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ALJ 1/2015 Authoritarian Liberalism 77
What these observations suggest is that at a most elementary level democratic legitimacy flows
from acts delegating authority to the authority’s exercise. Delegation is believed to be, borrowing
Nozick’s parlance, “democracy-preserving”,76 no matter how long the chain of delegations might
be. How easy or difficult it would be to revoke the delegation—and it is not all too easy in the
case of the ECB—is a secondary matter.
VI. Obedience is good
This view of democratic legitimacy is charmingly simple.77 It is presented here only for heuristic
purposes in order to highlight how the means of safeguarding democratic legitimacy open the
door for authoritarian liberalism.
To delegate means to grant others the power to use their own judgement when they are acting
on behalf of one’s interest in unforeseen situations. Whoever chooses to delegate relinquishes
the right, at any rate prima facie, to meddle with how the delegate exercises a given power, at
least as long as this power is not used excessively. Chains of delegations create powers in order
to bring about chains of judgement substitutions.78 National parliaments delegate powers to the
European legislature; the European legislature delegates powers to the European Commission.
Hence, the Commission can use its own judgement in order to regulate because the European
legislature has surrendered its own. This surrender is, in turn, facilitated by the surrender on the
part of national legislatures.
There are good reasons to have judgement substituted. Chief among them are lack of time, in-
terest, knowledge, special expertise, or—in a supranational context—lack of problem-solving
ability.79 Evidently, delegation is supposed to fix some incapacity on the part of the delegator.
There is good reason to delegate when there is reason to believe that the delegate knows better
than we could what we have reason to do. The good reasons also explain why delegation is not
merely a legal relationship but more broadly a relationship of trust. We shall return to this matter
below.
What this comes down to, in other words, is that one ought to delegate if obedience is good for
oneself. Whoever exercises delegated authority over some people is in the position to command
76 See Moravcsik, note 74.
77 I do not, of course, suggest that the liberal intergovernmentalism reflected in the sophisticated works of Andrew
Moravcsik or Robert Keohane espouses such a simple view of the legitimacy of international institutions. These
authors suggest, rather, that the values of liberal democracy are better served in a setting where the influence of
local interest groups is neutralized.
78 Obviously, how I think about delegation is deeply influenced by Joseph Raz’s ideas concerning practical authority.
The language of the exposition does not, however, slavishly follow Raz’s lead. I mention this merely in order to
appease those who might expect elaborate references to the “normal justification” or the “preemptive” thesis.
See JOSEPH RAZ, THE MORALITY OF FREEDOM 53, 61, 71, 78, 80 (Clarendon Press, 1986). I do not offer exercises in “Raz
scholasticism” in the text. Yet, American readers may want to ask: Why Raz and not a rational choice-based prin-
cipal-agent theory, which is a more established theoretical vernacular? The answer is straightforward. Principal-
agent theory does not focus directly on the problem of judgment substitution. It begins with preferences and
how delegation might be necessary to overcome obstacles towards their satisfaction. Only a direct focus on
judgment substitution allows one to encounter the authoritarian moment that emerges from the relation be-
tween a delegator (principal) and a delegate (agent). It is be feared, indeed, that liberal intergovernmentalism is
incapable of capturing this moment owing to its emphasis that delegation of power are a function of signalling
the credibility of long-term commitments. For a highly useful discussion, see MARK A. POLLACK, THE ENGINES OF EU-
ROPEAN INTEGRATION: DELEGATION, AGENCY, AND AGENDA SETTING IN THE EU 31 (Oxford University Press, 2003) at 31.
79 Of course, principal-agent theories are very perceptive in analysing these reasons. See Pollack, note 78 at 21.
zurĂĽck zum
Buch Austrian Law Journal, Band 1/2015"
Austrian Law Journal
Band 1/2015
- Titel
- Austrian Law Journal
- Band
- 1/2015
- Autor
- Karl-Franzens-Universität Graz
- Herausgeber
- Brigitta Lurger
- Elisabeth Staudegger
- Stefan Storr
- Ort
- Graz
- Datum
- 2015
- Sprache
- deutsch
- Lizenz
- CC BY 4.0
- Abmessungen
- 19.1 x 27.5 cm
- Seiten
- 188
- Schlagwörter
- Recht, Gesetz, Rechtswissenschaft, Jurisprudenz
- Kategorien
- Zeitschriften Austrian Law Journal