combination
– A single institutional mechanism (e.g. formal peer
review) can perform several analytically distinct
governance functions
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EU governance as directlydeliberative polyarchy (DDP)
• Deliberative: uses argument to disentrench settled
practices and redefine interests/preferences
• Directly-deliberative: uses the concrete
experience of actors’ differing reactions to current
problems to generate novel possibilities for
consideration
• Polyarchic: a system in which local units learn
from, discipline, and set goals for each other
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A machine for
learning from diversity
• Well-suited to heterogeneous settings like the EU
– where local units face similar problems, and can learn
from each other’s separate efforts to solve them, even if
solutions can rarely be generalized straightforwardly
• Transforms diversity into an asset rather than a
obstacle to closer integration
• A system of experimentalist governance
– in the pragmatist sense of systematically provoking
doubt about its own assumptions and practices, while
treating all solutions as provisional and corrigible
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Multiple routes to the EU’s new
governance architecture
• Federated regulation in privatized infrastructure
– Fora & councils of regulators in telecoms, energy
• Networked administrative agencies protecting
public health and safety
– Drug authorization, occupational health & safety,
(environmental protection)
• Open Methods of Coordination (OMC)
– Employment, social protection/inclusion,
education/training
• [Operational coordination among nat’l authorities
& EU agencies in Justice & Home Affairs]
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Extensions of the new
architecture
• Responses to catastrophe
– Food safety, maritime safety
• Prudential regulation in advance of failure
– Financial services (Lamfalussy Process)
• Revision of existing centralized regulation
– Competition/antitrust policy, state aid
• From rules to rights
– Anti-discrimination policy, fundamental rights
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Minimal scope conditions
• Scope conditions for experimentalist governance
broader than historical contexts of emergence in EU
• Strategic uncertainty
– Policy makers recognize that they do not know how to achieve
their declared goals
• Multi-polar or polyarchic distribution of power
– No single actor able to impose preferred solution w/o taking into
account views of others
• Opens up possibility of transforming distributive
bargaining into deliberative problem solving through
institutional mechanisms of experimentalist governance
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II. Responses to standard objections
• Undermining the rule of law?
– Lack of accountability in recursive rule making
• Ineffectiveness/lack of teeth?
– Deliberative governance as ‘soft law’
– At best a secondary complement to ‘hard law’ based on
political bargaining
• Subverting democracy?
– Technocratic deliberation among transnational expert
networks as a threat to democracy
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The limits of
principal-agent governance…
• Accountability in representative democracy is based on
principal-agent model
• But principal-agent accountability depends on ability of
principals to specify goals precisely enough to give clear
instructions to agents or to recognize reliably when actions
do or don’t serve specified ends
• Model breaks down under conditions of
uncertainty/volatility when solutions to problems can only
be identified as they are being pursued
• Recursive redefinition of ends and means in EU
experimentalist governance as a response to this situation
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…dynamic accountability
through peer review as an alternative
• Dynamic accountability not as conformity to a preset rule,
but as requirement to explain reasons for exercising
discretion in choosing one particular way of advancing a
common project, subject to review by peers with sufficient
knowledge to evaluate such explanations
• Peer review of EU experimentalist governance through
fora, networked agencies, councils of regulators, OMCs
• Processes through which EU decision-makers learn from
and correct each other even as they set goals and
performance standards for the Union
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Experimentalist governance
is not soft law
• New architecture routinely results in revisions of
EU law, or elaboration of revisable standards
mandated by law and principles that may
eventually be given binding force
• For every decision-making process that produces
non-binding legal sanctions, there is typically
another in the same domain where noncompliance can have draconian consequences
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Destabilization regimes
• Sanctions in EU experimentalist governance
often take the form of what may be called a
“destabilization” regime”:
– A set of mechanisms for unblocking impasses
in framework rule making and revision by
rendering the current situation untenable while
suggesting -- or causing the parties to suggest -plausible and superior alternatives
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Varieties of destabilization regimes
• Destabilization regimes can take many forms
– Requirement to deliberate in public
• E.g. EU food safety “conflict clause”
• In cases of disagreement over scientific risk assessment
between EFSA and national authorities, both sides are obliged
to submit a joint document explaining their differences
• But doing so would put both parties at risk because either
could lose the debate in full public view, while political
instrumentalization of the issue could endanger future
collaboration and scientific exchange
• This gives both parties strong incentives to continue
deliberation until an agreement that both can defend is public
is reached
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The right to challenge and the
obligation to explain
• E.g. EU competition policy network
• The Commission has the right to take over cases
from national competition authorities, but must
formally justify its decision to other members of
the network
• Not just a vertical but also a horizontal right of
challenge: any member of the network can
demand a review of another national competition
authority’s handling of a case
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Penalty defaults
• At the other extreme are penalty defaults
• Instead of imposing deliberation requirements, the central
authority creates brutal disincentives for refusal to
deliberate
• Rules sufficiently unpalatable to all parties that each is
motivated to contribute to an information-sharing regime
that allows fair and effective regulation of their
interdependence
• In a world where standard rule making produces such
unpredictable consequences as to be unworkable, the
easiest way to generate penalty defaults is to (threaten to)
engage in traditional rule making
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An EU example:
the Florence Electricity Forum
• Unblocking of deliberative impasses on thorny
issues such as cross-border tarification by
Commission threats to invoke competition law
powers (antitrust, merger control, state aid rules)
– Could leave obstructive/intransigent actors worse off
than a compromise reached in the Forum
• Commission’s powers of legislative initiative and
delegated regulation as a means of inducing MS
and private actors to cooperate in framework rule
making for fear of unpredictable consequences of
an imposed alternative
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Bargaining in the shadow of hierarchy
or deliberating when hierarchy
becomes a shadow?
• From this it follows that EU experimentalist governance
can rarely be understood as regulatory cooperation in the
shadow of traditional public hierarchy
• ‘Bargaining in the shadow of the state’ (Scharpf, Héritier)
assumes that public authorities can effectively regulate in
case of deadlock, mismanagement, or policy failure
• But both in the case of the public deliberation and penalty
default mechanisms, the EU induces the actors to provide
rules for themselves, presumably because it cannot itself
provide defaults that would do the job as well or better
• Not ‘bargaining in the shadow of hierarchy’, but
‘deliberating when hierarchy becomes a shadow’
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The Florence Forum revisited
• Competition law as a ‘negative control
instrument’, based on ex post, case-by case
procedures, which can’t produce fine-tuned
solutions like those developed by the Forum
• Further legislation, even if more stringent and
detailed, still needs to be interpreted and
implemented at national level; can’t address all
future needs in a rapidly evolving policy area
• Hence continuing need for rule development and
coordination through networked governance
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Democratizing destabilization
• Networked, experimentalist governance/DDP not
intrinsically democratic
• But dynamic accountability through peer review subject to
penalty defaults has a potentially democratizing
destabilization effect on domestic politics and the EU itself
• Requirement that each national administration justify its
rule choices publicly, in light of comparable choices by
others, allows domestic actors to contest official proposals
on the basis of richer information about feasible
alternatives than would otherwise be available
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Transparency and participation as
procedural requirements
• Transparency and participation as foundations for
democratizing destabilization
• EU becoming increasingly transparent and participatory
– ECJ case law decisions on administrative procedure and access to
documents
– Treaty revisions and EU regulations
– Progressive elaboration of legal transparency requirements in EU
networked governance
– Increasing tendency to establish requirements for ensuring active
participation by a broad range of stakeholders (incl. civil society)
• Directives establishing networked agencies and other EU regulatory
frameworks (e.g. water)
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