So much energy was mobilized to draft a constitution for Europe because a constitution was supposed to cure the Union of the deadly malady that is sapping it, the so-called “democratic deficit.” Ameliorating that deficit was the priority of the Constitutional Convention, as indicated by the mission assigned to it by the European Council of Laeken: “More democracy, transparency and efficiency in the European Union.” Evidence that “more democracy” was the top priority of the Convention could be found in the citation to Thucydides that originally opened the Draft Treaty prepared by the Convention presided over by Valéry Giscard d’Estaing: “Our Constitution … is called a democracy because power is in the hands not of a minority but of the greatest number.” The intergovernmental conference decided to delete that citation on the grounds that it was incompatible with the principle of equality of states. Although that deletion may not, in itself, say much about the real democratic content of the project, its symbolic significance is telling.

Contrary to the expectations raised in 2000 by the speeches of the German Minister for Foreign Affairs, Joska Fisher, and the French President, Jacques Chirac, in which both leaders called for a European constitution that would create a democratic European Union, the Draft Treaty Establishing a Constitution for Europe, adopted in Brussels in June 2004, has not established a real democracy. Power is still not with the people, but with the states. The democratic legitimacy of the European Union is still not grounded on a solid foundation, and the democratic deficit remains high. Real power remains with the bureaucracy–the Commission–not with the people. Part I of this paper explores why this remains the case, despite a few cosmetic improvements to the democratic content of the project. Parts II and III explore how the project was unable to go beyond the entrenched governmental power of the European bureaucracy, and eventually reinforced it, making democracy an almost insuperable task.

The current debates in biolaw, in Cinzia’s elegant description of them, rest on a particular assumption that I would like to highlight and examine. The assumption is that there is a fundamental difference between private and public systems of ordering and that this difference is, and should be, the salient feature in organizing our thinking about the intervention of law in this social arena. This assumption is, of course, a basic part of the liberal legal tradition, but it is an assumption that has been challenged from a variety of perspectives, including Marxist, communitarian, and feminist approaches. I will focus on the feminist criticism. While I find the critique persuasive, and I hope you will as well, I do not mean to suggest that an appropriate analysis would simply ignore the differences between exercises of power, some of which promote autonomy and some of which frustrate it. The lesson we should take from the critique is not that power, whether public or private, is an undifferentiated whole, but rather that we must be more precise in defining what are the relevant moral differences between exercises of power. Our approach must be more sensitive to the presence or absence of these moral qualities regardless of the nominally public or private identity of the persons who wield that power.

In this comment, I will offer some preliminary thoughts about this project of reconceiving the significance of public and private. First, I will trace the importance of this distinction in the clear and concise description of biolaw in Cinzia’s paper. Then I will outline the feminist critique, with particular attention to its applications in bioethical/legal issues. Finally, I will suggest that the concerns about individual autonomy that underlie the traditional public-private distinction, while legitimate, are better served by directing our attention to the ways in which power facilitates or frustrates autonomy. In particular, the focus of this analysis should be on the effects of power on a more relational and less individualistic model of autonomy, rather than on the public or private nature of the person or institution who wields that power. There are important, morally significant issues in the exercise and structure of power, and they do indeed concern individual autonomy, but the focus on the public or private nature of power and the adherence to an individualistic model of autonomy obscure rather than illuminate these issues.

To understand why Americans have such a different reaction to the question posed by this conference, we must examine certain foundational legal ideas and stories; these are legal myths, if you will, in the sense of being fundamental conceptual structures that explain the world, not of being fictions or superstitions (though some may find them to be so). Before I offer my thesis in a more rigorous way, some qualifications and explanations are appropriate. Some people prefer legal work that dwells only on the concrete and close-to-the-ground: data that you can count and code provisions that you can cite. My own view is that a country’s legal system, taken in the main, grows from its foundational myths. To understand the differences between different legal systems, therefore, one must understand the differences between these myths. If we do not engage in this kind of comparative analysis, we will never come to understand the other, the path not taken, and the possibilities that may still be available. Inevitably, however, mythic analysis has a certain gauziness when compared to the parsing of codes. My discussion will necessarily be general; not all Americans adhere to the myths that I will describe, and even the adherents differ in their zeal; and in a compass as short as this essay, I will be able to offer only a few illustrative examples. Nonetheless, I feel that most Americans will recognize instantly the mythic landscape that I will map; and in the very same landscape, most Europeans may feel like strangers wandering in a strange land. And that difference speaks volumes.

To help explore these diverging perceptions, let me first elaborate the thesis on which this conference has been based by its European organizers, and then I will suggest some of the difficulties in trying to understand that thesis in an American context. Here is the thesis of the conference as I understand it. Many in Europe are unhappy with the EU because they think it insufficiently pluralist; that is, it underrepresents the interests of certain groups. So, for that matter, do the national governments of Europe. So Europe is suffering from a broad pluralistic deficit in government. As a result, some citizens have developed new mechanisms to protect and advance their interests. In the language of the conference description, these devices do not “imitate” the “traditional forms of participation.” Instead, they have looked outside the formal legal framework for “alternative or additional channels shaped according to a different rationale, namely privileging the functional rather than political representation of their interests.” Some of these devices involve finding ways to influence government decisionmaking outside the formal process–such as lobbying and the like. Other mechanisms involve attempts to bypass the legislative process altogether, such as privatization and “soft” law. The goal of these devices is to remedy the pluralistic deficit in government by finding routes outside government’s formal structure. The problem with these devices, however, is that they are unaccountable to the general public, so we must wonder whether it is time to go “Back to Government.” Perhaps there is a way to take what is best about these devices–their ability to raise voices that have been under-consulted–and then incorporate them into a structure of government that is broadly accountable to all. The conference organizers hope that the American experience might shed some light on this possibility for two reasons. First, American constitutionalism has pluralism built into its very physiognomy. Second, the U.S. Supreme Court is notably willing to give the Constitution a flexible and evolutionary interpretation, so that the justices might find a way to incorporate these new devices into the structure of governance–taking them “Back to Government.” In this view, Europe might be able to learn something from the United States about the challenge of combining pluralist governance with accountable government.

My response to this thesis is threefold. First, I accept as given the conference’s description of the situation in Europe; my goal here is not to try to explain Europe to Europeans but to reflect on European questions from an American perspective. Second, I agree that American constitutional governance has a degree of pluralism built into its physiognomy. Private power in America has rarely been broadly distributed; in that sense, the private sphere suffers from a pluralistic deficit. In response, American government has often extended its reach to correct these private power inequalities. Third, at a mythic level, the drive to go outside government in America grows largely out of a desire to deny governmental pluralism, not to remedy a pluralistic deficit in government, which has after all been more pluralist than the market or similar private ordering mechanisms. Although the road to government has offered a chance at real power-sharing, Americans have always been reluctant to move down that road, because they fear its destination. Instead, they like to imagine that there is a social realm outside of or beyond government in which we are all the same, at least in the ways that matter. In this sphere, because we share an identity of interest, we do not need to worry about pluralist power-sharing or even the messiness of politics. Few Americans want to eliminate government, but most want to escape it to the extent possible into this realm beyond government, which they imagine as more natural. In this view, if we get off the road to government, we can escape difference, so that we will not need government after all. As a result, I fear that the American experience has little to offer Europe. If we were to bring American extra-governmental devices “Back to Government,” they would not remedy the pluralistic deficit in government, because they represent a desire to escape pluralism, not celebrate it.

This article is divided into four parts. In the first section, I will show that there is a gap between the discourse on the democratic (or undemocratic) nature of comitology and the more recent European institutional discourse on the relevance of civil-society participation in European policymaking. In the second section, I will analyze how–despite the lack of attention in institutional and academic discourse on this issue–in some cases civil-society participation has been institutionalized in delegated regulation, and will argue that this may function as an additional source of legitimacy. In the third section, I will analyze whether, according to the case law of the European Court of Justice (ECJ), there is a place for judicial review ensuring such functional participation. Finally, in section four, I will describe how the current constitutional debate may change the picture of delegated regulation. I will argue that, if the proposals made by the Constitutional Treaty are implemented, there may be a further increasing role for functional participation as an additional source of legitimacy in delegated regulation, including a desirable, stronger judicial review by the Court on such participation, which could bring the EU model of delegated regulation closer to the U.S. version.

This study focuses on adjudicative procedures. I will not analyze rulemaking procedures, but a number of brief considerations about them will be included in the final part.

The three fundamental questions are:

(1) What purpose do administrative procedures serve? That is, why do must public authorities follow an administrative procedure when making a public decision?

(2) Is it a good or bad idea to regulate administrative procedure? If good, how best to regulate it?

(3) Who should regulate administrative procedures?

The article will begin by analyzing the functions of administrative procedures as legal institutions. I will distinguish the instrumental functions from the noninstrumental, paying special attention to the relationship between good administration and its procedural aspects. Secondly, I will consider whether it is a good idea to codify administrative procedures, and discuss arguments in favor of and against codification. Accepting that codification could be a good idea, I will then examine the different possible ways of codifying procedures, analyzing the first European attempt to regulate the administrative procedures that have taken shape in the European Code of Good Administrative Behaviour. Later, I will examine the subjects given responsibility for codifying administrative procedures. Thus, I will consider the role of the Constitution, the Parliament, and the executive branch, as well as case law intervention. I will conclude with some brief reflections about rulemaking.

I will adopt an international and comparative approach, analyzing European national administrative laws, EU law, and U.S. law. The goal is to show that although there are differences between those legal systems, there is a certain degree of convergence in relation to problems and solutions. This is not surprising, given our increasingly globalized world.

Part I, therefore, will provide a brief historical and contextual background to the ATCA and the litigation that has occurred under it, as well as some of the arguments advanced by those who oppose the Act. Because the decision in Sosa now frames the ongoing debates and litigation in which the ATCA is featured, Part II will summarize the holding in that case. Part III will describe the Act’s contributions to increased civic pluralism in order to suggest that the very concept of pluralism–both in terms of civic pluralism and legal pluralism–is at the core of the opposition to the ATCA. Part IV will then propose that, in the case of the ATCA, legal pluralism and civic pluralism are necessarily interconnected. Ultimately, this paper will argue that the increased civic pluralism that the Act provides relies on a willingness to incorporate ideas and methodology from legal pluralism.

To be effective, the functional representation of the individual’s interests before courts presupposes three elements. First, individuals must have sufficient access to courts. Second, the individual’s interests must be taken into account in judgments. Third, those judgments must be enforced. This article will focus on the first element, whereas it will only touch on the second and third elements.

The aim of this article is thus twofold. First, it illustrates the development of the different avenues that allow the functional representation of the individual’s interests before the EC courts. Such avenues are described and critically assessed in regard not only to their aptness to ensure effective interest representation, but also to their impact on European, as well as national, governance. Second, building on this assessment, the paper will discuss possible reforms of the EC judicial remedies with a view to improving or at least maintaining their effectiveness as tools for the functional representation of the individual’s interests.

The difficulties encountered by government in responding to what had rapidly turned into a crisis raise important legal and constitutional questions. This article begins by explaining the constitutional relationship of Parliament and the executive by mentioning the important convention of individual ministerial responsibility. Secondly, it provides a narrative of the British Rail episode that discusses the main features of nationalization, privatization, and statutory regulation. However, this narrative is narrowly focused in order to concentrate attention on the main institutional failings and successive attempts to repair the damage. It will be suggested that the deep-rooted problems encountered in regulating a fragmented, loss-making railway expose the limits of regulation, and perhaps the limits of the privatization project in the United Kingdom. The Labour government continues to declare its commitment to public/private partnerships and free market principles, but we will see here that in a number of key respects, the levers of control are reverting back to government.

Over the past few years, administrative procedures, and the role of private individuals within them, have been emphasized by Italian administrative science. There is a special reason for this: the approval of an administrative procedure law, which contains a set of minimum principles that apply to the relationship between authorities and citizens, is a basic measure of democracy. I am referring to Law n. 241 of August 7, 1990, which has tried to incorporate the results of a debate that has been going on for many years. Hence, this law is a kind of codification. This debate, which dealt with the crisis of the classic liberal model, was aimed at providing citizens with new channels for representing their interests.

Before this law was enacted, a hearing for individuals who were concerned with administrative procedure was compulsory only in certain cases established by case law, such as in disciplinary proceedings and especially in Consiglio di Stato decisions.

Now, under current Italian law, the right of access to information and the right to be heard represent the two discrete aspects of participation: the right to enter the procedure by requesting the disclosure of administrative documents and the right to submit written opinions and comments. Once a decision is made, the pertinent results of public participation are taken into account. These powers are conferred on those members of the public who are affected, or likely to be affected, by the final act or those who have an interest in the decision, provided that they can be easily traced. This is not dissimilar to Article 41 of the Charter of Fundamental Rights of the European Union.

Albeit with considerable nuance between the investigated experiences, all systems and all powers, at least in the western legal tradition, show a shift from a traditional separation of powers toward a shared, overlapping, pluralistic, and consequently more complex decisionmaking process.

The first set of articles deals with the pluralistic challenge facing legislation. It is a rather provocative issue considering that legislation is conceived to be the realm of political sovereignty whose pluralism should coincide with the pluralism of the voters. However, in various fields of law, such as those profoundly shaped by scientific achievement, by ethics, and by the role of actors structurally outside the orbit of political legitimacy, such as the so-called civil society, a number of difficulties arise. From different angles, David C. Williams (Indiana University School of Law–Bloomington), Peter Leyland (London Metropolitan University), Cinzia Piciocchi (University of Trento), Susan H. Williams (Indiana University School of Law–Bloomington), and Francesco Bilancia (University of Pescara) tackle some of the numerous facets of a very intriguing issue.
The second set is devoted to regulation and administrative law, a field that has more experience in accommodating pluralism in terms of participatory rights of individuals and groups. However, the structure, and even the very concept of administration, varies quite remarkably between the U.S., the European, and the continental traditions, as emerges from the papers by Alfred C. Aman, Jr. (Indiana University School of Law–Bloomington), Juli Ponce (University of Barcelona), Fabrizio Fracchia (Bocconi University–Milan), and Stijn Smismans (European University Institute).

The third set focuses on pluralism and decisionmaking in the courts. Here, the analysis is mostly concentrated on the issues of standing, with particular regard to the formal rules of access as well as to the problem of standing in particularly delicate and politically sensitive cases. These features emerge in contributions by Christiana Ochoa (Indiana University School of Law–Bloomington), Luisa Antoniolli (University of Trento), Luigi Malferrari (European Court of Justice), and Serena Baldin (University of Trieste).