Between Constitutionalism and Democratic Experimentalism? New Governance in the EU and the US1
| DOI | http://doi.org/10.1111/j.1468-2230.2007.00658.x |
| Published date | 01 July 2007 |
| Date | 01 July 2007 |
| Author | Michael Wilkinson |
REVIEWARTICLE
Between Constitutionalism and Democratic
Experimentalism? New Governance in the
EU and the US
1
MichaelWilkinson
n
G. DeBurca and J. Scott (eds), Law and New Governance in the EU and the US,
Oxford: Hart,20 06.
INTRODUCTION
One of the more exciting themes in‘public philosophy’ of recent times has been
the development of ‘democratic experimentalism’ and a range of related work
broadly associated with the insights of ‘new governance’.
2
Breaking out of the
sterile liberal/republican/communitarian triptych, experimentalism draws on
our latent potential for reconstructi ng and re-imagining democracy ^ both
locally, and in a variety of national, trans-, supra- and inter-national settings ^
according to the generic value of self-government. It relies also on our capacity
for learning and problem-solving in and across various formal and informal
‘publics’. This new body of work has many intriguing implications for govern-
ment and for law, from local and regional regulatory regimes all the way to the
vexed question of global justice.
3
Its recentapplicationto law and newgovernance in the EU and the US centres
on the workof Charles Sabel and severalof his collaborators.
4
Perhaps too early to
call it a‘school’,
5
democratic experimentalismhas broader resonancei n publicphi-
losophy through thework of Roberto Ungerand it leans on the earlierpragmatist
n
University of Manchester Law School.This article was written whilst adjunct Professor at Cornel l
Law School.
1 Unattributed page numbers in footnotes refer to Law and New Governance in the EU a nd the US.
2 Space precludes a comprehensive bibliographyof the development of democraticexperime ntal-
ism, also referred to as‘deliberative polyarchy’.For a couple of early and representative articles, see
C. Sabela ndJ. Cohen‘Directly-DeliberativePolyarchy’(1997) 4 European LawJournal 313^340. for
its application tothe EU and C. Sabel and M. Dorf ‘A Constitution of Democratic Experiment-
alism’(1998) 98 Columbia Law Review 267. for the US perspective.
3 See C. Sabel and J. Cohen’spowerful and persuasive piece against Nagel’s rejection of global jus-
tice:‘Extra Rempublicam,Nulla Justitia’(200 6)3 4 Philosophy and Public A¡airs 147^175.
4 Sabel’s US collaborators include Joshua Cohen, Michael Dorf and Jonathan Zeitlin.
5 Their work builds less on the philosophical than o n the political side of pragmatism. But the
importance of pragmatismform an epistemological standpoint can be felt beneath the surface. It
is closer to (Anglo-American) analytic tha n continental political philosophy or even Haberma-
sian‘transcendental pragmatism’.There is also a (relatively u nexplored)connection to Holmes and
the school of American legal realism.
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2007) 70(4)MLR 680^700
traditionexempli¢ed byJohn Dewey, in many ways its philosophical ‘godfather’.
6
Any attempt to de¢ne the basic message or core idea of experimentalism is
fraught with di⁄culty ^ a nd it should be noted that one of its motifs, in li ne with
the pragmatic tradition it allies itself to, is rejection ofan all-encompassing politi-
cal ideology or historical meta-narrative. Its working theme is illustrated in this
passage from Sabel himself:
‘Consider now a world in which sovereignty ^ legitimate political authorship ^ is
neither unitary nor personi¢ed, and politics is about addressing practical problems
. . . Inthis world, a public is simply an open group of actors . .. which constitutes
itself as such in coming to address a common problem, and reconstitutes itself as
e¡orts at problem solving rede¢ne the task at hand.The polity is the public formed
of these publics: this encompassing public is not limited to a list of functional tasks
. .. enumerated in advance, but understands its role as empowering members to
address such issues as need their combined attention.’
7
It is perhaps ironic that despite its strong and distinctively ‘North American’ £a-
vourand pedigree and its eschewal of grand European Enlightenment ideologies,
democratic experimentalism appears to resonate far more sweetly to the tune of
the putative post-statist project of European integration, than it does to the cur-
rent US constitutional ‘mega-state’ with its dominance of presidential, executive
and military power.
8
Whether such a dichotomy is more apparent than real, tran-
sitory rather than lasting, and whether we are reaching the dyi ng days of the
‘American ce ntury’ is an inte resting question, and al though not explicitly ce ntral
to the book underreview ^ a collection of essays entitled Law and New Governance
in the EU and the US, edited by Grainne de Burca and Joanne Scott ^ neither is it
entirely peripheral.
9
What is clear from this collection is that ‘democratic experimentalism’ is in£u-
encing a large and diverse numberof writers and, more intriguingly still, policy
makersi n the US and particularly in Europe, perhaps because of its ‘non-state’bias
and opportunity for £exibility in terms of drawing on the democratic potential
of multiple institutions of governance.
10
As a result it is predominantly in its
6 For a recent exploration of Dewey’s political philosophy see R. Westbrook,‘Pragmatism a nd
Democracy:Reconstructing the logic of John Dewey’s Faith’in M. Dickstein (ed.) The Revival of
Pragmatism: New Essays on SocialThought, Law and CultureDurham: (Duke University Press,1998).
7 C.Sabel and J. Cohen‘Sovereigntyand Solidarity: EU and US’in Zeitli n andTrubeck (eds) Gov-
erningWorkand Welfarein a New Economy (Oxford:OUP, 2003)362.
8 See S.Wolin’s magni¢cent collection,The Presence of the Past:Essays on the Stateand the Constitution,
in particular,‘Democracywithout the Citizen’ (Baltimore: JohnHopkins University Press,1989)
addressing it from the Regan era. It is therefore a mistaketo thin kthat this trend is born with the
post 9/11 ‘Waron Terror’; this is not to deny that it might haveaccelerated in the past years.
9 It is explicitly addressed to a degree in the chapters by Mark Tushnet and Magnette/Lacroix, see
below.
10 It is interesting that ‘newgovernance’is used in Europe with its Foucaultian connotations of ‘gov-
ernmentality’.The terminology is problematic. I use the terms ‘democratic experime ntalism’and
‘new governance’ interchangeably in this review ^ as at times do the authors ^ with complete
awareness of the dangers impliciti ndoi ngso. Democratic experimentalism is far more attractive
as an ideal term, not on lybecause it avoidsthe co nnotations of ‘governmentality’ but al so,because
as the editors note, it suggests action from‘the bottom-up’ rather than the‘top-down’. The pro-
blem of whatnew governance actually is cannot of course be overcome by way oftypological ¢at.
MichaelWilkinson
681
r2007 The Author.Journal Compilation r2007 The Modern Law ReviewLimited.
(2007) 70(4)MLR 680^700
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