MAX WEBER REDIVIVUS

One possible source of their dissatisfaction, is their own disillusionment with integration processes; a disillusionment, born not of any crude euro-scepticism, but with irritation at the arrogance of a European convention process, which promised establishment of a 'citizen's Europe' with enhanced involvement and participation (p. 118) for individual Europeans, but was itself perhaps one of the worst historical examples of the 'counter-majoritarian paradox' (Ackerman, 1984). The Philadelphia Convention was also an elitist project, and the US Constitution was knowingly imposed upon a populace, which had played no part in its elaboration and which had little chance to assess its benefits and/or drawbacks. The twenty-first century Europe, however, is not eighteenth century America, and the political inconsistency and contradiction that marks the constituting of the many by the few is surely now, in an age of mass education and communication, as obvious and intense as to make the convention method unsustainable. 'We the people' is, perhaps, a phrase that will return to haunt its progenitors. Nonetheless, Olsen's analysis helps to combat this disquiet, which for many had taken the form of complete disengagement with Europe and its doings: they may well be persuaded by this book to re-engage with the European project.

By the same token, then, no disquiet will be caused by Olsen's scholarship; on the contrary, his measured reading of academic reports on the Convention (pp. 41–4), which contrasts upbeat claims about the deliberative qualities demonstrated by Convention members (Fossum, 2004) with less euphoric estimations of how far deliberation might be proven to have penetrated popular minds (Petersson et al, 2003), underlines the immense analytical qualities of this study. We can combat the hopeless and helpless optimism of a naïve pro-constitutive lobby, and, at the same time, avoid inextricable capture of the Union within the environmental determinism of economic liberalisation. However, this effort must be founded in precise and clear-headed empirical understandings of the workings of European institutions, a cold realisation and identification of the limits to politically reform action (and its 'bounded rationalities') and a pragmatic approach to the maintenance of institutional trust under conditions of institutional change.

However, if Olsen's scholarship is not flawed, his constant exhortations that more research must be undertaken to identify the exact workings of European institutions is an indication that the scholarship of the 'discipline', upon which he draws, is compromised. Above all, in relation both to the convention process and the workings of the Open Method of Coordination (OMC), both of which have been the subject of so many studies by European lawyers and political scientists, the call for even more research is an implicit indication of the unsatisfactory nature of the much-existing European integration scholarship. 'Deliberative' studies on the European Convention are fine examples of the basic problem: open-ended and contested integration processes inevitably awake a desire among many European academics (Europeanists by 'calling') to legitimate the European telos, to find means, not just of making order of chaos, but of justifying that order and enhancing it with reference to deep normative structures, to which European citizens will be expected (and required) to give their allegiance. European scholarship may thus be argued to be the Federalist Papers writ large, an implicit project to persuade Europeans of the 'rightness' of a counter-majoritarian integration project: empirical considerations are accordingly inexorably intertwined with normative preferences, with the result that European academia sees what it wants to see, rather than what is there. In the case of study of the Convention, this has led to the curious circumstance that empirical claims are made for its deliberative quality; claims

' ... the political inconsistency and contradiction which marks the constituting of the many by the few is surely nowy so obvious and intense as to make the convention method unsustainable'

that add up to a constitutional rhetoric in praise of a deliberatively legitimated Europe, but which nonetheless surely also fade upon even the briefest examination of part three of the draft constitutional treaty, which, with its piecemeal (and largely economically liberalising) proposed changes to carefully established Treaty law was just as surely in the grips of the unrestrained interests that more commonly characterise environmental determinism (Everson, 2007).

As noted, Olsen is aware of shortcomings in the existing literature on European integration and the research agenda laid down in this book is, in large part, an effort to prompt more and better research in order to overcome them. However, in one vital respect, Olsen himself falls victim to the current failings within European integration research as his pivotal effort to suggest how peaceful and incremental institutional change within Europe might be steered through 'legal and living institutions' (pp. 243–4), is inexorably undermined by the poverty of existing European efforts to address the age-old Weberian paradox of formal versus substantive (material) justice; a poverty, which, with its confusion of normative goals and empirical research agendas, again pre-empts necessary consideration of the serious dangers inherent to 'institutionalised administrative governance', both at European level and beyond.

One of the most compelling and persuasive passages within Political Order is, thus, Olsen's defence of traditional, Weberian bureaucratic patterns of institutional organisation against more recent claims that efficient policy implementation would be better entrusted to 'market organisation or network organisation' (p. 137). The impetus for this defence is, once again, the conservative, institutionalist one: '[I]nstitutionalisation (rather than informal markets or net-works) strengthens the borders around sets of activities. It buffers external turbulence and provides a transformative capacity' (p. 230). Conflict is lessened and reform facilitated; at the same time, however, specifically Weberian institutions, founded within formal rationalities, with their clear rules of conduct, merit-based staffing structures and democratic 'blindness' to the wealth and other resources of citizens (p. 146–7), also reinforce the trust of citizens in their own governing structures during period of potentially divisive and conflict-creating reform. So, or at least, Olsen argues, European integration has, in part, been successful precisely because it is also bounded by formal rules.

At the same time, however, Olsen is not blind to the problems inherent within formally rational institutions. Excess of rules, and rule-bounded behaviour was recognised by Max Weber to pose dangers of institutional dehumanisation and a lack of institutional responsiveness to the societal settings in which institutions are embedded. In Olsen's vision of incremental European polity evolution, rule excess and institutional entrenchment are likewise potential obstacles to fiduciary constitutional gardening and change-inducing processes of 'experiential learning, competitive selection, contact and diffusion, or turnover and regeneration' (p. 71). If political leaders are to play their, necessarily limited, but vital role of fiduciary constitutional gardening, using

'the success of Olsen's vision of peaceful and cumulative polity evolution within Europe rests wholly upon Europe's ability to find a solution to the Weber's paradox'

their distanced oversight to spot and promote individual instances of institutional adaptation to social change, then institutions must remain amenable to human intervention and change. Equally, reform-enabling processes such as experiential learning, or contact and diffusion, are likewise predicated on the ability of institutions to escape their own bounded frameworks of formal rationality, in order to learn, to make contact and to ensure diffusion of experience.

In sum, then, the success of Olsen's vision of peaceful and cumulative polity evolution within Europe rests wholly upon Europe's ability to find a solution to the Weberian paradox, to defend its institutions both from the critique that they are too bureaucratic and from the critique that they are not bureaucratic enough (p. 142). As Olsen himself recognises, the roots of the paradox are deep indeed: formal guarantees for rationality and/or equality before the law would combat or reduce irrational government and feudal privilege; at the same time, 'material' (substantive) ideologies would always also be inexorably drawn to overturn formal justice and humanise government to meet the material justice demands of newly disenfranchised groups within society (industrial workers, etc.). Weber himself termed this paradox 'insoluble' (p. 142), and it is thus all the more distressing that Olsen's generally keen empirical insights fall victim to empirical complacency at precisely this point in his argument.

The general message to be found in Olsen's concluding chapter (pp. 227–51) is one that while paradoxical problems certainly exist within institutions of European governance (e.g., unresolved tensions between old public management and new public management styles), examples of successful balancing of formal and material justice and patterns of human–rational institutionalisation do exist (e.g., the ability of the ECJ to temper its decisions in order to circumnavigate political conflict), such that we may conclude that processes of institutional and political gardening can and will be able to contain the Weberian paradox at European level (and beyond). In other words, the joint institutions of a European administrative space can be both 'formal legal institutions' and 'living institutions', furnishing us both with conflict-bounding rationality and societal responsiveness. This message is, nonetheless, wholly misplaced; meanwhile, Olsen's complacency is one more highly unfortunate distraction from the highly uncomfortable empirical reality that our executives and administrations at European and global level are currently evolving dual features of excessive informality and excessive formality, which threaten to unravel the whole of the enlightenment achievement.

Olsen's complacency lies in his failure to question European integration studies. Sadly, European lawyers are the most to blame for shortcomings. Olsen thus builds up his own faith in the ability of European institutions to escape excessive formalism upon warnings from European lawyers about the dangers of 'excessive legalism' (p. 176), as well as from disturbing legal support for de-legalisation (or national non-compliance) as a 'safety-valve' (pp. 246–7). At first glance, this is a simple restatement of concerns about bureaucratic excess. Nonetheless, such bald and ill-thought through assertions trail false, or at least highly questionable empirical findings in their wake; just as Olsen's identified implication 'that both reformers and scholars have to go beyond the judicial realm', has not given rise to sensible and considered evaluation of empirical realities beyond formal law, but has instead unleashed unpalatable and dangerous wholesale approbation of the destruction of the rule of law, most particularly in relation to European law's blind representation of the workings of the OMC as 'deliberative', and therefore 'democratically legitimate', in nature (Joerges, 2007).

Perhaps, the greatest irony of the European legal failure to halt, or even to recognise excessive informalism and destruction of the rule of law, is the fact that, of all disciplines, law (at national level) has historically been the most attuned to the need to overcome the Weberian paradox in a normatively and pragmatically sustainable manner. Above all, large-scale failings in the welfare state of the 1980s (the collapse of political order founded in substantive rationality), and readily apparent shortcomings in a scheme of interventionist law, unleashed a flurry of activity among the modern greats of legal theory and initiated a programme of reform of the rule of law through notions such as procedural law and reflexive law (Joerges, 1996). Legal reflexivity and proceduralism sought to enhance the societal responsiveness of formal legal systems; at the same time, however, neither movement was an abrogation of the rule of law or of the vital legal responsibility, not only to give political/societal actors voice but also to hold them to account and ensure public trust in policy-creation and implementation. What is OMC by contrast? Olsen himself repeatedly cites one case study highlighting the limited functionality of OMC (pp. 35, 66, 124–5, 131). Perhaps the time has come for him now to draw on other existing studies demonstrating the lack of representation, the lack of transparency, the lack of rationality and the potential for interest-led political abuse that is inherent, not just within OMC, but also within other ever-increasing instances (within Europe and beyond) of excessive administrative informalisation beyond a broken rule of law (Majone, 2005).

By the reverse token, however, institutionalist complacency about the death of the rule of law is surely only matched within Political Order by blindness to the urgent need to address paradoxical and ever-growing dangers of excessive formalisation. Weber recognised the danger that bureaucracy might become inhuman. Olsen mirrors this concern, underlying that 'rationality and justice [should be] characteristics of the [bureaucratic] procedures followed to reach an outcome and not the outcome itself' (p. 139). Michel Foucault, in his critique of Weber went much further: as recent, inspiring and challenging, theological debate has reminded us (Milbank, 2007), Foucault also recognised that the enlightenment, with its dual impulse to destroy God and create 'universal' material order, left us with an enduring and destructive dilemma. Seeking to find material universalism in the sovereignty of the constituted polity, we also needed to create an abstract executive sovereign with full administrative powers of implementation to give voice to our material sovereignty. However, the abstract sovereign was inevitably also to be the enduring enemy of its material progenitor and would, in a process of 'bio-politics', eat away at its material roots in order to redefine the constituted polity and re-cast it in its own image. The rational formality of Weberian organisation, though designed to protect the polity from arbitrary exercise of sovereign power, would nonetheless destroy the humanity of the material polity it served.

A nightmare vision indeed, akin to Carl Schmitt's 'dark executive', and surely nothing to do with European or global institutions. Sadly, we cannot be so sanguine. The evolution of formally rational institutions beyond politically bounded nation states, and their interlocking at European and global level, has privileged formal–rational processes of, say, 'scientification', and a universal language of bureaucratic deliberation, over the political aspirations of a material world. 'Bio-politics' is not simply the refined imagining of a deconstructivist theorist: it is empirically visible within, for example, global regimes of the regulation of genetically modified organisms (GMOs); regimes within which risk managers (such as the European Commission or WTO Panels) are obliged, in the absence of effective political debate or agreement, to make decisions, which impact on the very building blocks of life, not with reference to ethics or the values of the material polity, but rather within the determinative logics of bureaucratic and scientific rationality (Van Asselt et al, forthcoming).

Olsen's notion of 'administrative space' is perhaps a useful analytical tool to evaluate and consider the interlocking institutional architecture, which is establishing itself beyond and between nation states, supra-national communities and a global governance framework. However, Olsen's desire to deploy the study of European institutions as a means to identify 'universal' lessons for incremental institutional change, which will dampen conflict and secure global political order, is perhaps also his downfall. The discipline of European integration studies is often ideologically comprised, such that its empirical findings are sometimes tainted by normative aspirations to legitimise the European Union. Equally, it remains curiously blind to lessons already learned at national level. Olsen may be correct in his assumption that incremental institutional change is a power that will secure future political order. In the meantime, however, we must, as a matter of extreme urgency, combat fatal conflation of fact with norms, and open our eyes to unpalatable empirical realities: excessive informalisation and excessive formalisation are not forces that negate or hold one another in equilibrium. They are, instead, equally destructive environmental powers, which, acting cumulatively, have the potential to destroy all of our notions of political order. Equally, we cannot simply wait for the empirical evidence to roll in: we must also now re-employ and re-invigorate existing theoretical attempts to at last overcome the Weberian paradox.

THE CLASH OF UNIVERSALISMS

The complacency at the heart of Political Order, and its failure to take a growing crisis in global executive–administrative governance seriously, is, as noted, in large part a result of shortcoming within existing research on European integration. Nonetheless, as also noted, in its worthy efforts to circumnavigate conflict-inducing political and constitutional upheaval, as well as its aspiration to ensure that political actors are not simply pawns in the face of the environmental forces of history, the institutionalist approach is itself also a highly 'conservative' one: paradoxically, change and reform is facilitated through institutional and philosophical continuity. Certainly, the European Union may be the stage for unprecedented alterations in the constitution of modern governments and political communities; at the same time, however, change is contained within and made manageably by the (formal) institutional structures and 'universal' philosophy of the enlightenment ideal. Again and again, Olsen's appeal is to 'citizenship' and the allegiance-inducing qualities of 'constitutional patriotism' or the 'institutional arrangements [within which] European citizens are learning to become more committed to common

' ... European integration study is often ideologically comprised, such that its empirical findings are ... tainted by normative aspirations to legitimise the European Union'

rules, codes of civic virtue and concepts of common good' (p. 132).

With this, the revolutions promised by the institutionalist approach are pragmatic rather than momentous in nature. Pragmatically, incremental revolution is thus necessarily also philosophically incoherent: Olsen notes that our ability to secure 'deliberative democracy and communicative rationality 'outside nation-states cemented together by a national identity and solidarity' has been doubted (p. 132); equally, however, he also notes that such 'incompletely theorized agreements are an important source of successful constitutionalism and social stability: [C]itizens can agree on constitutional practices and rights even when they cannot agree on constitutional theories' (p. 212, drawing on Cass Sunstein). The message is clear: comprehensive political or constitutional ideals are dangerous and potentially destructive; stability derives from institutional continuity and philosophical incoherence.

Is this conservatism, however, also an innate source of complacency within institutionalist approaches and an indication of an unwise refusal to be prepared to engage in the comprehensive reforms of institutions and philosophies that, may, on occasions be necessary in the face of historical or environmental forces? Possibly, Olsen takes care to distinguish the institutionalist approach from, say, Burke's approval of 'antiquarianism' within the English Constitution, and his consequent faith in the ability of a hidden hand of history and societal development to effect necessary organic constitutional growth. At the same time, however, Olsen's counter-claim that (conservative) institutionalism and (bounded) constitutional gardening can allow us to intervene within and take control of historical forces (pp. 205–7), is also somewhat undermined by his too ready acceptance of T.H.Marshall's account of the piecemeal but supposedly peaceful and controlled reconstitution of the antiquarian institutions of UK governance as a modern welfare state (p. 14). In a stark contrast, it may be argued that the UK's post-1945 constitutional adherence to old institutions of 'mixed governance' merely hid a highly unstable assault on the sovereign power by particularist class interests, with the consequence that the 'universal' welfare state was easily and brutally dismantled by competing class interests scarcely a generation later (Everson, 2003). Historical forces do exist and perhaps, on occasions, also present us with historical necessities, which can only be mastered through comprehensive reform and re-philosophising.

Seen in this light, a final, very tentative critique of Olsen is that he may well place too great a faith in the institutional stability and sustainability of the 'universal' civic virtues of the enlightenment model of citizenship, deliberation and communicative rationality. The critique is tentative for a good reason. If we are talking of historical necessity and the mastering of historical forces, our current epoch presents us with an unparalleled challenge: even 'the master' of historical identification has now conceded that he does not have the faintest idea what will happen next within global history (Hobsbawm, 2007). However, and notwithstanding Hobsbawm's droll observation that, for him at least, this does not matter, since he will not be around to see it

'The message is clear: comprehensive political ideals are dangerous and potentially destructive; stability derives from institutional continuity and philosophical incoherence'

(Guardian, 7 July 2007), it is not sure whether this is a luxury that we can generally allow ourselves. Accordingly perhaps, we should now seek to identify and contain the currently most potent of conflict-engendering historical forces: the clash of 'universalisms'.

Olsen himself recognises the issue: in his discussion on the concept of 'Europeanisation', and more particularly on a category of Europeanisation encompassing the impacts of Europeanisation on a wider global world, he notes that European solutions may not always be the best for everyone and that, in addition to attending to the 'resources mobilized for promoting European forms in other part of the world', we must also 'attend to the resources available for non-Europeans to resist unattractive forms' (p. 86). An undoubted impetus for the integration of European nation states has been their common founding within the material universalism of the enlightenment ideal. If our systems of government are universal, by the same logical and practice-inducing token, they surely must extend (or be extended) beyond our national boundaries. Yet, enlightenment universalism is, just as surely, not the only 'universalism', and the story of interlocking national, supra-national and global institutions is also one of the confrontation between the political universalism of a material enlightenment, the universalisms of religions and cultures, the (paradoxical) universalism of (post-modern) individualism, the universalisms of science and markets and even the 'earthy' universalism of indigenous peoples.

In this world of clashing and incommensurate universalisms, which is, vitally, also present within the European Union, the reach of the civic and civilising institutions and virtues of the enlightenment is limited: they cannot mediate between conflicting universalisms which, on occasions, reject them. Seen in this light, the procedural and reflexive institutions of mediation, which we might seek to deploy to secure peaceful order at local and global level, must be hollowed out of all substance (both formal and material); meanwhile, the civilising virtue of universality in diversity must be urgently sought, not only, as Olsen intimates, in daily practices of interchange, but also within 'comprehensive' philosophies, which sustain rather than smother diversity – philosophical ideals, such as respect for the 'other'.

References

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2. Everson, M. (2003) '"Subjects" or "Citizens" of "Erewhon?" Law and non-law in the development of a "British Citizenship"', Citizenship Studies 7(1): 57–84. | Article |
3. Everson, M. (2007) 'Is it just me, or is there an Elephant in the Room?' European Law Journal 13(1): 136–145. | Article |
4. Fossum, J.E. (2004) 'Still a Union of Deep Diversity? The Convention and the Constitution of Europe', in E.O. Eriksen, J.E. Fossum and A.J. Menéndez (eds.) Developing a Constitution for Europe, London: Routledge, pp. 226–247.
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6. Joerges, C. (1996) 'Taking the law seriously: on political science and the role of law in the process of integration', European Law Journal 2: 105–135.
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8. Majone, G. (2005) Dilemmas of European Integration: The Ambiguities & Pitfalls of Integration by Stealth, Oxford: Oxford University Press.
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11. Van Asselt, M., Vos, E. and Roijaakers, H. (forthcoming) 'Rethinking the Role of Scientific Advice in Uncertain Risk Regulation', in M. Everson and E. Vos (eds.) Uncertain Risks, Routledge-UCL Press.

About the Author

Michelle Everson is Senior Lecturer at Birkbeck College, University of London, and Director of the College Research School. She has published widely on European regulatory policy and on European constitutionalism.