Contesting Austerity: On the Limits of EU Knowledge Governance

Published date01 March 2017
DOIhttp://doi.org/10.1111/jols.12018
Date01 March 2017
JOURNAL OF LAW AND SOCIETY
VOLUME 44, NUMBER 1, MARCH 2017
ISSN: 0263-323X, pp. 150±68
Contesting Austerity: On the Limits of EU Knowledge
Governance
Marija Bartl*
Lacking robust democratic foundations, EU authority is founded on
output legitimacy ± delivery of (economic) prosperity through rational
governance. Yet current austerity policies are the epitome of irrational
governance. While this volume highlights the EU's limited ability to
deliver rational output through law and legal rationality, I argue that,
without democracy, the EU cannot deliver the desired output through
knowledge and technical rationality either. In fact, embedding expert
institutions in democratic institutional settings plays a crucial epi-
stemic role, contributing to the production of more reflective, socially
inclusive knowledge. Lack of such democratic input in the EU's
knowledge production is one of the root causes of its crumbling output
legitimacy and the creation of many disenfranchised (internal) periph-
eries. Three recent challenges of Brexit, TTIP, and austerity may be
seen as attempts to reclaim the democratic responsiveness of EU
technocratic rule. However, the strategies of exit and voice have not
been available in all these cases: in the Greek tragedy, contesting
austerity ended in subjugation: a mirror image of `rational'
governance if unaided by inclusive democratic process.
150
*University of Amsterdam, Oudemanhuispoort 4±6, 1012 CN, Amsterdam,
The Netherlands
M.Bartl@uva.nl
I would like to thank Candida Leone, Ronan O'Condon, Daniela Caruso, Martijn
Hesselink, Harm Schepel, Markos Karavias, Ingo Venzke, Cristina Eckes, Mirthe Jiwa,
and Maria Weimer, as well as the participants of the `EU Law Conference 2016' at
Boston College. Any remaining errors are mine.
ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School
I. RATIONALIZING AUSTERITY
1. Austerity and legal rationality
In this volume, the contributors understand austerity as a political rationality,
or as Mattei puts it,`a rationality that is intrinsically theory and practice,
policy and pedagogy'.They are, however, very much aware that austerity is
amessy rationality. The purity of theory behind austerity is not a goal in
itself; instead, hybrid practices emerge in order to bend EU reality to theory,
and theory to EU reality, ultimately allowing for an unchecked exercise of
power in the EU.
European law has played an important role in mediating austerity.
MeneÂndez's intervention shows that EU law has certainly not been a
backstop if one were intent on controlling the powers of various EU institu-
tions or selected member states. If anything, it has been used as a tool
facilitiating the practices of austerity, while often undermining our basic
intuitions about the rule of law. Schepel's contribution demonstrates that the
Court of Justice of the European Union (CJEU) is, ironically, naturalizing
the market at the very moment when we see it failing. In its case law, the
CJEU uses positive law to read rationality and regularity into market `laws'
in order to turn those into instruments regulating the conduct of EU member
states. In his intervention, Kaupa deconstructs the alleged links between EU
law and any particular economic theory. The Treaty mandates no particular
economic theory. We choose to read such economic theory into the Treaty as
a matter of political choice.
While the contributors to this volume expose current practices of austerity
in the EU as the poster-example of the naked exercise of power, rather than
an attempt at rational governance, EU law has largely been used to enable
and rationalize these practices. Failing to protect the constitutional rule of
law (MeneÂndez), or legally constructing market rationalities in order to
attribute them regulative power (Schepel), the contributions add further
support to Kaupa's argument regarding the indeterminate character of the
EU constitution, which on its own cannot save us from sliding into collective
irrationality.
2. Austerity and technical rationality
If legal rationality does not shield us from governance turning into a pure
exercise of power, does technical knowledge perhaps perform better in
steering EU governance toward rational outcomes? Mattei, an economic
historian, offers a much needed historical perspective ± how did the theory
and practice of austerity `work' in the past? Her account is unequivocal:
whether measured by economic pe rformance or distributive imp acts,
austerity has never served us well. LoÂpez and Naho n, both economists,
give us a more contemporary account from outside Europe. They discuss
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ß2017 The Author. Journal of Law and Society ß2017 Cardiff University Law School

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