Legitimacy of Non-majoritarianism in EU and US Single-Market Governance

• In Event: Comparing Rights and Legitimacy in EU Market Governance to the United States

Abstract

Non-majoritarian institutions like independent agencies, courts and central banks play a significant role in market governance everywhere. For many scholars, however, delegation to non-majoritarian institutions requires authorization by a single, coherent demos in order to be legitimate. This view underlies many of the strongest normative critiques of the European Union, where the substantial powers of non-majoritarian institutions like the European Commission, Court of Justice, European Central Bank, and many agencies enjoy no such justification. This paper demonstrates that this common normative account relies on an unsustainable and unnecessary notion of cultural coherence as a prerequisite for legitimacy. In its place, the paper defends a notion of technical legitimacy which builds on robust claims to the common good, expertise, and appropriate non-majoritarian value inputs. To demonstrate the argument’s appeal, the paper compares the case of the EU to governance of the world’s other huge, single-market-based polity, the United States, which differs substantially from the EU in terms of cultural and political coherence. I will argue that this difference does not matter in terms of the legitimacy of their non-majoritarian institutions. The legitimacy challenges facing the EU and the US are more similar than often assumed.

Author

• Trym Nohr Fjørtoft, University of Oslo