The Changing Precondititons of Law and Politics - ARENA Centre for European Studies

ARENA Working Papers
WP 97/29

The Changing Preconditions of Law and Politics
Multilevel Governance and Mutually Interdependent, Reflexive and Competing Institutions in the EU and the EEA

Inger Johanne Sand
Department of Law and ARENA, University of Oslo

Abstract

The communicative systems of law and politics which have been vital parts of the structures and processes of democracy, have evolved in their present forms over the last two hundred years. They have been inherently connected to the boundaries and the definitions of the nation states and of sovereignty. Current changes of substantial as well as of legal and procedural character are however - over time - dramatically changing the premises of the nationally bounded communicative systems of law and politics. In the paper I will discuss these two main ways in which the previously nationally based and defined legislative processes of communication have been challenged and changed, namely: - first the doubling of institutions following supranationality and the increased competition and reflexivity among the institutions, and second the increased globalization and uncertainty of many of the legal discourses in the supranational institutions. I will argue that we in the combinations of the national and the supranational institutions of Europe see new forms of multi-level governance which are characterized by having institutions with the same communicative functions competing with and interpreting each other. This creates new and multiple paths of legislative processes and new forms of mutual interdependencies and changed relations between law and politics. I will further argue that this creates more open, unstable and reflexive institutions of governance. The study of law and politics must then focus more on the substantial forms of argumentation, the discourses evolving in the fields regulated by law and politics and consequently on how meaning is produced.

Theme [1]

Law and politics have been the primary risk-carrying and legitimating communicative systems and processes of the democratic and capitalistic societies for the last two centuries. Communicatively they have been conditioned by the boundedness of the nation states - historically, socially, economicly, linguisticly, culturally etc. The communication has been able to rely on these other pre-existing and parallell systems of socially and linguistically based meaning formation which have had parallell boundaries. The boundedness and the parallel systems of meaning formation may then be said to have enabled efficient and more coherent systems of communication. These conditions for law and politics are however significantly changed by the increasingly internationalized structures of both substantial meaning formation and decisionmaking procedures.

All along these national systems of legal and political communication have of course been penetrated by different forms of international coordination, internationally communicated themes and by the existence of international legal treaties. International conditions of trade etc. have of course also influenced national legislation. Still, however, the great bulk of legislative processes have communicatively taken place within national boundaries, or within regions, - including factual as well as normative premises, and respecting the dual structure of national sovereignty and democracy. Legislative processes - including their legal, bureaucratic, expert and political aspects - are crucial communicative processes on the meta- and to some extent on the meso- and microlevels of society. They are also crucial meeting places and crossroads for the corresponding and functionally different institutional actors - political authorities, experts as well as private organisations and corporations. The legislative processes do not only have decisionmaking functions. The discursive, information-gathering and argumentative functions preceding the decisions are as important. The ways in which these processes work are hugely influential for how the relations between these actors are played out in society. Their social foundation is also very much based on the democratic legitimacy of the framework of the processes. Democratic elections, parliamentary sovereignty and accountability are the vital elements in guaranteeing a democratic framework.

Current changes of substantial as well as of legal and procedural character are however - over time - dramatically changing the premises of the nationally bounded communicative systems of law and politics. Increasingly more legal discourses are international or global in their themes and in their operational communication. This would be true for many areas of market, environmental and technical regulation and for the whole area of human rights. In these areas the thematic definitions and the substance of the discourses would have as their frame of references international or globally based discourses rather than national. International legal treaties have abounded, and they now increasingly include elements of supranationality or variations of legal sanctions which in different forms enforce or enable internationally based procedural legal systems. In most instances this would not mean moving competences, but multiplying them. National and international legal and political systems will exist side by side and in different ways be intertwined and interdependent. The definitions of the competences of the inter- or supranational organisations will often have unclear or uncertain elements concerning both the procedural as well as the substantial aspects. The very existence of parallell and competing national and international institutions will also influence the interaction, the divisions and the interdependence of the legal and the political systems of communication. They will be interpreting each other and thus creating an increasingly reflexive communicative environment. This implies a situation of several institutions competing on several levels or axis of meaning formation: - national vs. inter/supranational, - political vs. legal or administrative (functions), - politico-legal vs. expertoriented etc. It also implies more uncertainty and unpredictability as to the boundaries of the institutions. These institutional changes will also, presumably, lead to changes in the relations between the actors - as they have been established within the nation states.

The factors mentioned here are not entirely new, but they have increased significantly in intensity and in scope. They have thus produced fundamental changes in the status of national sovereignty as a vitally structuring element, and then also in the roles of nation states and national boundaries as primary procedural and substantial definitions and closures of the communicative systems of law and politics.

In the following I will discuss these two main ways in which the previously nationally based and defined legislative processes of communication have been challenged and changed, namely: - first the doubling of institutions following supranationality and the increased competition and reflexivity among the institutions, and second the increased globalization and uncertainty of many of the legal discourses in the supranational institutions. Conclusively I will discuss some of the consequences of these changes for the substance, procedures and legitimacy of the legislative processes.

When discussing governance and institutions in this article I will use the term communicative functions or systems as it is used in systems theory as a basic term. ^[3] In systems theory society- and governance - is understood as consisting of communications, and of systematically different systems or functions of communication. Each system or function has its own code (binary) and rationality. Each system is also autopoietic and communicates directly and normatively only with itself, only indirectly and conitively with others. Within the area of governance the most relevant functions of communication would be politics (power), law (right), economics (money) and science (truth). I would also add administration.

From the unity of sovereign nation states to structures of multi-level governance

From historical to sudden and unpredictable processes

The basic normative patterns of the democratic and governance institutions of the nation states have evolved gradually over the last two hundred years. Some of the changes of these patterns have however also come about in quite sudden ways - as historical acts, for example the introduction of parliamentarism in some countries. The EC/EU have evolved over the last forty years and have in this time created immense institutions with wide powers and with courts and sanctions unlike any other international organisation in this region. They have also thus dramatically changed the governing conditions of the nation states and their sovereignty. The treaties and institutions of the EC/EU have however evolved not on a linear and clearly politically willed and consensual basis, but rather in an unevenly and sometimes surprising fashion. ^[4] The evolution of the EC/EU institutions may be described as a case of extremely vital and path-breaking political institutions, with significant consequences for the existing forms of governance, having evolved in unpredictable and often sudden manners. Vital and decisive elements of the new institutions have also come about without much previous, or past, public debate and not as any step-by-step consensual process. Examples would be the declarations of supremacy and direct effect by the Court, and the decions on majority voting. The same would be true for several of the reforms of the Maastricht treaty.

The «project» of constructing a more institutionally stable European association has had some vague goals of keeping peace in Europe and of constructing some kind of inner and common market. There have however not from the start been any specific and clear ideas as to how to embody and realize these goals and thus no pre-view of the supranational and comprehensive structure which the ideas have come to embody. There have been political, legal and administrative battles and at times sudden decisions as to the main directions of the institutions and not only a gradual and consensual debate leading to the new reforms. One reason behind these uneven and unpredictable processes might be the fact that the possible institutional reforms were of such a large scale and with such vital consequences. Some of the institutional changes such as declaring supremacy and direct effect and the introduction of majority voting make a great difference - as separate decisions. They would thus be complex hard to handle in open, public and transparent decisionmaking processes. The process of the EMU would be illustrative of this. After Maastricht there have been public debates, but at the same time they hardly seem to have had any significance for the elite politicians in the core of the EU. The decision was taken, and by its nature it then seemed impossible to stop.

Another vital factor of the political and institutional changes of the EC/EU may be the lack of a common frame of references as to historical, social and political facts and values for the various actors, see further on this below.

The primary institutional actors in the constitutional process of the EC/EU have on the one hand been the member states and on the other hand the EC/EU institutions in so far as they have had autonomous capacities. This amount to a very differentiated group of actors - functionally as well as legitimately and with very different scopes of action. The member states are the formal decisionmakers, but the commission has a huge influence on the preparation of any decisions and also on their implentation. The Court is a very independent player and has used its capacities much more than is the common pattern for courts in Europe. This has made for an uneven polity field with all of these actors at times playing unexpected roles.

The combination of (1) a potential of large scale and very consequential decisions, (2) a lack of a common or consensual picture of reality and of values and (3) an uneven, untraditional and unstabilized polity may be significantly contributing factors to the uneven constitutional processes.

A fourth factor may be the significant role the different communicative functions or systems within the prosesses of governance have played. Modern societies are highly socially differentiated and so also their forms of governance. The social differentiation is expressed on the communicative level - by different systems of communication. ^[5] Within the area of governance there are several functionally different systems of communication at play - some times within the same, at other times within separate institutions : - political, legal, economic, administrative and scientific. ^[6] These are systematically different systems of communication with different rationalities and codes. Niklas Luhmann’s theory is that these systems are autopoietic and communicate on a direct basis only within themselves and externally only indirectly. Within the processes and institutions of governance these systems will run parallel and separately, but they are also mutually interdependent and supplementary of each other. In the present forms of governance they cannot exist without each other. When used they do however keep their separate rationalities and codes. The combinations of legal, political and economic systems of communication are necessary, in our present societies, and may be extremely productive, but they do not constitute smooth and coherent processes of communication. They will continue to misunderstand each other and porduce gaps in communication. The different systems do not link directly up to each other.

This could be illustrated by the EC/EU processes: Economists have expressed worries over the relative lack of economic growth in Europe and suggested more intensive forms of trade harmonization. Partly on that basis the political processes have pronounced quite general goals and issued directives on creating a common and inner market with free competition and with total restrictions on the uses of state subsidies. The politicians did however form the start not state exact procedural or constitutional norms on the legal status of the treaty and the regulations and directives issued from it. In implementing these directives on a legal basis the ECJ and the Commission had to make use of the rationality of the legal system. Interpreted within the legal system the goals of the treaty were taken seriously, and there was a demand to some kind of coherence between the goals in the preamble and the regulations and directives. On the basis of a legal rationality the principles of supremacy and direct effect of the EC regulations vis-a-vis the national implementations were declared. This created the first explicit elements of the supranational character of the legal and political system. This was an interpretation inherent in the legislative and political texts, but not the only possible one. Partly on the basis of the rationality of the legal system (meaning: what was necessary to make it work) the lawyers went ahead of the politicians in declaring the supranational character of the EC. ^[7] The Court could have chosen otherwise, but their choice was also fully within the range of legally possible interpretations. The administrative strata of the Commission have also displayed many elements of a relative independency in their preparatory, policy-making and implementing work. The Commission has for example been eager in the uses of art.235 in extending the competences of the treaty, at times stretching the article beyond its intensions. ^[8] Here we may see administrative efficiency at work. The EMU is also an example of a reform which politicians and economists have described and motivated in quite different ways. The different functions of communication have thus communicated about the same themes, but not in a coherent way. The results have been leaps or gaps in the institutional patterns evolved due to the different rationalities or codes and a lack of coherent communication at least in terms of meaning.

Combined and multi-level governance

On a first account the establishment of the EC/EU institutions have meant a doubling or a multiplying of the institutions and the processes involved in the legislative work. The interaction between the national and the supranational institutions are manyfaceted and work on many dimensions. One way of describing this would be to say that there are at least two parallell processes which supplement each other both legally and functionally. In this version one would emphasize the legal separateness, the national sovereignty and the relative autonomy of the two. The national level includes the original consent to the treaty and the member states’ continuous participations in the collective decisionmaking as well as their own decisions concerning implementation and the national courts’ judgements. The supranational legal level defines its own legislative procedures and has supremacy on its enumerated powers vis-a-vis the national levels.

Another way of describing this would be to emphasize the interaction and interdependency between these levels and to describe them as having produced a new and combined type of institutional level, embodied primarily in the Council as the primary legislative body of the EC. In both the European Council and the Council the member states participate as both representatives of the sovereign member states and as participants in a European association with its own legal identity and supremacy. It is this combination where the members vacillate between national and European interests, but where the European level has supremacy in a wide range of cases, which characterizes the EC. The member states have thus a double identity and are responsible partners of two sovereign entities at the same time. Sovereign is here used in the meaning of supreme legal and political competence over a specified area. The term is used here due to the combination of supranationality and the relatively comprehensive enumerated powers. This is not a description of an intergovernmental organization and neither a new European sovereignty totally undermining the nation states. It is a combined form of governance embodied in the legislative and the constitutional Councils where the representatives simultaneously are parts of two types of sovereignties. This will mean simultaneously taking care of two identities and two sets of considerations on a rather high level. It is this type of combination of two relatively intensive and comprehensive forms of governance across national borders which is relatively new. ^[9]

The first description mentioned here has relevance in defining a starting point for the institutional evolution of the EC/EU. The second version does however seem to be the most appropriate - at the time being - for describing this very particular legal and political entanglement of sovereign nation states with long historical traditions and strong normative patterns of social practices with the evolved supranational and common level of governance. The combination of these two elements with the creation of competences covering quite comprehensive and continuously growing areas seem to designate the very particular institutional and constitutional arrangement of the EC/EU. In the discussions of what kind of organisation the EC/EU are, this focus on the combination of «sovereign» competences and political responsibilities within each member of the Council and thus in the Council as such seems to be one of the most important elements. Within the European context of sovereign nation states and their various international affiliations this is a new type of political and legal institution, and it should be treated as such.

A third way of describing the EC/EU - which would supplement and not be alternative to the previous one - would be to emphasize the coexistence and the interaction between all the different institutions on the national as well as on the supranational levels and between the functionally different institutions: - political, legal, administrative, economic, expertise. This approach would emphasize each institution as different and separate, and that there are many forms of interactions between them - depending on the issue or theme in question and how they have previously been defined legally, politically or scientificly. It would not emphasize a dichotomy between either national or supranational processes or other fixed relations. It would rather emphasize the existence of many parallell, interacting and intertwined trajectories within the broadly defined processes of legislative work. Trajectories here meaning relations between institutions. Examples of this would be: - the ECJ inducing political and administrative processes on several levels, - the Commission influencing both the Council and the national political authorities, - the Council issuing regulations and directives having direct effect on the national institutions, - and particularly: - the elaborate negotiations within the conglomerate of committees under the Commission and the Council, i.e. between the different scientific, administrative and political committees with a mixture national and supranational representatives. ^[10]

The interaction between the different institutions is qualitatively characterized by the different communicative functions represented within them and marking each of them: - the political, the legal, the economic, the administrative and the scientific. For understanding the heterogeneity, the structural couplings, the communication and the lack of communication between the institutions involved some kind of analysis and understanding of these systematically different communicative functions would be significant. ^[11]

Together these elements of (1) combinations and variations of legal competences on the European institutional and member states’ levels, (2) the combination of relative autonomy and mutual interdependence of the institutions, (3) the uses of the different communicative functions at both the national and the supranational levels and (4) the multiplicity of trajectories in the decisionmaking processes between the participating institutions, constitute the label of multi-level governance on co-existence of the European institutions

Competition and mutual interpretations between institutions

The treaties of the EC/EU define the legal competencies of their institutions and thus also their relations to the member states and their constitutional and legislative processes. It would be part of the nature of such complex political and legal relations that even if they are quite accur-ately stated in a legal text, they will within a political practice and struggle betray several vague or general formulations, contradictions and omissions. There will unavoidably be different interpretations by different actors and institutions and to some extent this will be influenced by their functions and their environments. Within each nation state there is normally one, or one set of, institutions for each communicative function, and these functions will normally have evolved more or less stable and hierarchical relations between each other, e.g. law and politics. The different interpretations between the institutions will thus take place within a more or less stabilized pattern of functional divisions. Within the larger arena of the EC/EU and their member states there will be multiple sets of institutions with the same communicative functions including both the levels of the European and the different member states. The comb-ination of the national and supranational levels with parallell functions opens up for more complex entanglements of law and politics and for complex situations of different, but func-tionally equal institutions interpreting and competing with each other. There will thus be mutual and competing interpretations of legal and political texts and decisisons also between institutions performing the same functions, albeit on different levels. They will have the same type of authority only within different geographical and legal boundaries.

In many instances the legal relations between the different institutions or their specific legal competences in certain areas may be either politicly or legally contested and thus open to different interpretations. The very sensitive situation of the lack of full democratic legitimacy of the European institutions, the lack of popular support and disagreements as to the more exact situation of the constitutional relations between national and supranational levels (cfr. the Bundesverfassungsgericht) underline the seriousness of problems arising from the different interpretations by authoritative institutions in constitutional or other legal questions. With the constitutional arrangement described here this will however unavoidably be a fact of life.

This creates a situation of increased reflexivity also among institutions belonging to different constitutions or representing different areas. Competing with other institutions having the same communicative function creates an entirely different situation than competing with functionally different institutions.

The competitive situation will be enhanced by the fact that the national and the European institutions have different origins and status of legitimacy, and that the normative relationships between the national and the supranational institutional levels have not been stabilized. The different institutions are thus not only competing or interpreting each other on the basis of very specific situations. They are also on a more general level defining their own places within the systems of institutions and competing with each other.

Significant disagreements between decisionmaking institutions have been revealed concerning several of the vital definitions and scopes of material as well as procedural competences in the EC/EU treaties and in several directives. Some of the most known examples are the boundaries between the inner market regulations and environmental protections, cfr. art.100A pt.4 and between the protections of free competition and the uses of state subsidies and monopolies, cfr. arts.36, 92 etc. The boundaries of the competences mentioned here are at the very core of the regulatory area and aims of the EC They also concern some of the most vital policy areas and thus also main areas of conflict in the EC institutions. The disagreements may thus be seen as competition both between interests and discourses and between institutions. They may also be seen as parts of the main and conflictual political discourses among the institutions.

Changes in the relations between law, politics, administration and science

The multi-level structure of governance also influences the conditions of and the roles played by each specific institution and by their communicative functions. This is particularly true for the relationship between the legal and the political functions of communication. In a multi-level structure with several, but different institutions of law and politics they will be preconditions and environments for each other in several and not primarily hierachical or rule-of-law oriented relations. The political institutions of each member state will for example have to deal with and respect legal obligations agreed upon by others on quite a different scale than under previous international arrangements. Politics on all levels will also have to give more attention to the existing legal and constitutional frameworks when considering new decisions because of its much more complex structure compared to the previous nation states. At the same time the legal and administrative levels may have to be more attentive to the political implications of their decisions because the normative environments on the European level tend to be more heterogeneous and less stable than within each member state. Legal decisions may under such circumstances more easily be politicized by different actors. Legislative regulations are also often formulated by using open and wide concepts and delegating powers. This will mean delegations to administrative, scientific, corporate or political levels and not only to juridical authorities. These repercussions among political, legal and scientific levels will result in mutual influnces and mer fuzzy boundaries.

The different communicative functions of governance are increasingly overlapping and0 have more uncertain and fuzzy boundaries vis-a-vis each other. They are not only conditions for each other, but also more interdependent and mutually influential. This is not only induced by the structures of multi-level governance, but also by increased complexity of governance which will mean that the different forms of communication will have to interact more closely. The competition between the different levels of government and the mutual influence thus created will also, as exemplified above, change the roles of these forms of communication. The more heterogeneous and non-consensual frames of references on the European level compared with the nation states may also contribute to instability and changes between the different communicative functions. Political, legal and scientific arguments may more easily influence each other when the normative as well as the factual conditions are relatively unstable, non-consensual and heterogeneous, compared with previous periods of the nation states.

From unified sovereignty to multiple paths of governance

The idea of the sovereignty of the nation states has implied an idea of unity internally (the hierachy of the authorities) and externally (marked by the boundaries between the nation states). When acting on the international arena each state has been represented by a unity. When confronted with the forms of governance having evolved in the EC/EU and in their relations with the member states’ institutions unity is hardly a fitting description concerning the actions of the member states. Participation in the EC/EU institutions is done by multiple numbers of agents and agencies both form the member states and from the EC/EU, and they follow multiple procedures and trajectories, formal and more informal.

Members of the commission and the ECJ are not the member states’ representatives. When appointed they are legally primarily part of the EU institution. The MEPs are both parts of the Parliament and representatives of their states. The members of the Council also have this dual position. They are member state representatives, but they are also part of and responsible for the supranational organisation. Below these levels multiple representatives participate on committees under the Commission as well as under the Council. They have varying status, from independent to administrative or political representatives of the member states and the EC/EU institutions. The preparations of EC legislation take many forms - using scientific, administrative and political committees or representatives in different trajectories - depending on the theme of regulation, the interests involved and the political situation.

Within such forms of governance it would be a fiction to keep up the idea of a unity of sovereignty for each participating nation state and for the EC/EU. Governance is rather performed via several institutions and with the use of several and varying trajectories of relations between these institutions. They work both autonomously and intertwined. Even if some of the institutions (the national parliaments and the Council) have some kind of supreme decisionmaking power, they are dependent on other institutions for initiatives and substantial preparations. They are totally unable of controlling the preparatory or implementory institutions. The latter do have considerable autonomy when performing their functions and will thus have considerable influence on the decisionmaking. They are also often delegated substantial powers of law-making. The preparatory, decisionmaking and implementing institutions supplement and rely upon each other, but they also have relative autonomy and are unable to control each other.

Functional and mutual interdependence combined with relative autonomy(in a functional sense) are probably better terms than hierarchical structures. Multiple paths of procedures and of combinations of institutions are also more fitting descriptions than unitary sovereignty. The classical idea of sovereignty may then be seen to dissolve into these multiple patterns of cooperation and combinations of institutions and the admittance of significant degrees of relative autonomy for each institution.

This is a description of governance which may also be true of the national systems of governance. A crucial difference as to the outcome or the consequences would be that the nationally bounded institutions have a more homogeneous environment of social and cultural practices and values within which to handle these changes. This will also contribute to a common background and common cultural understandings within which the relatively autonomous institutions would interact. The relative variance between the different institutions would thus presumably be less significant than between the corresponding institutions on the European level.

The situation of double or mulitiple sets of the institutions of governance does create a situation of continued negotiations and competitions between the institutions. This is enhanced by the fact that the relations between the institutions and their procedures are not normatively stabilized. This contributes to creating an increased instability in the environment of complex decisionmaking.

Global discourses of politics and legislation

Present changes of governance are not only influenced by changes of institutions,but also of changes in the themes and objects of regulation. Regulations concerning international and regional trade, standardisations concerning the qualities of goods, environmental issues, including working environment, technology and communications, etc. are all both very vital regulatory areas today and at the same time increasingly influenced by specialized knowledge- and technologybased discourses. These are again predominantly developped within international or regional scientific communities or environments. Knowledge and technology are of course influenced by their specific environments, but they are also trans-border and trans-institutional forms of communication. ^[12] They are, in their general forms, not owned by specific institutions, and vital parts of the further evolution of knowledge and technology does take place in cross-institutional processes which have some elements of professional autonomy in them. The legislative processes within both national and European institutions are thus in most of these areas to a large extent dependent on or heavily influenced by knowledge- and technologybased discourses which have evolved through international or regional processes and communities.

Within the environmental area international scientific communities contribute significantly to creating the knowledge necessary for the regulation and thus also for the scientific discourses within which these fields are defined. Both within the EC and the member states there are administrations and administrative committees with a mixed scientific - administrative - legal representation which are respeonsible for the further elaboration, evaluation and selection of the scientific findings for the political and legislative decisionmaking. Both international scientific communities and such administrative committees are vital parts of the legislative processes because they deliver information and preconditions necessary for the politicians to try to understand the problems. The politicians are never bounded by such advice, but the scientificly and internationally based information will be the premises for their debates.

The previously nationally bounded political and legal decisionmaking processes are thus today parts of international or regional processes, and they are permeated by knowledgebased discourses which also are the results of international scientific communities.

Particularly the environmental area, but also the areas of technology and information and of labour market and working conditions are becoming increasingly complex both in themselves and in the weighing or balancing between the interests, considerations and values of the different areas. ^[13] The political processes and institutions will thus also in this regard be increasingly dependent on scientific and other experts in trying to work out an understanding of the relevant problems. The complexities of the areas will however often mean there will be disagreements and uncertainties among the experts. The passing on of specialized and complicated knowledge to non-experts might also be quite difficult. Partial knowledge, misunderstandings etc. are almost sure to be part of the outcome of such communications. Even if parts of the experts’ knowledge may be quite certain, they would probably also have significant uncertainties as to the longterm consequences. Risk-society is an inherent part of the managing of vital knowledgebased structures which we have come to be dependent on. ^[14]

Scientific knowledge can also only furnish us with the factual informations or with different alternatives. The uses of knowledge are also dependent on how we value or judge the interests or considerations involved under the different scenarios, and how we from a normative point of view look upon the relations between the social interests involved. Such judgements will of course to some extent be integrated into the experts’ informations. Technical expertise is not purely technical. There will also be social or normative preconditions weaved into any scientific report. They are only more or less hidden, and more or less significant. The more explicit normative evaluations and the weighing of different social interests outside the borders of the scientific arenas must however be done on other and more general social arenas than the explicitly expert. Even the implementation of relatively simple and instrumental scores of knowledge may be difficult to handle in their adaptations to social environments and their participation in social conflicts. When the elements of knowledge contain significant uncertainties or disagreements and also adress explicit normative and valueoriented problems, the processes of implementation and adaptation will be increasingly complex and have inherent elements of social risk. The combinations of on the one hand the discursive and specialized knowledge delivered by experts and on the other hand the normative or social considerations of a more general character must somehow be done by generalists, administrators or politicians. On all levels of such decisionmaking processes there will be vital elements of uncertainty and risks involved.

The frame of reference of political and legal decisions

Within each European nation state there have over time been established a more or less common frame of reference as to how history and current events are described and valued. At least there would be some kind of consensus as to the scale of values or interests involved and some common patterns of combining them. This has been shaped by common languages, history and social and political practices, including forms of public spaces. Social conflicts and legislative and other political changes will then take place within some kind of common frames of references.

Within the arenas of the decisionmaking processes of the EC/EU there does not exist a similar and common frame of references as to the descriptions and the more normative evaluations of the environments of the institutions. The frames of references used here will be expressed in different languages, and they will be much more socially, politically and culturally heterogeneous. Neither within the whole EU area nor within the EC/EU institutions is it possible to point to common sets of values and interests and common patterns of combining these within the different policy areas in the same ways that this has been possible within each nation state. At least there would be different ways of interpreting such patterns of values or of policies. There are also not common traditions of discussing law and politics neither in substance nor in procedures - similar to those of the nation states.

This heterogeneity is further emphasized by the still shifting and uncertain common goals of the EC/EU. Even if the preamble and the introductory articles of the treaty contain several goals and principles, the relative significance of and the relations between these in the practices of the institutions are still quite unclear and open to shifting views and arguments. There are differing views as to the relative emphasis on functioning inner markets, environmental regulation, economic growth, peacekeeping etc. as constitutional or more practical goals for the EC/EU. Conflicts concerning more specific procedural questions will thus not have a common and directing set of goals are guidelines against which to be interpreted.

The enumeration of powers within the EC/EU and the very differentiated processes of legislation and decisionmaking would also mean that decisions concerning procedural questions may be quite crucial.

The different elements mentioned here of: - a lack of common frames of reference, lack of common values, lack of clear constitutional goals and lack of consensual procedural and political practices to play them out in, would tend to contribute to instability in the procedural and constitutional practices of the institutions. More positively this could be described as reflexivity and as leading to constructive forms of competition between the institutions. It would however be a reflexivity on the procedural as well as on the substantial level.

The powers of sovereignty and right and of the disciplines

Michel Foucault has given a description of modern societies and its forms of power where he distinguishes between on the one hand the power of sovereignty which is combined from the eighteenth century on with the forms right and democracy, and on the other hand the new mechanisms of power which are new procedural techniques based on humanistic knowledges, also called disciplinary power. ^[15] The power of sovereignty and right have evolved from the long historical traditions of governance connected to the sovereign and its unity. From the eighteenth century the monarchies were transformed by the concept of right into democracies. This is the governance of law and politics. The new forms of increasingly sophisticated knowledge in the modern societies did however, according to Foucault, also create new forms of social power completely different and incompatible with the powers of right. The power was exercised in the transformation of knowledges into behavioural and procedural techniques or disciplines, also called normalisation. The disciplinary forms of power come into effect on their own completely outside the scope of sovereign power or right.

The question is then if this duality in the persepctive of power may not be constructive in helping us to see or distinguish that there are different forms of power in the forms of governance described above, what their character is, and what would then be the limitations of the communicative forms of law and politics as they function today. I would suggest that Foucault’s terms of sovereignty and right and the new mechanisms of disciplines do contribute to detecting the autonomy of the new disciplines as powers and their functional separateness from the powers of sovereignty and right.

The two types of power «can» different things and are incompatible. In modern societies they must however also interact - to some extent. Foucault raises the question if we can see new forms of public right evolving somehow based on both forms of power. ^[16] He maintains that they are incompatible, but that they also work simultaneously and that the disciplines will tend to invade and colonize the area of right and thus create some kind of interaction or interdependence. Foucault argues on the hand that the disciplines will dominate and somehow destruct the legal and juridical systems. On the other hand he also keeps open the possibility of the emergence of new forms of public rights, building on, but also distinctly differing from the old forms both of right and of disciplines. I would suggest that this comes close to a description of what we are seeing today in the increasing invasion of kowledgebased discourses in most legal fields and in their dominant position particularly in the framework and delegated legislation. Many questions remain as to the analysis of and the consequences of the combinations of increasingly systematized, specialized and knowledgebased discourses and the forms of legal regulation and its ideals of justice.

Competitive and reflexive institutions: - argumentation and political and legal semantics in focus

It is argued above that the doubling or multiplying of legal and political institutions in the processes of transformation from the nation state to more European forms of governance does mean increased competition between the institutions and also increased instability and reflexivity. This will also more often imply uncertainty, disagreements and changes of vital procedural questions. Due to the several layers of institutions political and legal levels of governance become dependent upon each other and intertwined in different ways than previously. What Gunther Teubner has called the relatively «safe distinctions» of legislation and adjudication of the nation states change significantly in a multi-level system of governance. ^[17] They can no longer be relied upon as being part of totally separate institutions.

This situation must however also be related to substantial and vital changes in the policy field. Gunther Teubner has argued that the globalization of vital social, economic and technological structures have made it impossible to keep up national boundaries of politics and thus also of law. Globalization has been economicly, technologically and discursively effective and has thus contributed to breaking down vital elements of the preconditions of nationally based political and legal systems. Vital technological and environmental questions must today be dealt with on an international or regional basis. To some extent this is also true of the regulation of markets. They are increasingly organized on an international or regional basis. These elements of factual globalization contribute over time also to organizational, political and legal forms of globalization. This will again contribute to changes, competition and fuzzy boundaries between the institutions.

Some of these themes of regulation are also extremely complex and hard to deal with within the more traditional forms of law and politics. Parts of the environmental and technological regulations are totally dependent on the knowledges of very specialized expertise, and even they will often be uncertain or in disagreement as how to solve the problems. In this situation both law and politics have become polycontextural and polycentric. They are produced in different institutions under different procedures. They are intertwined rather than separate and also closely dependent on markets, science and different forms of knowledge.

With the significant changes of the routinized patterns of institutions and procedures both the legal and the political forms of communication find themselves in much more open situations. The functioning of the different forms of scientific, administrative and political committees under the Commission and the Council should be good examples of institutional change and in the fuzzy boundaries between legal, political and scientific communication. That would also be the case for the national ministries, their bureaucrats and the independent experts which they use. When the institutionalized patterns of decisionmaking are less given, more will depend on the material and specific argumentation. Both strategic and more scientifically oriented sub-stantial and material argumentations will be more in focus in the decisionmaking processes. Also the analysis of political and legal processes will have to take this into consideration and focus increasingly on the specific substance of the argumentation and how meaning is pro-duced and not only on the sequences of institutions involved. The evolution of discourses related to the policy fields, to the legisaltive work and to the general production of knowledge are crucial for the understanding of politics today and also for how institutional patterns evolve. The understanding of these legal and political dis-courses must again come from the analysis of the substances of the argumentation, and not primarily from their institutional patterns. Teubner argues that an understanding of the current forms of law must be based on what he calls «the new trias» of social differentiation, social structure and legal semantics. ^[18] Our political and legal languages have been too far removed from the social realities which they regulate. Only an openness to the existing forms of social differentiation and confronting this with political and legal semantics will reveal their relations and the character of the latter.

Summing up: Instead of looking for hierachies and new forms of sovereigns the politi-cal and legal landscape demands that we look for a multiplicity of procedural forms and paths of legislation and for mutual dependencies between the different communicative functions of governance: politics, law, economics, science. Institutions compete for competencies, but they also combine in creating new forms of institutions or new procedures of legislation. In a more unstable, open and reflexive institutional landscape and with increasingly complex policy areas the analysis and the understanding of law and politics must also turn to the specific forms of substantial argumentation in the policy areas and to the discourses which evolve. This would be necessary for the understanding of the relations between the social differentiations, structures and the legal and political semantics.

Footnotes

^[1] This has been presented as a paper to the workshop on «The Sociology of European Community Law», at the Oñati International Institute for the Sociology of Law, Sept.25.-26., 1997. This is a preliminary sketch discussing some of the elements distinguishing multi-level systems of governance. It is based on theoretical studies, studies of legal texts and documents and interviews with Norwegian public servants working woth the implementation of the EEA treaty and the inner market. Theoretically systems theory, organization theory and discourse theory (Foucault) have inspired the work, but the full implementation of these theories on this material is still very preliminary. Very incomplete references.

^[2] Jürgen Habermas, «Faktizität und Geltung», 1992; Niklas Luhmann, «Das Recht der Gesellschaft», 1993, both Suhrkamp, Frankfurt.

^[3] Niklas Luhmann, «Soziale Systeme», Suhrkamp, Frankfurt, 1984.

^[4] Joseph Weiler, «The Transformation of Europe», Yale Law Journal, 1991.

^[5] Niklas Luhmann, ibid.

^[6] Inger-Johanne Sand, «Understanding the EU/EEA as systems of functionally different processes: - economic, political, legal, administrative and cultural.», in «Europe’s Other», ed. Bergeron and Fitzpatrick, forthcoming.

^[7] Joseph Weiler, ibid.

^[8] Inger-Johanne Sand, ibid.

^[9] Markus Jachtenfuchs and Beate Kohler-Koch, «The Transformation of Governance in the European Union», 1996.

^[10] Beate Kohler-Koch, «Catching up with change: the transformation of governance in the European Union», Journal of Public Policy, nr.3, vol.3, 1996; Karl-Heinz Ladeur, «Towards A Legal Theory of Supranationality - The Viability of the - Network Concept», European Law Journal, nr.1, vol.3, 1997.

^[11] Niklas Luhmann, ibid.

^[12] Christian Joerges, «Scientific Expertise in Social Regualtion and the European Court of Justice», in «Integrating Scientific Expertise into Regulatory Decision-Making», ed. Joerges, Ladeur, Vos, Nomos, Baden-Baden, 1997.

^[13] Niklas Luhmann, «Die Soziologie des Risikos», Suhrkamp, Frankfurt, 1991; Ulrich Beck, «Risikogesellschaft», 1986.

^[14] Ibid.

^[15] Michel Foucault, «Two Lectures», in «Power and Discipline», ed. Michael Kelly, Cambridge, MIT Press, 1994.

^[16] Ibid., p.43-45.

^[17] Gunther Teubner, «The King’s Many Bodies», 1996.

^[18] Gunther Teubner, ibid. p.18.

[Date of publication in the ARENA Working Paper series: 15.11.1998]

The Changing Preconditions of Law and Politics Multilevel Governance and Mutually Interdependent, Reflexive and Competing Institutions in the EU and the EEA

Inger Johanne Sand Department of Law and ARENA, University of Oslo