European Integration as Compromise:Recognition, Concessions and the Limitsof Cooperation
THE ROLE PLAYED BY COMPROMISE IN EUROPEAN INTEGRATION HAS
been widely recognized and commented upon. European Union(EU) scholars and practitioners have analysed the predominant ‘con-sensus reflex’2 and ‘culture of compromise’3 at the heart of Commu-nity decision-making; the EU’s constitutional settlement, combiningfunctional market integration with a high level of institutionalizationand the coexistence of disparate domestic constitutions, has beencalled a ‘constitutional compromise’;4 and negotiation theorists havepointed to the key role of both integrative bargaining in EU decision-making5 and compromise agreements as bargaining equilibria.6 In
1 I would like to thank Hartmut Behr, Richard Bellamy, Markus Kornprobst, MilesHewstone and Ian O’Flynn for their helpful comments on an earlier version of thispaper. My thanks also go to all participants of the 2010 workshop on ‘Meeting in theMiddle: The Feasibility and Morality of Compromise in Global Politics’ at the ViennaSchool of International Studies, and to the audience of the 2011 UACES panel on‘Future Directions of European Integration’.
2 Dorothee Heisenberg, ‘The Institution of “Consensus” in the European Union:Formal Versus Informal Decision-Making in the Council’, European Journal of PoliticalResearch, 44: 1 (2005), pp. 65–90.
3 Jeffrey Lewis, ‘Is the “Hard Bargaining” Image of the Council Misleading? TheCommittee of Permanent Representatives and the Local Elections Directive’, Journal ofCommon Market Studies, 36: 4 (1998), pp. 479–504.
4 Andrew Moravcsik, ‘The European Constitutional Compromise and the Neo-functionalist Legacy’, Journal of European Public Policy, 12: 2 (2005), pp. 349–86.
5 Ole Elgström and Christer Jönsson, ‘Negotiation in the European Union: Bar-gaining or Problem-Solving?’, Journal of European Public Policy, 7: 5 (2000), pp. 684–704;Andreas Dür and Gemma Mateo, ‘Choosing a Bargaining Strategy in EU Negotiations:Power, Preferences, and Culture’, Journal of European Public Policy, 17: 5 (2010),pp. 680–93.
6 Javier Arregui and Robert Thomson, ‘States’ Bargaining Success in the EuropeanUnion’, Journal of European Public Policy, 16: 5 (2009), pp. 655–76.
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short, references to compromise have come from the differentsubfields of European politics and from across the meta-theoreticalspectrum.
At the same time, the systematic conceptual, analytical or norma-tive study of compromise has remained the exception.7 Conceptually,scholars have told us little about what defines a compromise, aboutwhat distinguishes a compromise from other negotiated agreements,or about how types of compromise differ from one another; further-more, they tend to use the terms ‘compromise’ and ‘consensus’interchangeably. Analytically, there are few systematic studies of thesocial and institutional context conditions that facilitate compromiseat the supranational level, or of how a negotiated agreement becomesan accepted and, hence, effective instrument of EU governance. Thisis even more surprising when we consider the wealth of studies ondeliberation and persuasion and on the conditions that facilitate thesearch for consensus.8 Finally, in spite of the burgeoning literature onEU legitimacy, spanning the discussion of pre-political community,procedural democracy and systemic output,9 the legitimizing force ofcompromise – an ‘essential element’ in relieving the tension between
7 Richard Bellamy and Justus Schönlau, ‘The Good, the Bad and the Ugly: TheNeed for Constitutional Compromise and the Crafting of the EU Constitution’, inLynn Dobson and Andreas Føllesdal (eds), Political Theory and the European Constitution,London and New York, Routledge, 2004, pp. 56–74; Christine Reh, ‘Consensus, Com-promise and “Inclusive Agreement”: Negotiating Supranational Governance’, in Cor-neliu Bjola and Markus Kornprobst (eds), Arguing Global Governance: Agency, Lifeworldand Shared Reasoning, London, Routledge, 2010, pp. 177–93.
8 See for example Jürgen Neyer, ‘Explaining the Unexpected: Efficiency and Effec-tiveness in European Decision-Making’, Journal of European Public Policy, 11: 1 (2004),pp. 19–38; Diana Panke, ‘More Arguing than Bargaining? The Institutional Designs ofthe European Convention and Intergovernmental Conferences Compared’, Journal ofEuropean Integration, 28: 4 (2006), pp. 357–79; Thomas Risse and Mareike Kleine,‘Deliberation in Negotiations’, Journal of European Public Policy, 17: 5 (2010),pp. 708–26.
9 See for example Fritz W. Scharpf, Governing in Europe: Effective and Democratic?Oxford and New York, Oxford University Press, 1999; Christopher Lord and DavidBeetham, ‘Legitimizing the EU: Is There a “Post-Parliamentary Basis” for its Legitima-tion?’, Journal of Common Market Studies, 39: 3 (2001), pp. 443–62; Andreas Føllesdal andSimon Hix, ‘Why There is a Democratic Deficit in the European Union: A Response toMoravcsik and Majone’, Journal of Common Market Studies, 44: 3 (2005), pp. 533–62.
cooperation and competition10 – has remained strangely absent fromthe debate.
In short, while the existence of compromise has been widely rec-ognized by EU scholars and practitioners alike, the concept andfunction of compromise have remained under-represented in theliterature on EU politics. This is surprising since the concept ofcompromise can be linked to three questions at the heart of Euro-pean integration: (1) How does the EU accommodate diversity? (2)What makes supranational rule normatively justifiable? (3) Who orwhat defines the limits of European cooperation?
This article attempts to get closer to the concept of compromiseand to the role that compromise can play in legitimizing supra-national governance. In a nutshell, the article argues that the EU – adivided, multilevel and functionally restricted polity – is highlydependent on the legitimizing force of compromise and of ‘inclusivecompromise’ more specifically. This is true for horizontal or micro-level relations between political actors (where compromise worksthrough ‘procedural accommodation’) and for vertical or macro-level relations between systems of governance (where compromiseworks through ‘constitutional compatibility’). The legitimizingpotential of inclusive compromise stems from its core characteristic –the recognition of difference – and the process through which suchan agreement is reached, combining mutual, generous concessionsand communication characterized by perspective-taking, empathicconcern and justification. Recognition signals non-domination;mutual concessions are non-coercive and establish long-term trust indiffuse reciprocity; and an ongoing communication between partiesabout their grounds for conflict, characterized by justification,perspective-taking and empathic concern, promotes a logic of coop-eration. The process of reaching an inclusive compromise is ‘thinner’than deliberation but ‘thicker’ than bargained exchange. Substan-tively, inclusive compromise differs from both consensus and bar-tered agreements: it is not aimed at the synthesis of positions, and theconcessions offered are generous rather than minimal. Signallingnon-domination and promoting a logic of cooperation, inclusivecompromise can thus be instrumental in legitimizing political rule inthe divided polity that is the EU. Given this potential, the article,
10 Avishai Margalit, On Compromise and Rotten Compromises, Princeton, PrincetonUniversity Press, 2010, p. 38.
finally, investigates the limits to the possibility of reaching such anagreement. I suggest that these limits are issue specific and linked tothe question of where the costs of cooperation are borne, pertainingeither to accommodation (at the micro level) or to constitutionalcompatibility (at the macro level).
The article proceeds in the following steps. The first section intro-duces the EU as divided, multilevel and functionally restricted, andidentifies a number of challenges that this characterization raises forany attempt to legitimize such a polity. Building on the definition ofcompromise suggested in the introduction to this volume,11 the nextsection defines the concept of inclusive compromise. After this, thethird part analyses the legitimizing force of inclusive compromise, atboth the vertical and horizontal levels of governance. The followingsection identifies the issue-specific limits to compromise and, thus, tosupranational cooperation more generally. The final section con-cludes by outlining routes for follow-up empirical research.
THE EUROPEAN UNION: DIVIDED, MULTILEVEL ANDFUNCTIONALLY RESTRICTED
The EU is, first and foremost, an arena of governance beyond thenation-state that produces and enforces binding political decisions.In doing so, the EU covers a broader policy remit than traditionalinternational organizations do, and it is exceptionally effective; Com-munity law is widely complied with in – and therefore legitimized by– its member states.12
To produce and institutionalize these policy arrangements, actors– no matter at what level of EU decision-making – mainly resolve theirconflicts through negotiation.13 Negotiation is one possible formof finding a solution, ‘[w]hen a group of equal individuals are tomake a decision on a matter that concerns them all and the initial
11 Richard Bellamy, Markus Kornprobst and Christine Reh, ‘Introduction: Meetingin the Middle’, this volume, pp. 275–95.
12 Fritz W. Scharpf, ‘Legitimacy in the Multilevel European Polity’, European Politi-cal Science Review, 1: 2 (2009), pp. 173–204.
13 Helen Wallace, ‘Politics and Policy in the EU: The Challenge of Governance’, inHelen and William Wallace (eds), Policy-Making in the European Union, 3rd edition,Oxford, Oxford University Press, 1996, pp. 3–36, at p. 32; Dür and Mateo, ‘Choosinga Bargaining Strategy’.
distribution of opinion falls short of consensus’.14 Negotiation differsfrom numerical aggregation (conflict resolution through voting),adjudication (conflict resolution through hierarchical judicialchoice) and force (conflict resolution through physical coercion).15
So far, the study of EU negotiation has mainly attracted theorists ofrationalist bargaining on the one hand, and scholars of argument-ation, deliberation and persuasion on the other.16 The formerexplain decision outcomes as bargaining equilibria given set prefer-ences in the policy space;17 the latter turn to the EU’s deliberativedecision style to explain compliance with Community law,18 and toidentify alternative forms of democratic legitimacy.19 Supranationaldecision-making has also been used to test theories of deliberation,20
argumentation21 and problem-solving.22
In this article I will, instead, focus on the EU’s constant search forand reliance on compromise. More specifically, I will explore how the
14 Jon Elster, ‘Introduction’, in Jon Elster (ed.), Deliberative Democracy, Cambridge,Cambridge University Press, 1998, pp. 1–18, at p. 5.
15 Christer Jönsson, ‘Diplomacy, Bargaining and Negotiation’, in Walter Carlsnaes,Thomas Risse and Beth A. Simmons (eds), Handbook of International Relations, London,Sage, 2002, pp. 212–34, at p. 217II. Throughout this article ‘negotiation’ is used in ageneric way, namely as one possible mode of solving conflicts peacefully, rather thanas the narrow concept of ‘bargaining’ that dominates the study of European politicsand international relations.
16 For a more encompassing approach see Andreas Dür, Gemma Mateo and DanielC. Thomas (eds), Negotiation Theory and the EU: The State of the Art, London and NewYork, Routledge, 2011.
17 Robert Thomson, Frans N. Stokman, Christopher H. Achen and Thomas König(eds), The European Union Decides, Cambridge, Cambridge University Press, 2006;Arregui and Thomson, ‘States’ Bargaining Success’.
18 Neyer, ‘Explaining the Unexpected’.19 Erik O. Eriksen and John O. Fossum (eds), Democracy in the European Union:
Integration Through Deliberation?, London and New York, Routledge, 2000.20 Christian Joerges and Jürgen Neyer, ‘From Intergovernmental Bargaining to
Deliberative Political Processes: The Constitutionalisation of Comitology’, EuropeanLaw Journal, 3: 3 (1997), pp. 273–99; Christian Joerges and Jürgen Neyer, ‘Transform-ing Strategic Interaction into Deliberative Problem-Solving: European Comitology inthe Foodstuffs Sector’, Journal of European Public Policy, 4: 4 (1997), pp. 609–25; Risseand Kleine, ‘Deliberation in Negotiations’.
21 Daniel Naurin, ‘Most Common When Least Important: Deliberation in theEuropean Union Council of Ministers’, British Journal of Political Science, 40: 1 (2010),pp. 31–50.
22 Elgström and Jönsson, ‘Negotiation in the European Union’.
nature of inclusive compromise and the process through which it isreached can respond to the particular challenges faced by anyattempt to legitimize the EU.
First, the EU has been described as a ‘deeply divided, plural’society,23 and these deep divisions make established forms of majori-tarian democracy not only difficult but potentially illegitimate toapply at the supranational level. As a polity the EU is, indeed, seg-mented by multiple social, cultural and economic divides, but, firstand foremost, by the national cleavages that result from its composi-tion of 27 member states. Given the absence of preconditions for fullyfledged supranational democracy, these 27 states continue to bethe prime arenas for both democratic contestation and social solidar-ity.24 The ensuing challenges for the possibility to legitimize theUnion have been debated extensively.25 Essentially, the continuedexistence (and pre-dominance) of national cleavages calls for non-majoritarianism at the supranational level. Without a ‘demos to legiti-mize majority rule’,26 and given the risk of congruence betweenpolitical and national minorities, basic trust in the alternationbetween government and opposition is lacking. Allowing the minor-ity to be ruled by the majority – a well-established practice in nationaldemocracies – would therefore ‘bring about a decline in the sociallegitimacy of the polity with consequent dysfunctions and evendisintegration’.27
Second, the EU is a multilevel polity, where political authorityis allocated across supranational, national and subnational levels,and where EU decisions depend on domestic implementation.28
Throughout the history of European integration, the reliance ondomestic compliance (and, thus, legitimacy) has shielded the EU
23 Arend Lijphart, Patterns of Democracy: Government Forms and Performance in Thirty-Six Countries, New Haven, CT, and London, Yale University Press, 1999, p. 46.
24 See for example Joseph H. H. Weiler, ‘Problems of Legitimacy in Post 1992Europe’, Aussenwirtschaft, 46: 3/4 (1991), pp. 411–37; Dieter Grimm, ‘Does EuropeNeed a Constitution?’, European Law Journal, 1: 3 (1995), pp. 282–302.
25 See for example Weiler, ‘Problems of Legitimacy’; Simon Hix, ‘The Study of theEuropean Union II: The “New Governance” Agenda and its Rival’, Journal of EuropeanPublic Policy, 5: 1 (1998), pp. 38–65; Scharpf, Governing in Europe.
26 Hix, ‘The Study of the European Union II’, p. 51.27 Weiler, ‘Problems of Legitimacy’, p. 419.28 Scharpf, ‘Legitimacy in the Multilevel European Polity’; Vivien Schmidt, Democ-
racy in Europe: The EU and National Polities, Oxford, Oxford University Press, 2007.
from a fully fledged acceptance crisis.29 The EU’s multilevel naturehas therefore contributed to stability. Yet, in combination with theabove-defined challenge – the absence of pre-political community,democratic space and social solidarity in a highly divided polity – italso raises an additional challenge for any attempt to legitimize supra-national governance: if the predominant arena for national contes-tation remains national, if individual political rights must beprotected at the domestic level,30 and if the EU, therefore, dependson the continued legitimacy of its member states,31 then EU legiti-macy demands that political values and their structural realization, inthe form of rights and institutions, are compatible across arenas ofgovernance.32
Third, although the EU is a polity, it is a polity with the function-ally restricted purpose of economic integration; in particular, its‘market constitution’33 does not include a competence for taxation orfor redistributive social policies. This has two repercussions for anyattempt to legitimize the Union’s decisions. The lack of a compe-tence in redistributive welfare policies – the one issue area of contin-ued salience for national electorates – and the fact that EU electionsdo not translate into clear choices between welfare agendas limit thepotential for competitive democracy at the supranational level.34 Inaddition, the EU lacks both the competence and the resources tokeep potentially outvoted minorities committed to the supranational
29 Fritz W. Scharpf, ‘Reflections on Multilevel Legitimacy’, MPIfG Working Paper 3,2007, p. 8.
30 Jospeh H. H. Weiler, ‘In Defence of the Status Quo: Europe’s Constitutional“Sonderweg”’, in Joseph H. H. Weiler and Marlene Wind (eds), European Constitution-alism Beyond the State, Cambridge, Cambridge University Press, 2003, pp. 7–23; RichardBellamy, ‘The Liberty of the Moderns? Market and Civic Freedom within the EU’,Global Constitutionalism, 1: 1 (2012), pp. 141–72.
31 Scharpf, ‘Legitimacy in the Multilevel European Polity’.32 Nicole Bolleyer and Christine Reh, ‘EU Legitimacy Revisited: The Normative
Foundations of a Multilevel Polity’, Journal of European Public Policy, 19: 4 (2012),pp. 472–90.
33 Miguel P. Maduro, We the Court: The European Court of Justice and the EuropeanEconomic Constitution, Oxford, Hart, 1998.
34 Stefano Bartolini in Simon Hix and Stefano Bartolini, ‘Politics: The Right orWrong Sort of Medicine for the EU?’, Notre Europe Policy Paper 19, 2006; AndrewMoravcsik, ‘“In Defence of the Democratic Deficit”: Reassessing Legitimacy in theEuropean Union’, Journal of Common Market Studies, 40: 4 (2004), pp. 603–24. For thecounter-argument see Føllesdal and Hix, ‘Why There is a Democratic Deficit’.
polity by offering generous welfare pay-offs. At the same time, thereis no clear constitutionally defined hierarchy of levels and compe-tences, and supranational governance therefore risks underminingcore national welfare choices.35 A functioning single market may, infact, make such a challenge both necessary and unavoidable.
In sum, given its division, multilevel nature and functional restric-tion, the EU cannot rely on the procedural and substantive mecha-nisms that make political rule acceptable at the national level,primarily majoritarianism and redistribution; at the same time, itneeds to keep domestic legitimacy intact.
This well-known diagnosis has been followed by a plethora ofsuggestions for strengthening EU legitimacy, including the empow-erment of the citizen as the political subject in supranational parlia-mentary democracy,36 the systematic involvement of civil society as analternative form of democratic input37 and a focus on deliberativedemocracy.38 In the following, I will suggest that inclusive compro-mise can, to a degree, compensate for the lack of those proceduraland substantive mechanisms that legitimize political rule at thenational level. This legitimizing work is done through the corefeature of inclusive compromise and through the process of reachinginclusive compromise: the recognition of difference conferredthrough mutual, generous concessions and expressed in communi-cation characterized by justification, perspective-taking and empathicconcern. In doing so, I will not discuss institutional mechanisms ofaccommodation as set up in the EU’s political system: such mecha-nisms, including constitutional rigidity, over-sized majorities, subsid-iarity and proportional institutional composition have been amplydescribed by theorists of consociational and consensus democracy.39
Instead, I will look at the processes through which diversity can beaccommodated at the micro level of interaction (between politicalnegotiators) and at the macro level of governance (betweenconstitutional systems). In short, I will discuss how the search for
35 Bellamy, ‘The Liberty of the Moderns’; Scharpf, ‘Reflections on MultilevelLegitimacy’; Scharpf, ‘Legitimacy in the Multilevel European Polity’.
36 See for example Lord and Beetham, ‘Legitimizing the EU’.37 See for example Beate Kohler-Koch, ‘Civil Society and EU Democracy: “Astro-
turf ” Representation?’, Journal of European Public Policy, 17: 1 (2010), pp. 100–16.38 See for example Eriksen and Fossum, Democracy in the European Union.39 Rudy B. Andeweg, ‘Consociational Democracy’, Annual Review of Political Science,
3 (2000), pp. 509–36, at p. 515; Lijphart, ‘Patterns of Democracy’, pp. 42ff.
compromise should be constructed, and what needs to be ‘off limits’in this search, in order to contribute to legitimizing supranationalgovernance.
TWO TYPES OF COMPROMISE
Before discussing in the next section why, at what level and throughwhich processes compromise can legitimize the generation ofbinding rules beyond the nation-state, I need to outline what I meanby ‘compromise’. In the introduction to this volume, Bellamy, Korn-probst and Reh identify compromise as one possible solution to asituation of conflict. An agreement distinct from consensus, compro-mise has three defining features: first, all participants to the agree-ment must make concessions; second, those concessions must bevoluntary rather than coerced; third, although parties reach an agree-ment through compromise, their grounds for conflict will persist.40
As argued in the introduction, compromises can come in differentshapes and forms; they differ more specifically in the nature of con-cessions made, in degrees of (non-)coercion, and in whether (or not)the grounds for conflict are transformed.41 In the following, I willbuild on the introduction to this volume as well as previous work byBellamy and Hollis,42 Margalit43 and Reh44 to distinguish two typesof compromise – ‘bartered’ and ‘inclusive’ – according to theircharacteristics and according to the process through which they arereached.
The introduction to this volume maps a continuum for each of thethree defining features of compromise. First, concessions can stretchfrom minimal, pain-free and strategic to generous, costly and socialmoves; second, in the absence of overt coercion, interaction canrange from competitive gain maximization to cooperative accommo-dation; third, albeit persisting, the parties’ reasons for conflict
40 Bellamy, Kornprobst and Reh, ‘Introduction’, p. 285.41 Ibid., pp. 285ff.42 Richard Bellamy and Martin Hollis, ‘Consensus, Neutrality and Compromise’, in
Richard Bellamy and Martin Hollis (eds), Pluralism and Liberal Neutrality, London andPortland, OR, Frank Cass, 1999, pp. 54–78.
43 Margalit, On Compromise, chapter 2.44 Reh, ‘Consensus, Compromise and “Inclusive Agreement”’.
can vary as to whether and how much they are elucidated ortransformed.45
A bartered compromise – an ‘anaemic’ agreement, as Margalit calls it46
– sits at the far left end of each continuum. To reach such a compro-mise, all parties concede, but their concessions will be purely strat-egic; the minimum moves necessary to strike a deal, they are tightlycircumscribed by an actor’s predefined preferences and payoffmatrix. A bartered compromise is struck on the terrain of the‘trader’;47 actors ‘bring something to a market and take somethingaway, after exchanging freely with others to mutual advantage’.48 Inshort, individual gain maximization – rather than mutual accommo-dation – is at the core of a bartered agreement. If compromise,indeed, mediates the tension between cooperation and competi-tion,49 then bartered compromise tilts heavily towards the latter.Finally, built through minimal, pain-free and strategic concessions, abartered compromise has little transformative potential. No compro-mise agreement can, or aims to, do away with the underlying groundsfor conflict, but a bartered compromise cannot even contribute toelucidating them.
This is due to the process leading up to such an agreement. Theconcessions necessary for a bartered compromise are made in thestrategic process of competitive (or distributive) bargaining ratherthan in the integrative (or cooperative) variant of negotiation.50 Thetwo modes of bargaining share a key feature: aimed at maximizingwants, actors follow a volitive rather than an epistemic or normativelogic.51 Where actors bargain – no matter in which way – they do not
45 Bellamy, Kornprobst and Reh, ‘Introduction’, pp. 285ff.46 Margalit, On Compromise, p. 39.47 Richard Bellamy, Liberalism and Pluralism: Towards a Politics of Compromise,
London, Routledge, 1999, chapter 1.48 Bellamy, Liberalism and Pluralism, p. 96.49 Margalit, On Compromise, pp. 37ff.50 David A. Lax and James K. Sebenius, The Manager as Negotiator: Bargaining for
Cooperation and Competitive Gain, New York and London, Free Press, 1986, pp. 112ff.Daniel Naurin, ‘Why Give Reason? Measuring Arguing and Bargaining in SurveyResearch’, Swiss Political Science Review, 13: 4 (2007), pp. 559–75; Richard E. Walton andRobert B. McKersie, A Behavioral Theory of Labor Negotiations: An Analysis of a SocialInteraction System, New York, McGraw-Hill, 1995, pp. 144ff.
51 Katharina Holzinger, ‘Kommunikationsmodi und Handlungsmodi in den Inter-nationalen Beziehungen: Anmerkungen zu einigen irreführenden Dichotomien’,Zeitschrift für Internationale Beziehungen, 8: 2 (2001), pp. 243–86, at p. 268.
strive to persuade their fellow negotiators to converge on a singleviewpoint or to empathize with the reasons behind a negotiator’spreferred course of action. Bargaining intends to change behaviourand positions, not preferences or attitudes;52 in contrast to moredeliberative forms of interaction, it makes ‘no efforts at changing theminds of the others about what they want or what they perceive to beright’.53 More specifically, although the concessions behind a com-promise must never result from coercion, in a bartered agreement‘more for one means less for the other’.54 Here, bargaining is playedout as a competitive game; like traders in a market, actors attempt toextract the maximum from their opponents for the smallest possibleprice. They do not try to construct mutually beneficial and inclusivesolutions that would require more extensive concessions than a strictfocus on payoffs would allow.55 In this process, an actor’s success isdefined by her bargaining power, grounded either in material capa-bilities56 or in different preference intensities, exit options and alter-natives to negotiated agreement.57 Actors will only split the differenceequally where bargaining resources are distributed equally too; asMargalit puts it, ‘Meeting halfway may . . . be the result of an anemiccompromise, but only if the two sides are comparable in their bar-gaining strength.’58
In spite of sharing the three defining features with a barteredcompromise, an inclusive compromise differs from it with regard to thetypes of concessions made, the manifestation of non-coercion andthe transformative potential of the negotiation process. Sitting at thefar right side of each continuum identified in the introduction to thisvolume, such a ‘sanguine’ agreement, as Margalit calls it, can bedescribed as ‘an anemic compromise with additional features, the
52 Harald Müller, ‘Arguing, Bargaining and All That: Communicative Action,Rationalist Theory and the Logic of Appropriateness in International Relations’, Euro-pean Journal of International Relations, 10: 3 (2004), pp. 395–435, at p. 397.
53 Naurin, ‘Why Give Reason’, p. 561.54 Lax and Sebenius, The Manager as Negotiator, p. 119.55 Naurin, ‘Why Give Reason’, p. 563.56 Bruce B. De Mesquita, James D. Morrow and Ethan R. Zorick, ‘Capabilities,
Perception, and Escalation’, American Political Science Review, 91: 1 (1997), pp. 15–27.57 Andrew Moravcsik, ‘Taking Preferences Seriously: A Liberal Theory of Interna-
tional Politics’, International Organization, 51: 4 (1997), pp. 513–53.58 Margalit, On Compromise, p. 48.
most important being recognition’.59 In their search for inclusivecompromise, actors will not – and need not – change the preferencesand values underlying their negotiation positions, but they need tomake more costly and painful concessions than would be necessaryfor a bartered agreement. Hence, an inclusive compromise is notstruck on a trader’s terrain. Of course, to reach such an agreement,parties need to give and take, and they need to identify the necessarymoves strategically. Yet, parties in search of inclusive compromise domore. Even though actors are not open to changing their cherishedbeliefs or adapting their preferences accordingly – as they would doin the more deliberative search for consensus60 – they will engage inthe wider, more social process of accommodating each other’s con-cerns, practised ‘as part of the search for conditions of mutual accept-ability that reach towards a compromise that constructs a shareablegood’.61 Their interaction is characterized by more than the mereabsence of coercion: combining an individualist logic of volition witha strong motivation for sustained cooperation, actors will be ready toconcede more generously than their strategic position and bargain-ing resources would require. To ‘confer recognition’, an inclusivecompromise may ‘even involve a measure of sacrifice from the strongside, not driving as hard a bargain as it could’.62 In addressing thetension between cooperation and competition, inclusive compromisetherefore tilts towards the former. Finally, built through generous,costly and social concessions, the process of reaching an inclusivecompromise has a transformative potential. Unlike parties to a con-sensus, actors would have preferred a different outcome to theirnegotiation; they are fully aware of the costs that their compromiseentails. Yet, through the negotiation process, parties to an inclusivecompromise will have gained a wider awareness, not only of eachother’s goals and positions but also of the reasons underlying theirclaims. Although the grounds for conflict persist, actors’ perceptionsof their ‘opponents’ and of the situation of conflict itself can there-fore be elucidated and transformed. As was the case with barteredagreement, all three characteristics of inclusive compromise areowed to the process through which it is reached.
59 Ibid., p. 39.60 Thomas Risse, ‘“Let’s Argue”! Communicative Action in World Politics’, Interna-
tional Organization, 54: 1 (2000), pp. 1–39, at p. 7.61 Bellamy, Liberalism and Pluralism, p. 101.62 Margalit, On Compromise, p. 41.
The particular type of concessions required for an inclusive com-promise are made in a process of integrative bargaining, preceded bya stage of ‘thin’ arguing.63 Integrative bargaining shares one keycharacteristic with its distributive variant: actors do not aim to con-verge on a ‘synthesis’64 about the ‘right course of action’;65 like thecompetitive negotiators or traders discussed above, they follow anessentially volitive logic. However, actors willing to concede equallyand generously must combine a volitive logic with the motivation tocooperate and with trust in diffuse reciprocity; both conditionsunderlie the willingness to concede equally and generously.66 Indeed,integrative bargaining maximizes wants in such a way that the pref-erences of all parties around the table can be accommodated.67
Agreement must be built through far-reaching concessions, and suchaccommodation requires actors who are strategic but cooperative,and whose interest in substantive ‘mutually satisfying solutions’68 iscombined with an interest ‘in the character of the negotiationprocess itself ’.69 To reach agreement, these actors resort to bargain-ing speech acts such as suggesting, offering, promising, conceding,upholding and retreating concessions, linking issues, trading com-pensations and agreeing on a second best;70 they share informationand candidly speak ‘their minds about what they want’.71 Based on alogic of cooperation and on trust, parties engage in a process ofmutual accommodation, including each other’s interests and values
63 Reh, ‘Consensus, Compromise and “Inclusive Agreement”’.64 Bellamy and Hollis, ‘Consensus, Neutrality and Compromise’, p. 64.65 Naurin, ‘Why Give Reason’, p. 563. For a more extensive discussion of integrative
bargaining see Lax and Sebenius, The Manager as Negotiator; for an overview of differentnegotiation modes see Terence Hopmann, ‘Negotiation Data: Reflections on theQualitative and Quantitative Analysis of Negotiation Processes’, International Negotia-tion, 7 (2002), pp. 67–85.
66 For an excellent discussion of the preconditions of successful bargaining moregenerally see Panke, ‘More Arguing than Bargaining?’.
67 Naurin, ‘Why Give Reason’, p. 562.68 Bellamy, Liberalism and Pluralism, p. 101.69 Lax and Sebenius, The Manager as Negotiator, p. 72.70 Bellamy, Liberalism and Pluralism, p. 104; Katharina Holzinger, ‘Verhandeln statt
Argumentieren oder Verhandeln durch Argumentieren? Eine empirische Analyse aufder Basis der Sprechakttheorie’, Politische Vierteljahresschrift, 42: 3 (2001), pp. 414–46, atp. 428.
as far as possible. Such accommodation is at the core of inclusivecompromise.
Hinging on rich communication, but not on deliberation, integra-tive bargaining is not geared towards changing actors’ deep-seatedinterests, values and beliefs. Yet, the granting of mutual concessionsrequires that these interests, values and beliefs are exchanged,explained and understood, and that actors trust each other’s willing-ness to concede reciprocally. To settle a conflict successfully, integra-tive bargaining must therefore be preceded by a communicativeprocess that builds actors’ willingness to concede and to concedegenerously. I call this process ‘thin’ arguing.72
International negotiations can be played out in either an arguingor a bargaining mode or in a combination of the two; each modediffers according to underlying actor motivation, procedural charac-teristics and substantive effects. If bargaining can play out in a com-petitive and an integrative variant, arguing can come in a ‘thin’ anda ‘thick’ form. The two are identical in procedural terms: negotiatorswho argue try to solve conflicts by giving reasons and by justifyingtheir preferred course of action.73 They do so by using a set of distinctspeech acts such as stating, asking, explaining, justifying, contradict-ing, agreeing, upholding or retreating arguments.74 Yet, dependingon whether negotiators argue in a ‘thin’ or a ‘thick’ sense, theirunderlying motivations and the justifications used will differ.
The goal of ‘thick’ arguing is to reach consensus on the rightcourse of action.75 ‘Thick’ arguing is targeted at – and, under certainconditions, can translate into – substantive persuasion and prefer-ence change and, thus, lead to reasoned consensus. This mode ofinteraction has been covered extensively by the deliberative strand inEuropean Studies and International Relations (IR), and, given myinterest in compromise rather than consensus, ‘thick’ arguing is ofless relevance here.
When arguing ‘thinly’, actors try to reach agreement by convinc-ing co-negotiators to take a particular course of action, but they donot target each other’s preferences as the ‘ordered and weighted set
72 Reh, ‘Consensus, Compromise and “Inclusive Agreement”’.73 Nicole Deitelhoff and Harald Müller, ‘Theoretical Paradise: Empirically Lost?
Arguing with Habermas’, Review of International Studies, 31 (2005), pp. 167–79, atp. 172.
74 Holzinger, ‘Verhandeln statt Argumentieren’, p. 428.75 Naurin, ‘Why Give Reason’, p. 563.
of values placed on future substantive outcomes’.76 As such, ‘thin’arguing does not imply that actors are open to being persuaded,ready to see their beliefs challenged by the better argument or pre-pared to adopt altruistic positions; they will only choose ‘a reasoningstyle, in which actors abstain from using threats and promises, and tryto make their proposals plausible by referring to general principlesand norms’.77 These can be substantive norms, on which claims of‘factual truth or normative validity’ are based.78 But they can also beprocedural principles, such as equal treatment, fairness or the rightto be heard and accommodated. To achieve their goals, actors whoargue ‘thinly’ will mix other- or public-regarding arguments withself-regarding justifications; the latter will, first and foremost, explaina particular position taken.
In short, ‘thin’ arguing is an interpersonal process, designedto lead negotiators ‘to understand, appreciate and feel for oneanother’.79 As such, ‘thin’ arguing works as the crucial ‘pre-stage’ toactual negotiation in a situation of conflict. Characterized by justifi-cation (not by claims), dyadic in its communication structure andmixing self- as well as other-regarding arguments,80 it is a processduring which actors give reasons, talk and listen to each other, andcheck their initially held positions in order to construct a cooperativeatmosphere and to bolster the willingness to concede.81
In sum, both bartered and inclusive compromises can offer short-term solutions for a conflict which actors agree to settle by way ofnegotiation or majority decision; as such, both can be legitimateagreements. Yet, the potential to legitimize a decision in need ofnormative justifiability differs starkly between the two types of agree-ment. This is due to their different purposes – mutual advantage asopposed to mutual accommodation – as well as to the different
76 Andrew Moravcsik, The Choice for Europe, Ithaca, NY, Cornell University Press,1998, p. 24.
77 Neyer, ‘Explaining the Unexpected’, p. 28.78 Müller, ‘Arguing, Bargaining and All That’, p. 397.79 C. Daniel Batson and Nadia Y. Ahmad, ‘Using Empathy to Improve Intergroup
Attitudes and Relations’, Social Issues and Policy Review, 3: 1 (2009), pp. 141–71, atp. 142.
80 Thomas Saretzki, ‘Wie unterscheiden sich Argumentieren und Verhandeln?’, inVolker von Prittwitz (ed.), Verhandeln und Argumentieren: Dialog, Interessen und Macht inder Umweltpolitik, Opladen, Leske and Budrich, 1996, pp. 19–39.
81 Reh, ‘Consensus, Compromise and “Inclusive Agreement”’, pp. 183ff.
preconditions for distributive and integrative bargaining. In the nextsection, I will outline why only inclusive compromise has the poten-tial to legitimize the EU as a divided, multilevel and functionallyrestricted polity.
THE LEGITIMIZING POTENTIAL OF INCLUSIVE COMPROMISE
In the comparative study of political systems, scholars have discusseddifferent motivations behind the acceptance of political rule andrules; acceptance is understood as the behavioural expression ofsupport, while motivations are the reasons for granting this support.82
Such motivations form a ‘complex of reasons, moral as well as pru-dential, normative as well as self-interested’.83 Within this complex ofreasons, legitimacy relates to ‘the moral or normative aspect of powerrelationships’.84 As such, legitimacy is distinct from alternative moti-vations, most prominently incentives driven by self-interest.85 DavidBeetham identifies three conditions for legitimate political rule: con-formity to established rules or legal validity; the justifiability of rulesbased on the congruence between societal values and their structuralrealizations; and the express consent of the governed by way ofdemocratic procedures.86
As argued above, the EU – a divided, multilevel and functionallyrestricted polity – faces distinct challenges with regard to both nor-mative and utilitarian motivations behind the acceptance of itspolitical rule. First, as a highly divided polity, the EU lacks the pre-conditions for fully fledged competitive democracy as the establishedway of bringing about the express consent of the governed; in par-ticular, it lacks a pre-political community, an effective political spaceand social solidarity across national boundaries. Hence, majoritari-anism is problematic to apply, because it risks creating a systemicoverlap between outvoted minorities and national borders, and
82 David Beetham, The Legitimation of Power, Basingstoke, Macmillan, 1991,pp. 6–13; David Easton, A System’s Analysis of Political Life, New York and London,John Wiley & Sons, 1965, pp. 159–64.
83 Beetham, The Legitimation of Power, p. 26.84 Ibid., p. 25; see also Christian Reus-Smit, ‘International Crisis of Legitimacy’,
International Politics, 44: 2/3 (2007), pp. 157–74.85 Beetham, The Legitimation of Power, p. 27; see also Scharpf, Governing in Europe.86 Beetham, The Legitimation of Power, pp. 15–25.
because it requires trust in the regular alternation between govern-ment and opposition. Second, due to its multilevel nature, diversepolitical systems coexist in the European polity; each system is justi-fiable by its citizens’ affiliation with a set of fundamental values asexpressed in institutions and rights. Third, given its functionalrestriction, the EU lacks the legal competence and financialresources to tie minorities in through financial compensation andwelfare payments; hence, the Union is equally challenged when itcomes to motivations for accepting political rule that are based onincentives or self-interest.
In short, the EU needs to rely on alternative mechanisms to makeits decisions normatively justifiable and to bolster the acceptability ofsupranational governance. Such alternatives have been amply dis-cussed in the literature, ranging from increased transparency87 overPareto-efficient market regulation88 to deliberative forms of decision-making.89 In the following, I suggest that compromise has the poten-tial to do additional legitimizing work at the supranational level, bycompensating for the lack of preconditions of competitive democ-racy and social redistribution, and by successfully accommodatingdiversity in a divided, multilevel polity.
This potential is, however, limited to inclusive compromise; albeita compromise, a bartered agreement is unsuitable for legitimationbeyond offering short-term solutions to a conflict. As argued above,bartered compromises are struck by traders in markets. Based on alogic of competitive exchange, agreement is reached through aprocess of distributive bargaining by actors who are willing to tradeconcessions, who are equipped with the resources necessary toexchange, and who feel each other’s threats and promises to becredible.90 A bartered agreement will therefore be stable as long as:(1) the advantages gained last in their agreed form; (2) no party tothe agreement acquires resources that allow her to change the dealin her favour; and (3) the package deal remains intact (where theagreement is composite). Condition (3) is, in turn, dependent on the
87 Adrienne Héritier, ‘Elements of Democratic Legitimation in Europe: An Alter-native Perspective’, Journal of European Public Policy, 6: 2 (1999), pp. 269–82.
88 Giandomenico Majone, ‘Europe’s “Democracy Deficit”: The Question of Stan-dards’, European Law Journal, 4: 1 (1998), pp. 5–28.
89 For an overview see Jürgen Neyer, ‘The Deliberative Turn in IntegrationTheory’, Journal of European Public Policy, 13: 5 (2006), pp. 779–91.
continued existence of conditions (1) and (2).91 All parties to bar-tered compromises therefore know that these agreements are ‘tem-porary, are fixed to the particular circumstances in which they aremade, and can be reopened at the next opportunity’.92 As such,bartered compromises offer substantive, non-coercive solutions toconflicts, but they have no independent procedural compliance pull.
By contrast, inclusive compromise is reached through an integra-tive process, where concessions are not only driven by advantages andresources but by group goals and a valuation of cooperation itself.93
Inclusive compromise therefore has strong legitimizing potential.Based on the recognition of difference in micro-level negotiationsand across the macro-level polity, inclusive compromise signals non-domination and increases actors’ basic trust in the preservation oftheir core (constitutional) choices. Such recognition is crucial in ahighly divided polity where different systems of governance coexist,and it is expressed in the process through which inclusive compro-mise is reached. The generous concessions of integrative bargainingbolster actors’ trust in accommodation and the alternation betweenissue-specific minorities and majorities, while the justification,perspective-taking and empathic concern of ‘thin’ arguing improveactors’ understanding of the rationale for their collective decisions,and for each party’s positions and concerns.
Indeed, as argued earlier, an inclusive compromise is a ‘barterplus’, with recognition being the most important additional feature.94
Through the recognition of difference, inclusive compromisesconfer ‘legitimacy on the point of view of the other side’; by doing so,such agreements signal non-domination and ‘suggest a semblance ofequality between nonequals’.95 Given the demanding preconditionsof deliberation, inclusive compromise is more likely to be reachedthan consensus; yet, in the highly divided polity that is the EU, anagreement based on the recognition of difference is also normativelymore desirable than an agreement that synthesizes positions.96
91 Reh, ‘Consensus, Compromise and “Inclusive Agreement”’, pp. 188–9.92 Albert O. Hirschman, ‘Social Conflicts as Pillars of Democratic Market Society’,
Political Theory, 22: 2 (1994), pp. 203–18, p. 214.93 Bellamy, Liberalism and Pluralism, p. 102; Reh, ‘Consensus, Compromise and
“Inclusive Agreement”’, pp. 188ff.94 Margalit, On Compromise, p. 40.95 Ibid., p. 41.96 For a similar argument see Weiler, ‘In Defence of the Status Quo’.
Inclusive compromise also has more legitimizing potential than abartered agreement, because it signals the willingness to rank suc-cessful cooperation more highly than the most advantageous dealpossible. The recognition of difference is crucial in legitimizingsupranational governance. Both at the micro (or horizontal) levelbetween negotiators, and at the macro (or vertical) level betweensystems of governance, recognition gives actors basic security in thepreservation of their core choices, and therefore facilitates the accep-tance of political rules and rule.
At the micro level, recognition is conferred in the process throughwhich inclusive compromise is reached. Indeed, as argued above,such agreements are based on the greatest possible inclusion of allparties’ interests, values and beliefs. Based on a logic of cooperation,inclusive compromises are built through mutual accommodation.Struck in a process of integrative bargaining, they require mutual andgenerous concessions, painful even for the stronger side. Inclusivecompromise, therefore, calls for ‘a measure of sacrifice’,97 with allsides ‘deliberately decreasing [their] share compared to possibleagreements that [they] might have extracted’.98 Sacrifices made bythe strongest negotiators – benefiting either from a permanentadvantage due to material capabilities, or from an issue-specificadvantage due to asymmetrical preferences and exit options – sendclear legitimizing signals: of non-domination, of ‘commitment tocooperation rather than competition’,99 and of the possibility to trustin reciprocity. Decision-making in the EU’s Council of Ministerscan illustrate the premium placed on accommodation and non-domination in supranational governance: even where national rep-resentatives could decide by qualified majority, in 75 to 80 per cent ofcases they refrain from voting and, thus, from outvoting individualmember states or groups of countries.100
The willingness to ‘sacrifice’ is built in the process of ‘thin’arguing, which encourages actors ‘to express their hopes andfears and to listen to one another’s concerns, yet not lose track of real
97 Margalit, On Compromise, p. 41.98 Ibid., p. 43.99 Ibid.
100 Fiona Hayes-Renshaw, Wim van Aken and Helen Wallace, ‘When and Why theCouncil of Ministers Votes Explicitly’, Journal of Common Market Studies, 44: 1 (2006),pp. 161–94, at p. 163; see also Heisenberg, ‘The Institution of “Consensus”’.
differences’.101 This process requires constant communication betweenactors about their grounds for (in addition to their positions on) theconflict; actors justify their demands and give reasons for their claimsso as to make their co-negotiators understand these demands andclaims from their points of view. Justifications can be purely self-regarding (e.g. when actors invoke the domestic political repercus-sions of a particular EU regulation). Yet, where communication isgeared towards increasing all actors’ understanding of the collectivedecision, rather than towards maximizing individual gains, even self-regarding arguments must be moderated and presented ‘at a certainlevel of generality and in ways that appeal to a shareable norm ofjustice or interest’.102 In the EU, ‘thin’ arguing dominates wherevermember states’ representatives negotiate, be this in everyday or con-stitutional decision-making. Their interaction is played out in tours detable, during which positions are stated, explained and justifiedrepeatedly; these are followed up by ever more inclusive, accommo-dating and, accordingly, ever more complex legal and political texts.
When arguing ‘thinly’, actors build up a willingness to make andreciprocate painful concessions through two interpersonal mecha-nisms: cognitively, they take each other’s perspective, imagining ‘theeffect of the situation on the other, given his or her needs anddesires’;103 emotionally, they express empathic concern, as ‘an other-oriented emotional response elicited by and congruent with theperceived welfare of someone else’.104 By reducing ‘egocentric per-ceptions of fairness’,105 perspective-taking and empathic concern canlead actors to moderate self-regarding arguments and claims; theycan also facilitate the search for integrative, efficient but hiddensolutions.106 Yet, perspective-taking and empathic concern can domore: actors confer legitimacy on each other’s points of view bysignalling understanding and appreciation; they openly recognize
101 Batson and Ahmad, ‘Using Empathy’, p. 149; emphasis added.102 Bellamy, Liberalism and Pluralism, p. 106.103 Batson and Ahmad, ‘Using Empathy’, p. 145.104 Ibid., pp. 145–6; see also Adam D. Galinsky, William W. Maddux, Debra Gilin
and Judith B. White, ‘Why it Pays to Get Inside the Head of Your Opponent: TheDifferential Effects of Perspective Taking and Empathy in Negotiations’, PsychologicalScience, 19: 4 (2008), pp. 378–84; Michael Morrell, Empathy and Democracy: Thinking,Feeling and Deliberation, University Park, Pennsylvania University Press, 2010.
105 Galinsky et al., ‘Why it Pays’, p. 379.106 Ibid., p. 379I and II.
different positions and their underlying reasons; and they demon-strate a willingness to cooperate in the face of such difference. Assuch, perspective-taking and empathic concern can increase parties’‘satisfaction with the negotiation process’.107
In sum, having one’s position listened to, considered and empa-thized with in a decision-making process can make the decisionoutcome more justifiable and, hence, more acceptable even to theparty that had to concede most generously.108 The recognitionexpressed in this process, combined with the greatest possible accom-modation of all parties’ values, interests and beliefs, can increaseactors’ basic security in the preservation of their core choices. Inaddition, the fact that the concessions made for an inclusive compro-mise are mutual and potentially painful even for the strongest sidemakes being part of a losing minority more palatable: actors knowthat the losing minority is issue specific rather than systemic, and thatthey can trust in the reciprocal alternation between issue-specificminorities and majorities, even where such alternations require ‘sac-rifice’ from the stronger side. Without the preconditions for majori-tarianism, recognition and mutual accommodation can thus increasethe normative justifiability – and, hence, the acceptance – of politicaldecisions.
Yet, the recognition of difference and mutual accommodation notonly work between negotiators at the supranational level: they areequally important to increase the acceptance of supranational gover-nance by citizens at the domestic level. As argued above, one condi-tion for legitimacy is the justifiability of political rule based on acongruence between societal values and their structural realization.Citizens affiliate with a set of core values, balanced and expressed intheir polities’ structures and rights; this balance varies across EUmember states, and citizens’ affiliation with the respective balancematters crucially for domestic legitimacy.109 This means, in turn, thatcitizens’ basic trust in the preservation of their member states’ coreconstitutional choices must be preserved. Hence, inclusive compro-mise has a strong legitimizing potential at the macro level too, whereit works through constitutional compatibility. Instead of striving forsynthesis, and instead of attempting domination based on bargaining
107 Ibid., p. 383II.108 Morrell, Empathy and Democracy, p. 16.109 Bolleyer and Reh, ‘EU Legitimacy Revisited’.
strength, here, too, inclusive compromise expressly recognizes theEU as ‘a union among distinct peoples, distinct political identities,distinct political communities’.110 Inclusive compromise thus assumesthat core constitutional choice is preserved at the domestic level, andthat different choices coexist across the European polity. Such con-stitutional compatibility is not only fostered by the EU’s functionalrestriction; institutionally, it is preserved in opt-outs for individualmember states from specific policy areas (as is the case for matters ofjustice and home affairs for the UK), protocols hedging the domesticapplication of norms or rules (as done by the Protocol on the Appli-cation of the Charter of Fundamental Rights for Poland and theUnited Kingdom), or provisions of flexible integration through theenhanced cooperation of a group of member states (as foreseen inTitle IV in the Treaty on European Union).
THE LIMITS OF INCLUSIVE COMPROMISE
So far, I have made the following arguments. First, given its divided,multilevel and functionally restricted nature, the EU cannot rely onestablished mechanisms of legitimation. Second, inclusive compro-mise differs systematically from bartered agreement with regard tothe types of concessions required, the degree of (non-)coercion, andthe transformative potential of the negotiation process. These differ-ences stem from the process through which inclusive compromise isreached – a combination of integrative bargaining and ‘thin’ arguing– which gives such agreements procedural as well as substantivecompliance pull. Third, inclusive compromise has the potential tolegitimize supranational governance more widely: recognition asexpressed in mutual, generous concessions as well as communicationcharacterized by justification, perspective-taking and empathicconcern builds trust in non-domination and diffuse reciprocity andbolsters actors’ basic confidence in the preservation of their core(constitutional) choices. Compensating for the lacking precon-ditions of fully fledged competitive democracy, the reliance on inclu-sive compromise can thus do crucial legitimizing work at the microand macro level in the highly divided polity that is the EU. Given thislegitimizing potential of inclusive compromise, I will, next, suggest
110 Weiler, ‘In Defence of the Status Quo’, p. 20.
that the limits of reaching such agreements partly define the moregeneral limits of cooperation between EU member states. In whatfollows, I will outline two such limits.
As argued above, the EU is, first and foremost, an arena for thegeneration of binding rules beyond the nation-state. The EU is also amultilevel polity and therefore dependent on the domestic imple-mentation of its rules. Hence, the acceptance of supranational rulehinges on the legitimacy of the EU’s member states themselves.111
Each member state will, in turn, draw legitimacy from its particularconstitutional choice of ‘fundamental values’,112 and, more specifi-cally, from how the triad of citizens’ civil, political and social rights isbalanced.113 These rights and their configuration are closely relatedto the justifiability of political rule across the EU’s member states.
If the EU is dependent on the legitimacy of its member states; ifcitizens across political systems need to be secure about the preser-vation of their core choices in order to accept political rule; and if therecognition of difference through inclusive compromise bolsterssuch security, then the transfer of both policy competences andindividual rights to the supranational level has a clear substantivelimit: legitimate rule-making beyond the state must not underminelegitimate rule-making within the state.114 Otherwise, supranationalcooperation not only risks challenging a specific but crucial facetbehind the acceptance of political rule at the domestic level, namelycitizens’ affiliation with a balanced set of fundamental values andtheir structural realization. What is more, instead of acknowledgingand respecting the difference115 expressed in domestic constitutionalchoice, supranational cooperation would expressly challenge suchchoice and, as such, undermine the legitimizing potential of inclusivecompromise in a divided and functionally restricted polity. Anyleeway in adding competences and rights at the supranational levelmust therefore respect one limit: it must be compatible with national
111 Scharpf, ‘Reflections on Multilevel Legitimacy’; Scharpf, ‘Legitimacy in theMultilevel European Polity’.
112 Weiler, ‘In Defence of the Status Quo’, p. 15.113 Thomas H. Marshall, ‘Citizenship and Social Class’, in Thomas H. Marshall and
Tom Bottomore, Citizenship and Social Class, London, Pluto Press, 1992.114 Bellamy, ‘The Liberty of the Moderns’; Scharpf, ‘Reflections on Multilevel
Legitimacy’; Scharpf, ‘Legitimacy in the Multilevel European Polity’; Bolleyer and Reh,‘EU Legitimacy Revisited’.
115 Weiler, ‘In Defence of the Status Quo’, p. 19.
constitutional choice, and such compatibility must be recogniz-able.116 Otherwise, further integration risks undermining the domes-tic balance of citizens’ civil, political and social rights, with thesystem’s normative justifiability accordingly challenged at both thenational and supranational level.
Even where constitutional compatibility is preserved at the macrolevel, there are issue-specific limits to the possibility of integrativebargaining at the micro level. Indeed, mutual concessions – includ-ing those by the ‘conventionally strong side’ to the ‘conventionallyweak side’117 – will be granted more easily on some issues than onothers. Scholars have argued that it is easier to reach a compromiseon distributive issues, or on what Hirschman calls ‘more or less’ typesof conflict, than on ideological issues, or on what Hirschman calls‘either/or’ types of conflict.118 On the former, the difference can besplit, while the latter may involve ‘clashes between incommensurableidentities, world views or types of claim’.119 In the EU more specifi-cally, the readiness to concede mutually and generously is cruciallydependent on who bears the costs of an agreement (at the microlevel) or of further integration (at the macro level). The mutualconcessions of an inclusive compromise are granted more easilyunder two conditions.
First, where actors try to solve distributive or ‘more or less’ con-flicts, mutual concessions will be granted more readily and will havea stronger legitimizing potential where the costs of agreement aredispersed rather than concentrated, and where these costs are dis-persed across rather than within national boundaries. Indeed, thebearing of such costs signals a willingness to make mutual conces-sions by the greatest possible number of actors and cuts across thepredominant cleavage of the European polity. In turn, inclusive com-promise will be more difficult to achieve where the costs of agree-ment are concentrated within national boundaries. Unproblematicin a majoritarian system, the concessions required – costly for a smallgroup of actors, minimally painful for the large majority – come closeto the unilateral ‘sacrifices’ that are so normatively problematic in the
116 Bolleyer and Reh, ‘EU Legitimacy Revisited’.117 Margalit, On Compromise, p. 49.118 Hirschman, ‘Social Conflicts as Pillars’; see also Andeweg, ‘Consociational
Democracy’, pp. 511 and 530.119 Bellamy, Liberalism and Pluralism, p. 103; Margalit, On Compromise, pp. 48ff.
divided polity that is the EU, and that are unable to serve the widersocial function of accommodation that is crucial to legitimize supra-national governance.
Second, where actors try to solve ideological or ‘either/or’ con-flicts, mutual concessions will be more difficult to grant. However,accommodation is possible where the costs of agreement can beborne by the supranational system rather than by one or severalmember states or by a group of actors within a member state. Thereare different procedural mechanisms for achieving such ‘systemicaccommodation’, including member states’ constitutionally guaran-teed opt-outs from specific policy areas, protocols allowing fornational exemptions from the application of supranational norms, orcloser cooperation between a group of member states. Such systemiccompensation expressly recognizes actors’ concerns in cases of ideo-logical difference, without upsetting domestic constitutional choiceand without burdening individual states with the costs of agreement.Yet, this mechanism has a clear limit: systemic accommodation is onlypossible where it does not undermine the Union’s constitutionalfoundations; therefore, it is not an option where the functioning ofthe EU’s institutional framework or single market are concerned.
In sum, the limits to inclusive compromise are grounded in itsdefining feature: the recognition of difference, expressed in thegranting of mutual concessions. At the macro level, the limits ofcooperation lie in the compatibility between the supranational andthe diverse national configurations of citizens’ civil, political andsocial rights. At the micro level, issue-specific limits are grounded inthe dispersal of costs across rather than within national boundaries(where conflict is distributive), and in the possibility of systemicaccommodation (where conflict is ideological).
CONCLUSION
This article started from the observation that compromise is a ubiq-uitous yet under-theorized and under-studied feature of Europeanintegration, and attempted to shed light on the concept of compro-mise, on the role that compromise can play in legitimizing supra-national governance and on the limits to reaching compromise in EUdecision-making and across the European polity. The article arguedthat, given its divided, multilevel and functionally restricted nature,
the EU is highly dependent on the legitimizing potential of compro-mise and of inclusive compromise more specifically. Inclusive com-promise is distinguished from bartered agreement by the explicitrecognition of different negotiation positions (at the micro level)and of diverse domestic constitutional choice (at the macro level); bymutual and generous concessions that can be painful even for thestronger side; and by a process of ‘thin’ arguing, driven by justifica-tion, perspective-taking and empathic concern.
The article argued that the legitimizing potential of inclusive com-promise is threefold. First, the recognition of difference in micro-level negotiations and across the macro-level polity increases actors’security in the preservation of their core choices; second, mutual andgenerous concessions, in combination with perspective-taking andempathic concern, increase actors’ trust in accommodation, reci-procity and the alternation between issue-specific minorities andmajorities; third, ‘thin’ arguing improves – and potentially trans-forms – actors’ understanding of the grounds for conflict and of thereasons behind the collective decision reached. Through thesemechanisms, inclusive compromise can contribute to responding tothe challenges of legitimizing the EU as a divided, multilevel andfunctionally restricted polity. Given the legitimizing potential ofinclusive compromise, the article concluded by identifying two limitsto reaching such agreements: the possibility of accommodation at themicro or horizontal level of governance, and the need for constitu-tional compatibility at the macro or vertical level of governance. Theissue-specific limits to inclusive compromise depend on whether coreconstitutional choice is left intact at the national level; on whetherthe costs of supranational agreement are dispersed across as well aswithin member states; and on whether ideological conflict can beaccommodated by systemic compensation rather than by individualconcessions.
This article attempted to get closer to the under-studied conceptof compromise and aimed to improve our understanding of theneglected potential of compromise in legitimizing supranational gov-ernance. In doing so, the article has raised two main questions forfollow-up research at the intersection of the empirical and the nor-mative study of European integration. First, in order to understandthe legitimizing potential of inclusive compromise more fully, weneed to explore how exactly recognition, perspective-taking andempathic concern play out in micro-level negotiations, and to
investigate whether the process of ‘thin’ arguing does, indeed,increase actors’ willingness to concede and bolsters the perceivedlegitimacy of supranational decisions. Second, in order to grasp thelimits of inclusive compromise more fully, we need to investigatesystematically whether, where and how supranational rule potentiallyupsets core domestic choice, and ask how constitutional compatibilitycan be guaranteed across levels in the European polity.
