LAWRENCE — Multinational organizations like the European Union are unique in many ways, but examining such bodies through a lens commonly used to study domestic governmental systems can shed light on why such groupings work and the directions they may be headed. Richard E. Levy, J.B. Smith Distinguished Professor of Law at the University of Kansas, has authored a foundational article applying collective action theory to analyze the institutional structure of the European Union.
The article appears in an issue of the European Journal of Law and Economics honoring the work of Judge Richard Posner, an internationally acclaimed judge and legal scholar known for his work in law and economics. Levy, a former clerk for Posner, who has lived and taught in Europe and written extensively on federalism, has long been drawn to the similarities between federalism in the United States and the structure of the European Union.
“My main focus is on U.S. constitutional law, but I like to think about comparative institutional structures, how they’re parallel to each other and how they’re different,” Levy said. “By doing that I think you can better understand why constitutional systems are structured the way they are.”
Collective action theory explores how groups work together to create common benefits even though they have individual incentives to act as “free riders” that enjoy the benefits of group activity without contributing to it. Although collective action theory originated as a tool for understanding the behavior of individuals, particularly in relation to political processes, Levy has been a pioneer in applying the theory to the relationships among states in the American federal system. This approach is beginning to take root in Europe as well, and Levy hopes that his article will contribute to the use of collective action theory to analyze the European Union.
Like the United States, the EU creates a structure for collective action by member states through which the collective can enact legally binding rules without the unanimous consent of the member states. Nonetheless, the scope of EU authority and the power of EU institutions is more constrained than that of the federal government in the U.S. Levy said he is interested to see if the EU will eventually move further in toward the creation of a federal system such as the U.S., which would require the adoption of a kind of European constitution that transformed the EU from a set of agreements among member states to a social contract among the people of Europe.
Of course, many differences exist in the case of the EU; namely linguistic, cultural and historical differences that currently keep the member states from considering themselves part of a larger entity, as opposed to independent nations, with a shared bond. States often want to retain autonomy and power, but in the EU, as in the United States, power has gravitated to the center, Levy writes.
For example, the supremacy of federal power in the U.S. was not fully established in practice until after the Civil War, and the practical scope of federal power expanded greatly during the 20th century. One important distinguishing characteristic is the EU’s use of the subsidiarity principle to counter the centralization of power. The principle holds that decisions are handled centrally only when they cannot be handled effectively by the member states.
While new economic and legal situations continue to come about, Levy said he is interested to watch how collective action theory can teach us more about the EU and the decisions it makes. The initial concerns such as free trade among members, interstate relations and external relations will continue to be at the forefront, but new issues such as monetary policy for the euro and the ongoing debate about whether the United Kingdom will separate from the EU will continue to shine a light on how the body evolves.
By examining the EU’s makeup through the lens of collective action theory, Levy said, we will be able to see if the organization moves toward a federal system or maintains its current state of a group of national states. Conversely, using collective action theory as a comparative lens will also help us gain a better understanding of the American federal system.
“One of the essential points of comparative law is you gain a better understanding of your own system when you study another,” Levy said. “Studying the EU might help us to think about how, if we do care about member states, might we structure our system to better balance the autonomy of the states against the need to address national issues at the federal level?”
Photo: European flag outside the Commission. By Xavier Hape, via WikiCommons.