Can Supranational Law Enhance Democracy? EU Economic Law as a Market-Democratizing Project

Abstract

Abstract This article focuses on the economic regulatory component of the current backlash against liberal democracy and supranationalism in the European Union (EU). I identify a style of economic regulation that seeks to govern markets in the interest of insiders who are framed as vulnerable to the challenges of economic globalization – what I call rearguard economic regulation. While such regulation may be useful to reinforce national cultural attachments and a sense of belonging, it also has an anti-pluralist character that threatens markets’ emancipatory orientation. By identifying this challenge, the article seeks to defend a vision of markets as contributing to the promise of democracy, by fostering a plurality of options in each sphere of life. In the European context, I argue, EU economic law may be understood as advancing the realization of such a vision of markets. Viewed in this light, supranational and, specifically, EU economic law appear not so much as ordo- (or neo)-liberal straightjackets on national democracy but, instead, as providing mechanisms for democratization of the economy and society. Such democratizing potential is attributable to (i) the pluralist outlook of the law of EU integration, which forces member states to confront the plurality of forms of economic and social life existing within the polity and being further diversified by globalization as well as (ii) the deliberative and open-ended character of EU law adjudication, which may allow for progressive re-articulations of national market regulation.