Seite - 76 - in Austrian Law Journal, Band 1/2015

ALJ 1/2015 Alexander Somek 76 for contemporary authoritarian liberalism. The latter arises within a post-democratic situation and it is not co-extensive with it. Triangulating the phenomenon requires focussing on a certain aspect of Habermas’ cycle of power, which generally suggests that the propulsion of administra- tive and economic “self-programming” can be halted through legislative norms. Many of these norms, however, need to make room for systemic operations, lest they run the risk of remaining ineffectual.70 Constraining and directing while giving room is, however, the task of delegation. What comes into perspective, then, are chains of delegation. It is submitted, therefore, that a concept of authoritarian rule that is faithful to Heller’s intuitions71 can be developed—sit venia verbo: dialectically—from the concept of delegation. V. Karlsruhe’s view of democratic legitimacy When it comes to this, it is helpful to begin with a Panglossian view of delegation. From this angle, the Union is perceived through the lens of multilevel constitutionalism. Every move that is made by Union institutions is deemed to be backed up by delegations.72 The people delegate power to an international organisation pursuant to their constitution. International agreements, such as the Union Treaties, provide the organisation with the power to adopt legislative acts, which in turn normatively underpin implementing acts. This process is democratic throughout because democratic legitimacy is transferred from one level to the next. Just like Nozick’s notorious “justice in transfer” is allegedly “justice-preserving”,73 delegation is supposed to transmit democratic legit- imacy without a loss.74 In a similar vein, a straightforward defence of the democratic legitimacy of the Union in its current form would point out that the institutions of both lopsided intergovernmentalism and suprana- tional fiscal discipline avail of a democratic pedigree, however “indirect” it might be.75 The Com- mission is appointed with the consent of the European Parliament to which it also remains ac- countable (Article 17[8] EU Treaty, Article 234 FEU Treaty). The IMF is accountable to the govern- ments of its member countries. Governments, at the end of the day, are created in the wake of elections and remain responsible to their folks. The ECB, even though independent, is based upon an international agreement to which the Member States of the EU consented pursuant to their own constitutional procedures. International agreements are not written in stone. They can be altered. 70 This is an old staple of the debate over “juridification”. See GUNTHER TEUBNER, ‘VERRECHTLICHUNG’ IN VERRECHTLICHUNG VON WIRTSCHAFT, ARBEIT UND SOZIALER SOLIDARITÄT 289–343 (F. Kübler ed, Suhrkamp 1986). 71 The author has made a similar argument before. See his ‘Authoritarian Constitutionalism: Austrian Constitutional Doctrine 1933 to 1938 and Its Legacy’ In THE DARKER LEGACIES OF LAW IN EUROPE. THE SHADOW OF NATIONAL SOCIALISM AND FASCISM OVER EUROPE AND ITS LEGAL TRADITIONS 361, 383 (C. Joerges & Navraj Singh Ghaleigh eds, Hart, 2003). 72 See Ingolf Pernice, Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited, 36 COMMON MARKET LAW REVIEW, 1999, at 703. 73 See ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (Basic Books, 1973). 74 The text below cannot be as nuanced as the more sophisticated apology of the Union provided by Andrew Moravcsik, Is there a “Democratic Deficit” in World Politics? A Framework for Analysis, 39 GOVERNMENT AND OPPOSITION, 2004, at 336. 75 It should be noted that this perspective on delegation is different from the paradigm of functionalist agency theory. Functionalist agency theory takes it for granted that principals have preferences and that they delegate powers to agents in order to see this preferences satisfied under conditions of high transaction costs and epis- temic uncertainty. See, generally, ROBERT O. KEOHANE, AFTER HEGEMONY: COOPERATION AND DISCORD IN THE WORLD POLIT- ICAL ECONOMY 80 (2nd ed, Princeton University Press, 2005).