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Europe’s wicked legitimacy crisis: the case of refugees

Philomena Murray & Michael Longo


The EU is facing what can be termed a wicked legitimacy crisis in its response to the asylum crisis in Europe. The crisis brings to the fore many inherent tensions of the EU which cannot be easily reconciled.




Journal of European Integration 

Volume 40, 2018 - Issue 4

Original Articles

Europe’s wicked legitimacy crisis: the case of refugees

Pages 411-425 | Published online: 15 Mar 2018

Abstract

The European Union’s response to the current and persistent – if not wicked – refugee crisis has exposed a new legitimacy challenge. Characterised by interstate bickering and undignified competition for the most draconian measures, the crisis brings to the fore many inherent tensions of the EU which cannot be easily reconciled. The crisis has revealed the many shortcomings of EU governance. Deficits of leadership and solidarity and the rise of xenophobic politics across many member states exploit growing populism with pronounced effect. This multi-dimensional problem, so resistant to a distinct solution, underscores the EU’s instability in a number of ways: its foundational values have lost resonance; its institutional inadequacies have become more apparent; its leadership and agenda-setting power have been noticeably weakened. Ultimately, the EU is no longer perceived as a problem-solver, a fact that inherently tests the legitimacy of a system that was created to solve problems.

Introduction

The EU is facing what can be termed a wicked (Rittel and Webber 1973) legitimacy crisis in its response to the asylum crisis in Europe. If wicked problems lie at the ‘juncture where goal-formulation, problem-definition and equity issues meet’ (Rittel and Webber 1973, 156) and are characterised by a resistance to resolution, then the asylum crisis qualifies as a wicked problem. This article argues that the refugee crisis brings to the fore many contradictory and connected problems of the EU’s processes and values, with negative implications for its legitimacy, as different actors in EU governance seek to impose their own solutions on a system under strain and the EU struggles to retain salience and coherence. 

The EU response to recent crises has witnessed contestation by governments of member states, by opposition parties and by citizens. There remains a pressing challenge to tackle the humanitarian crisis both within and beyond the EU’s borders. However, a gap of both responsibility and leadership renders a solution difficult. The crisis is defined and perceived differently by different actors. At the same time that some EU leaders have been promoting the need for solidarity in dealing with this crisis, there are measures for the protection of both national borders and the EU’s external borders. The anxiety about porous borders has been compounded by insecurities following repeated terrorist attacks in Europe.Alongside a diminishing narrative emanating from some EU leaders urging a values-based response that welcomes refugees within the EU, there has been intensifying recourse to the familiar paradigm of border security, characterised by the language of exclusionism and national interest. The EU’s failure to date to execute a fair and effective asylum processing system is encouraging the conflation of refugee and security concerns to the detriment of social cohesion with consequences for the way the EU defines itself.

This article focuses on refugees as a case study in order to argue that the asylum crisis is having a corrosive effect on the EU’s legitimacy, assessed in both normative and empirical terms. Scholars have tended to evaluate EU legitimacy against three normative standards, characterised as output (performance) (e.g. Moravcsik 2002; Scharpf 1999), input (participation) (e.g. Scharpf 1999) and throughput (governance processes) (e.g. Schmidt 2010, 2013) legitimacy. This article seeks to build on established legitimacy theory by demonstrating that EU legitimacy is contingent on member state actions, which can either enhance or detract from it. Assessed against normative criteria, we will illustrate that the EU’s ability to produce effective outcomes, and to resolve complex problems of governance, is substantially dependent on the member states’ willingness to empower or enable effective performance. From empirical perspectives, EU actions can be rapidly delegitimised by effective anti-EU campaigns and governments. The EU cannot act in a manner that produces legitimate outcomes if the member states do not agree on actions or fail to support EU policies.

Conditional and contingent, the EU’s legitimacy has spawned academic debates that presuppose the possibility of a positive or negative answer to the question of the EU’s purported legitimacy. Scholars have shown that the EU draws on the legitimacy resources of its member states (Weiler 2013) and that EU decisions are legitimate to the extent that they coincide with member state interests and preferences (Moravcsik 1993) or do not address matters of high electoral salience that demand democratic input (Moravcsik 2002, 606). We argue that the current EU institutional and governance settings are insufficient to being about legitimacy effectively. As EU legitimacy is primarily dependent on member states’ willingness to confer legitimacy to the collective decision-making of the EU, we examine this legitimacy from the perspective of the EU as a governance system that brings to the fore the role of the member state in according it legitimacy. Therefore, we examine legitimacy from a dual perspective, employing normative and empirical methods. First, we argue that the EU is no longer a problem solver. Its policy output and performance are contested. Second, from the empirical perspective of social acceptance (Weber [1922] 1978, 33), pursuant to which ‘subjective belief in the validity of an order … constitutes the valid order itself’, the EU faces a growing challenge of popular rejection, for example by referendum. Here, the member states possess the power and resources to affect perceptions and outcomes.

This article therefore examines the case of refugees as a crisis of legitimacy – not of the EU per se, but of the EU system. This then leads us to question why values such as solidarity are largely absent from current EU decisions. As we draw ‘values’ into our evaluative framework, we argue that solidarity and related principles, as expressed in EU treaties (e.g. articles 2, 3, 21, 24(2) and (3) of the TEU and articles 67, 80 of the TFEU), have hardened into normative propositions, which can themselves be measured in an assessment of the legitimacy of the EU’s policy output. We argue that the values gap that currently characterises EU governance is itself a challenge to the EU’s legitimacy. As the gap widens between the values embedded within the founding treaties and the policies which purport to give effect to them, the EU loses legitimacy. Accordingly, the legitimacy of the EU’s policies can be assessed against the normative values that authorise EU action.
 
We argue that the predominance of a narrative of national interest and security over a values-based one reprioritises both the elaboration of a just solution to the crisis and the regime-defining goal of integration. Furthermore, a combination of political and institutional factors, including a lack of electoral support and negative public opinion, currently renders the EU less than effective in advancing solutions to the asylum crisis, to the detriment of its legitimacy. The perpetual struggle to bring about a European solution has a legitimacy-eroding effect on the EU as a problem-solver. The EU has made few inroads into the crisis, largely due to many states’ intransigence, opposing public opinion, the shortfall of EU policy coherence and the resulting loss of EU authority.

The legitimacy crisis is therefore sustained by what appears to be a triple tension. While not new, the tensions are combining into anti-EU sentiment, which potentially exposes the EU to input legitimacy shocks when citizens are provided the opportunity to vote on EU issues. The first of these tensions is the diverging national and EU-level responses to the crisis. The second is the struggle for leadership and policy coherence among and within the EU institutions to bring about a common and effective approach. The third is the tension of interests versus values. None of these intersecting tensions seems capable of being attenuated. Indeed, there is potential for even greater dissonance as member states engage in a range of variegated national policies of open borders or border closures, or caps on refugees. The Commission expresses core values including adherence to the rule of law in its concern about the incompatibility of certain national measures with obligations under European and international law. However, these attitudes breathe life into a narrative that depicts the EU as ineffectual in promoting solidarity in the face of a growing eagerness in many nations to seal their national borders and societies from asylum-seekers. The failure of the EU leadership to reconcile these opposing positions means that Europe risks descending into unchecked nationalism. Precisely at a time when a stronger coordinated response is required, the EU is weakened by its failure to enact a cross-EU policy that member states will accept.

 

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​Research network, funded by the EU: Comparative Network on Refugee Externalisation Policies