Vol. 15 No.8 (August 2005), pp.788-792

LAW AND GOVERNANCE IN POSTNATIONAL EUROPE: COMPLIANCE BEYOND THE NATION-STATE, by Michael Zürn and Christian Joerges (eds.). Cambridge University Press, Cambridge, 2005.  312pp. Hardback.  $75.00 / £45.00.  ISBN: 0521841356.

Reviewed by Gonzalo Arruego, Public Law Department, University of Zaragoza, Zaragoza, Spain.  E-mail: garruego@unizar.es

LAW AND GOVERNANCE IN POSTNATIONAL EUROPE is the result of a long and interdisciplinary work between lawyers and political scientists whose origins can be traced back to 1997 and whose guiding question is whether “law – understood as a normatively meaningful form of social regulation – [is] conceivable or indeed possible beyond the nation-state.” Under the conviction that, to be considered legitimate, governance beyond the nation state must contain elements of law, the authors try to find the answer to that dilemma through empirical research comparing compliance with three different sets of norms at three different levels of governance – Germany, the European Union, and the World Trade Organization. Therefore, LAW AND GOVERNANCE IN POSTNATIONAL EUROPE presents an empirical analysis of compliance directed by deep theoretical questions concerning, not only the possibility of law beyond the nation state, but the concept and the very nature of law itself. Actually, the authors underline these profound normative concerns as one of the differences between their study and other analyses of compliance which have inspired it.

The three sets of comparisons that constitute the core of the empirical analysis contained in the book were the result of the combination of two steps: the type of policy –constitutive, regulative and redistributive – and its implementation at three different levels of governance –Germany, the EU and the WTO; this combination leaded to the study of compliance with subsidy controls in Germany, the EU and the WTO; foodstuff regulations in the EU and the WTO and, finally, redistribution of financial resources in Germany and the EU. The departing hypothesis of this case-study design was that comparing compliance with regulations that share a similar content and depth across those three political settings, could be a good way to identify the key variables explaining “the determinants of compliance.” Yet, one of the first theoretical problems the authors had to overcome was the possibility of that comparison itself. Contrary to those who affirm the special nature of the European Union, a feature that would not allow such a comparison with a nation state, such as Germany, or an international organization, such as the WTO, the study treats Germany, the EU and the WTO as governance systems that are comparable, though without denying or ignoring their differences: all of them establish binding rules to promote the collective wellbeing and the three of them occasionally face non-compliance problems and must find ways to promote compliance. [*789]

The conceptual and analytical framework for the research develops the concept of compliance as different from implementation and effectiveness, though strongly connected, and as having a double dimension: the difference between obligation and behavior, and how those eventual differences are dealt with –“how non compliance is handled.” By combining both compliance dimensions, the authors use four values to describe the different degrees of compliance observable in the three different cases studied: good compliance –“if the difference between the prescriptions and proscriptions of a norm is non existent or negligible and its addresses do no publicly voice their discontent with a rule,” recalcitrant compliance – “if the difference between the prescriptions and proscriptions of a norm is non existent or negligible but nevertheless its addresses publicly voice their discontent with it,” initial non compliance –“if a significant difference between the prescriptions and proscriptions of a norm and a change in the behavior of its addresses due to allegations of non compliance and the activities following the allegation” are observable – and compliance crisis – “if a significant difference between the prescriptions and proscriptions of a norm and no change in the behavior of its addresses although the practice has been detected, alleged and/or outlawed by a decision of an authorized dispute settlement body or court” are observable (p.9).

The book uses three different sources to determine whether there is a rule break – subjective evaluation, statistical data provided by International Organizations and doctrine – and the explanatory variables derive from two sets of non compliance sources: voluntary and involuntary non-compliance and non-compliance due to a substantial challenge to the norm or due to a technical problem rendering compliance impossible despite a willingness to do so. These sets – cheating/ambiguity and wrongfulness/lack of capacity to implement – relate to several theoretical perspectives explaining compliance and non-compliance. The authors conceive these perspectives not as competing points of view but as complementary and strongly connected theoretical frameworks which provide the variables to explain the empirical results obtained in the cases studied:

-Rational institutionalism, which provides two variables explaining compliance: monitoring and sanctioning.

-Legalization, which provides three different values: juridification, legal internalization and civil internalization.

-Legitimacy, which focuses on participation and social acceptance.

-Management, which relates to resources/capacity and responsiveness/reflexibility.

According to this analytical/conceptual framework, Chapter 2 (State Aid Controls in Germany, the EU and the WTO), Chapter 3 (Foodstuff Regulations in the EU and the WTO), and Chapter 4 (Redistributive Policies in Germany and the EU) follow the same structure:

-First, a description of the contents of the regulation under examination and presentation of some examples of how non-compliance is handled are provided.

-Second, each study examines the degree of compliance with the specific regulation at the different levels [*790] establishing a kind of “compliance ranking.”

-Third, the variables derived from the four theoretical perspectives are used to explain the empirical analytical results in order to determine which ones seem to have the greatest influence.

Using this design, the authors reach two different kinds of conclusions, those derived from the empirical analysis and those linked to the theoretical concerns guiding the research, with special attention to the European integration process.

With regard to subsidy control, the EU achieves the best compliance rates and, since 1993, has the strictest state aid control regime, with considerable correspondence between member states’ practice and the norms. On the other hand, there has been no compliance with the rules in Germany, and the same applies to the former GATT until 1995, when its capacities were strengthened by the creation of the WTO. According to the authors, these empirical results are best explained by the rational institutionalism and legalization variables.

The empirical analysis of compliance with foodstuff regulations across the EU and the WTO again shows the European Union as having the best compliance results, though cases of initial non-compliance are detected, while figures relating the WTO reveal a number of permanent compliance crises. The low compliance records of the two institutions are best explained by the legitimacy theoretical perspective: the foodstuff regulation analysis finds that a detailed institutional design and a sophisticated set of legal instruments are effective means for eliciting compliance, to the extent that they are embedded in and supported by public discourse and social acceptance.

With respect to the intergovernmental redistributive policies in Germany and the EU, there has been “good compliance” in the latter, but the empirical data reveal “recalcitrant compliance” in Germany. From the authors’ perspective these observations are best explained by the second variable within the management theoretical perspective, responsiveness/reflexibility.   The lower German compliance rate derives from an outdated social consensus regarding the country’s redistributive regime: there would have been a social paradigm shift according to which redistributive policies have to be tied to a demand to the recipients to make a contribution to overcome their dependency, not reflected by the institutional structures.

From a general perspective, LAW AND GOVERNANCE IN POSTNATIONAL EUROPE rejects the hypothesis that compliance rates are systematically better within the nation state, as in the three cases studied the best compliance records are those of the EU.  Thus, it is not clear that reliable law and legal equality can be expected only in the national context. Though the authors find that compliance beyond the nation state can be achieved, their study suggests that this depends on the interplay of a number of different compliance determinants; in other words, compliance is determined by interaction among variables from the different theoretical perspectives, which, as said above, should not be considered as isolated and competitive points of [*791] view but as interactive and complementary.

In all the cases good compliance records are generally accompanied simultaneously by both the principles of rational institutionalism and legalization; actually, the authors conclude that it is their interaction that makes the EU so effective. But, as especially the foodstuff study shows, the determinants of rational institutionalism and legalization can break down when legitimacy fails. Thus, the absence of legitimacy works as a disturbance variable, as legitimacy is decisive for handling compliance problems effectively.  Actually, the research indicates that the Achilles heel of international regulations is, precisely, the existence of territorially fragmented publics.  With respect to the management perspective, it seems to be only partially relevant. It is true, however, that its second dimension, responsiveness/reflexibility, is an important reason for compliance problems, related to the perception that there is no chance to adapt rules to reflect changing preferences and needs.

The research carried out in the book would have relevant implications for the analysis of the European integration process. The authors underline the fact that the European Union has the same Achilles heel of every international regulation -an insufficient degree of societal integration binding together the different political discourses in the member States, which makes the EU still far from being a political community. Currently, the European Union is a community of law without social prerequisites and, as a consequence, law is vulnerable to any challenge to its legitimacy.

In conclusion, from the point of view of the authors, a monopoly of force is not required to generate political union between territorial political units, constitutionalism is not restricted exclusively to the nation state, and the distinction between hierarchical coercive and horizontal non-coercive implementation of norms is too simplistic. In their opinion, a more adequate image for understanding and describing politics in postnational [*792] constellations is that provided by the concept of multilevel governance, where power is shared among different levels of decision making, brought together by the force of legal rules. However, its weakness appears when regulations contradict the perceived interest of a broad and nationally fragmented public. As a consequence, executive multilateralism should be substituted by a socially sanctioned, and therefore democratically legitimized, multilateralism: “our thesis [is] that postnational governance needs not choose between anarchy and full-blown hierarchy, but can (and does) realize new modes of governance which go beyond that dichotomy,” being “well advised to respect the insight that valid law should not be decoupled from democratic procedures and public support” (p.217). Against this background, “the increasing juridification of European and international politics, the extension of participation of the European Parliament, and the pursuit of new forms of participation for non-governmental actors in the EU and the WTO must also be understood as part of an institutional learning process with the attempt being to eliminate perceived deficits. Thus, while economic and political globalization may present a challenge to the institutional order of the national constellation, it is at the same time a chance to meet this challenge constructively, with a strategy of developing and improving the institutional characteristics necessary for effective and legitimate post-national constellations” (p.217).

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© Copyright 2005 by the author, Gonzalo Arruego.