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Article

Abstract

This Article argues, from the standpoint of democratic legitimacy, that supranational institutions are best understood as administrative in character, and then explores the implications of this argument by looking at the European Community. The author concludes that the Community's democratic deficit flows primarily from an inability to establish democratically legitimate hierarchical supervision over supranational technocrats -- a problem bound up with the historical relationship between demos, democracy and national political institutions as cultural symbols of popular sovereignty. The author examines aspects of Community law designed to maintain forms of national control, as well as two alternative strategies -- democratization through the European Parliament, and non-hierarchical legitimation through transparency and participation rights in the Community regulatory process. Finding these strategies ultimately inadequate, in themselves, to the needs of democratic legitimation, the author turns to judicial review, critically analyzing the deference shown by the European Court of Justice to Community legislative decisions relative to the more democratically-legitimate Member States. Finding this broad deference inconsistent with the Community's administrative character, the author outlines an alternative approach -- a substantive presumption against supranational legislative autonomy -- as well as a new procedure -- a European Conflicts Tribunal -- to resolve conflicts over the scope of the relative legislative authority of the Member States and the Community. The purpose of these reforms would be to mediate between the legitimate needs of legislative harmonization at the Community level, on the one hand, and the persistence of the nation-state as the historically legitimate symbol of democratic sovereignty, on the other -- a tension that arguably exists in any supranational body.

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