Dignity, in Schiller’s view, is the closely related assertion of ethical control over our passions and preferences. This, too, involves a claim of personal authorship. It also involves the assertion of freedom, in this case freedom to reject preference and desire. And yet, in checking desire through a deliberate appeal to ethical reasoning, dignity depends on acknowledging the force of desire.15 Thus, according to Schiller, dignity stands in stark contrast to gracefulness. While dignity is the deliberate (and visible) assertion of ethical control over ones actions, gracefulness is the apparently effortless expression of ones ethical sensibilities in the course of action.16
Finally, dignity and grace come together, in that each depends on the presence of the other. Without the appearance of gracefulness, the successful control of preference and passion may simply suggest dull sensibilities. Conversely, without the appearance of dignity, the pervasive effortlessness of seemingly ethical action may suggest a lack of deliberateness here as well. Thus, while grace indicates the presence of ethical sensibilities, dignity legitimizes the subject as the deliberate author of her ethical actions.17
Consider now the European Court of Justice in the light of these ideas. The language in which we think about judging may, of course, have deep ramifications. And yet, without intimating any particular jurisprudential stance or conclusion,18 it makes sense to think of the judicial enterprise in roughly the following manner: when the judges of the Court interpret the treaty, they are engaged in purposive activity that nonetheless provides them with a certain measure of discretion. The inevitable freedom that inheres in this act of practical judgment, in turn, invites the interstitial expression of the judges’ ethical inclinations. In this way, a judge’s interpretation of the law is constrained and yet becomes her own.
Liberal intergovernmentalism generally ignores this freedom by assuming that the European Court of Justice, along with every other European institution and actor, merely carries out the preferences and goals of member state governments. To be sure, one of these preferences is the credibility of member state commitments. And another may be the designation of a third party to fill in certain gaps. But any discretion and autonomy granted on this model ultimately serves the interests of the member state governments. On this view, then, all “law talk” is understood as purely instrumental (or even epiphenomenal?) to the reliable transmission of political preferences over time. To the extent liberal intergovernmentalism acknowledges the existence of interpretive freedom that runs against the interests of the member states, this freedom must be considered negligible slippage in the gears of national preference aggregation. Only thus can the core claim still hold true: that the rational self-interest of member state governments explains the current state of European integration.
Both “neofunctionalist” and “institutionalist” accounts, in contrast, specifically acknowledge the Court’s interpretive discretion in interpreting the law. Most important, on this view, is the fact that the Court’s judgments interpreting the foundational treaties of European integration cannot be reversed absent unanimity of member state governments, consultation of the Parliament and possibly the Commission, and ratification in the member states. Add to this that the treaties are sufficiently incomplete or ambiguous to allow room for (and indeed to demand) interpretation, and you have what Thatcher and Stone Sweet have identified as a “strategic zone of discretion”19 or what Shapiro calls a “semi-autonomous decisional space” for the Court.20
Neither the appointment process nor the Court’s dependence on member state judiciaries (in the context of reference actions) offers member state governments much control over the E.C.J.’s decisions. As for the appointments process, the collegiate nature of the Court makes it difficult to assign responsibility for a decision to any particular judge. As for the member state judiciary, the Court has famously coopted member state judges by empowering the latter to exercise judicial review (at least more broadly than domestic judges had previously done), engaging member state judiciaries in a dialogue in “legalese,” and professional networking.21 To be sure, the dependence on member state judges has pushed the Court to develop its jurisprudence responsibly, such as developing a fundamental rights jurisprudence and tempering the scope of Community powers (especially under Articles 95 and 308 EC). But both of these latter developments, while in some sense “constraining” the Court, wound up improving the perceived legitimacy of the Court’s jurisprudence and thus ultimately increased the stature of the Court.
The practice of the Court confirms this account. The judges in Luxembourg have routinely availed themselves of the autonomy of decision they possesses.22 As a general matter, the E.C.J. has not decided cases in ways that matched member state preferences or those of any politically powerful subgroup of member states. Of course, one can always assert that member states indicate their agreement with the Court’s decisions by not amending the treaty. But as far as the deliberate presentation of member state preferences to the European Court of Justice are concerned, Eric Stein and, more recently and more systematically, others have confirmed that member state preferences are not generally good predictors of the Court’s decisions.23 The Court is much more likely to follow the Advocate General or the Commission (neither of whom behave as an agent of the member states).
But institutionalists and neofunctionalists who merely stress the Court’s autonomy from member state governments tend to miss something, as well. All too frequently, we encounter here, too, a jaundiced view of individual actors’ motivations. Some scholars, for example, suggest that judges are simply clever opportunists who appeal to purported legal norms solely as a means to promote “their independence, influence, and authority.”24 Others suggest that law is merely a “mask” for “the promotion of one particular set of political objectives against contending objectives in the purely political sphere.”25 And yet others go so far as to accuse the European Court of Justice of a cynical use of legal doctrine merely as a tool to expand its own influence in utter disregard of the values the Court purports to be advancing by such doctrines.26 In general, all this seems to imply that granting supranational actors any “strategic zone of discretion” must be a mistake. Decisional autonomy, on this view, is simply an invitation to another set of actors to engage in self-promotion. In the case of the European Court of Justice, the suggestion seems to be that the Court’s law talk simply has the rest of us fooled. And any beneficial effect of the Court’s judicial “activism” is merely a fortuitous by-product of institutional self-promotion.
Schiller’s understanding of gracefulness and dignity, however, suggests that we should recognize the decisional autonomy of judges (and of other individual actors) as creating an important normative space for ethical behavior. Put simply, the judges of the European Court of Justice can seize their interpretive freedom in good, bad, or normatively neutral ways. They may opportunistically expand their power, randomly create friction in the aggregation of member state preferences, or narrowly appeal to technocratic logics. But they may also bring to bear their personal and professional commitments to such things like democracy, equality, and transparency. Moreover, as Schiller’s distinction further suggests, the judges may do any of this prominently and after great deliberation in landmark cases that seem to challenge the more political branches by prominent appeals to principle, as well as subtly, instinctively, and with apparent ease in the course of everyday adjudication.
This does not suggest that we are at the mercy of a bevy of Platonic judges. But the nature of judging enables the judiciary to become an important interlocutor in a dialogue with the constituted political branches and the public over the meaning of a foundational text--and even secondary legislation. Once judges have rendered their decision, it takes significant political will to undo their handiwork. Moreover, by deciding a case one way or another and setting the backdrop for political action, judges may significantly alter the tenor or scope of the political debate about the primary policy issue. Indeed, as has happened so often in the European Union, the first move of the courts may be ultimately confirmed (rather than undone) by subsequent political action that had previously seemed impossible.
Judging the Court often depends on understanding its freedom in this way. Freedom in legal interpretation and the ethical choices that interpretation demands of individual judges allows us to judge the Court’s work product beyond calling the judgments either legal or lawless. Thus, even when we are satisfied that a decision has remained within the bounds of the law, we may condemn or praise the Court. For example, we may condemn the Court for the apparently self-interested interpretation that the Community lacked the power to accede to the European Convention of Human Rights, even if we are willing to posit that the decision itself was not lawless.27 Conversely, we may praise the Court for acting “not only . . . legally, but also wisely and courageously” as it did in creating a general jurisprudence of fundamental rights at the Community level.28 These kinds of judgments ultimately express approval or disapproval (and thereby acknowledge the existence) of the ethical choices that judges make under certain conditions of freedom in interpreting the law.
B. Democracy and the Self-Conception of European ActorsB. Democracy and the Self-Conception of European ActorsB. Democracy and the Self-Conception of European ActorsB. Democracy and the Self-Conception of European Actors European integration cannot be divorced from the ethical self-conception of the individuals who make up the project. This is neither an assertion of methodological individualism nor a denial of institutional politics. Instead, it suggests that the current state of European integration is at least in part a product of the way in which various actors have used the freedom inherent in the supranational institutional environment they inhabit. The European Court of Justice, in particular, has exercised its decisional autonomy to recalibrate the treaties away from the member states with a focus on the individual. The Court no longer understands the individual as exclusively confined to national processes for the vindication of her rights and interests, but also, in certain respects, as an unmediated subject of the European enterprise.
Judges are not the only actors pursuing this shift in normative focus. Parliamentarians and others, too, have embraced this idea in numerous ways. In any event, whether practiced by the Court or elsewhere, the democratic recalibration is neither the simple result of member state preferences nor a pure by-product of supranational institutional self-aggrandizement. Although preferences and power have played a part, to a significant degree the recalibration of European integration is the product of individuals exercising their discretion in a way that is informed by democratic principle.
1. Democratic Principle and the Court1. Democratic Principle and the Court1. Democratic Principle and the Court1. Democratic Principle and the Court1. Democratic Principle and the Court. -- The democratic recalibration undertaken by the European Court of Justice has at least five dimensions. The first lies in the classic establishment of supremacy and direct effect.29 Here, the Court expressly rejected the member state governments’ interpretation of the treaties as tools of exclusively intergovernmental relations. Instead, the Court held, that the treaties were created for the benefit of individuals, as well as governments, and that this entailed rights and duties for both.30 As Judge Pierre Pescatore suggested long ago, these decisions were “the consequence of a democratic ideal” that liberated the individual from the confines of her national government.31 “[I]n the Community, as well as in a modern constitutional State, Governments may not say any more as they are used to doing in international law: ‘L’Etat, c’est moi.’”32 As Pescatore famously concluded, the judges of the European Court of Justice had “‘une certaine idée de l’Europe’ of their own,” based not on “legal technicalities” but on the individual as the normative subject of European integration.33 These cases are thus at once a brilliant move to render Community law more effective, and a systematic democratizing shift in interpretative focus that gives individuals an immediate stake in the process of integration. No longer are individuals, and the communities of interest of which they are a part, confined to national political and judicial processes to vindicate their interests.
The second dimension of this shift in focus is the Court’s support for the Parliament as an independent actor in the institutional structure of the Union. Here, the Court notably granted the European Parliament standing to assert rights of participation in the European political process, despite the fact that the Treaty conspicuously omitted extending such rights to that institution.34 The Court expressly relieved the Parliament of any dependence on the member states for protection in this regard. As the Court noted, “the bringing of an action by Member States . . . for the annulment of the act are mere contingencies, and the Parliament cannot be sure that they will materialize.”35 Accordingly, the Court saw the need for a “legal remedy which is suited to the purpose which the parliament seeks to achieve.”36 In a related vein, the Court extended substantive judicial review to the Parliament’s own actions, thereby furthering the understanding of the Parliament as an authoritative independent actor within the Union.37
The third dimension is the Court’s development of a jurisprudence of human rights. To be sure, the development of fundamental rights emerged from an institutional standoff between member state highest courts (notably Germany’s) and the European Court of Justice.38 And yet, the manner in which this standoff was resolved, suggests that democratic principle, not institutional self-interest, decisively informed the decisions of both supranational and member state judges. For example, although the German federal Constitutional Court might have insisted on reviewing all fundamental rights complaints lodged against the European Community policies and its German implementing authorities, the German court ultimately took a back seat role.39 It specifically acknowledged the status of the European Court of Justice as the constitutionally lawful judge in such disputes, while reserving to itself only the right to step in if the ECJ should fail in a wholesale manner to protect rights properly.40
The European Court of Justice, in turn, sought to protect fundamental rights within the scope of Community law by reference to a universalized conception of individual rights. As a matter of jurisdiction, the Court would ensure compliance with fundamental rights of Community measures as well as of member state actions whenever member states were acting within the scope of Community law.41 As for the substance, the Court might have resolved the tension between Community law and fundamental rights by looking to the protection afforded by the member state in whose jurisdiction the alleged injury occurred. To be sure, it would not have served the effectiveness of Community law to subject Community action to every national fundamental rights limitation. But the the Court might well have developed a jurisprudence that limited fundamental rights protection to at most what the national jurisdiction would have provided in analogous cases. Instead, the Court expressly developed a universalized understanding of fundamental rights that lifted the individual out of the particular member state she was in, considering her instead to be part of a European-wide community of values.42
The fourth dimension of the democratic recalibration pertains to citizenship. Here, too, the Court seems to have gone beyond what member state governments envisioned when bargaining about the treaties. During the intergovernmental conference on the Maastricht treaty, member states became concerned with the awakening of a potentially critical European public to the advanced state of European integration.43 The worry at the time was that something was needed to address the individual members of this incipient polity or else the citizens would feel left out and object to the treaty. The largely cosmetic result was a set of new citizenship provisions that provided a few specific rights, and two more general citizenship provisions, Article 17 and 18 (then 8 and 8a) EC, which did not by its literal terms appear to grant any new rights at all.44 Instead, the political branches were empowered to create new rights.45 Broader proposals, originally submitted as part of the intergovernmental conference, were specifically rejected in the negotiations among the member states.46
Despite these narrow intentions of the member state governments, the Court’s first case interpreting Article 18 nonetheless held that the general provisions extended new rights to citizens. In particular Union citizens residing legally in another member state were protected against certain forms of discrimination on the basis of nationality, regardless of whether these citizens qualified as a protected economic agent under any other provision of the treaty.47 This ruling went well beyond the governing acquis, according to which an individual had to be an economic actor before gaining rights to equality.48
Putting to one side the potentially enormous consequences of these judgments, the citizenship decisions confirm that the Court views itself as a forum of democratic principle, not as the administrator of the member state governments’ preferred public relations campaign. In the Court’s view, prominently conferring “Union citizenship” on every member state citizen, had to be more than an empty label or hollow promise of future action. It had to be of some consequence, and to the Court that meant freedom from second class status in a member state that was not the European citizen’s own. The Court refrained from holding that this provision of its own force provided a right of free movement to all Union citizens. But it nonetheless held that as long as a member state considered a citizen of another member state to be a legal resident, that “Union citizen” could not be subject to arbitrary discrimination based on nationality.
The final dimension of democratic recalibration lies in developing the social aspects of economic freedoms. Here, the Court has repeatedly challenged the conception of national systems as impermeable communities of social protection and pushed member states toward what one scholar calls the “existence of possible pan-European solidarity publics.”49 Early decisions interpreting Regulation 1408/71, for example, considered a means-tested retirement supplement to be an element of “social security,” as opposed to mere “social assistance”, and thus subject to the regulation’s nondiscrimination requirement.50 Other cases made such benefits portable, with the result that “French taxpayers were de facto subsidizing some needy Italian elders residing in Mezzogiorno.”51 The Court also interpreted Regulation 1408/71 broadly to allow individuals access to foreign health care providers whenever the treatment sought is “necessary and effective.”52 In this case, the member states responded by amending the regulation to restore discretion to national governments in granting approval for the receipt of out-of-state medical care.53 But the Court recently struck back, this time on somewhat different legal grounds, once again granting individuals access to medical care outside their own health care systems.54
In these rulings the Court demonstrates considerable skepticism regarding member states’ claims to the financial integrity of their social and medical insurance systems. The decisions stress, instead, the need to consider the nature of the patient’s condition, the individual’s desire for speedy treatment, and the individual’s autonomy in choosing from appropriate available treatment options.55 Similarly, the Court has recently expanded individuals’ access to support allowances while seeking jobs in another member state.56 Thus, even within the economic sphere, the Court frequently focuses on the social aspect of rights, and seems determined to free the individual from the ready control of her own member state.
In summary, the Court’s decisions on supremacy and direct effect, the rights of the Parliament, the fundamental rights of individuals, citizenship, and the social dimension of economic rights can all be seen as part of a comprehensive move to interpret the treaty with a focus on the individual as the immediate subject of European integration. In momentous decisions as well as the everyday interpretation of the treaty, these decisions lift the individual from the exclusive confines of member state processes of political decision making. As the following part will show, this approach to the treaties and to the project of European integration is not unique to the European Court of Justice.
2. Democratic Principle beyond the Court2. Democratic Principle beyond the Court2. Democratic Principle beyond the Court2. Democratic Principle beyond the Court2. Democratic Principle beyond the Court. -- The Court does not have a monopoly on vindicating commitments to principle. In other institutions, too, the ethical self-understanding of participants who carry out their specific tasks within the project of integration matters. Whether the Union remains a strictly intergovernmental project or grows into something more ultimately depends on whether the denizens of Europe’s institutions perceive themselves as acting solely on behalf of their respective member states or whether they view themselves as part of a larger enterprise that, in some way, transcends national boundaries. And here, too, there is considerable evidence that the latter spirit prevails.
Just think of Giscard d’Estaing. Whatever criticism one may have regarding his heavy hand in the Convention or his ambitious sense of self, he did not carry out the bidding of the member state governments without making their project his own. For example, without specifically flouting the member states’ instructions in the Laeken declaration, Giscard veered from member state expectations by insisting on (and ultimately delivering) a single document instead of a pallet of options.57 Although the member state governments were free to reject his work product, it is nonetheless difficult to imagine that Giscard’s move, as well as his rhetoric, will have had no consequences on the path of European integration. Similarly, the general criticism of his heavy hand in the Convention is only further acknowledgment of the ethical choices (or lapses) in this individual’s exercise of discretion. Along these lines, Giscard’s interpretation of “consensus” appears to have involved a considerable measure of discretion, as did his failure to consult his colleagues in any meaningful way on the drafting of the preamble.
The importance of the ethical self-conception of individual actors is not limited to the most mighty participants in this enterprise. For example, even at the ordinary Convention-member level, self-conceptions of the proper role of “conventioneers” influenced much arguing and bargaining during the proceedings. As Jon Elster has written, members of constitutional conventions tend to view themselves as operating in a realm of principle with significant autonomy from the powers that originally convened the gathering.58 And indeed, Kalypso Nicolaidis and Paul Magnette observed the effects of a commitment to principled discussions, or at least of what Elster has called the “civilising effects of hypocrisy.”59 In particular, they noted the significant commitment of convention members to the goal of “simplification,” which led to certain gains for the European Parliament beyond what the member state governments would likely have preferred. Here, the goal of simplification (laid out in the Laeken declaration) resonated with a strong sense among the convention members that it was their job to make the basic structure of the Union more transparent to citizens.