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Government and Opposition, Vol. 47, No. 3, pp. 414440, 2012

doi:10.1111/j.1477-7053.2012.01369.x

Christine Reh1

goop_1369

414..440

European Integration as Compromise:

Recognition, Concessions and the Limits
of Cooperation
THE ROLE PLAYED BY COMPROMISE IN EUROPEAN INTEGRATION HAS

been widely recognized and commented upon. European Union

(EU) scholars and practitioners have analysed the predominant consensus reflex2 and culture of compromise3 at the heart of Community decision-making; the EUs constitutional settlement, combining
functional market integration with a high level of institutionalization
and the coexistence of disparate domestic constitutions, has been
called a constitutional compromise;4 and negotiation theorists have
pointed to the key role of both integrative bargaining in EU decisionmaking5 and compromise agreements as bargaining equilibria.6 In
1
I would like to thank Hartmut Behr, Richard Bellamy, Markus Kornprobst, Miles
Hewstone and Ian OFlynn for their helpful comments on an earlier version of this
paper. My thanks also go to all participants of the 2010 workshop on Meeting in the
Middle: The Feasibility and Morality of Compromise in Global Politics at the Vienna
School of International Studies, and to the audience of the 2011 UACES panel on
Future Directions of European Integration.
2
Dorothee Heisenberg, The Institution of Consensus in the European Union:
Formal Versus Informal Decision-Making in the Council, European Journal of Political
Research, 44: 1 (2005), pp. 6590.
3
Jeffrey Lewis, Is the Hard Bargaining Image of the Council Misleading? The
Committee of Permanent Representatives and the Local Elections Directive, Journal of
Common Market Studies, 36: 4 (1998), pp. 479504.
4
Andrew Moravcsik, The European Constitutional Compromise and the Neofunctionalist Legacy, Journal of European Public Policy, 12: 2 (2005), pp. 34986.
5
Ole Elgstrm and Christer Jnsson, Negotiation in the European Union: Bargaining or Problem-Solving?, Journal of European Public Policy, 7: 5 (2000), pp. 684704;
Andreas Dr and Gemma Mateo, Choosing a Bargaining Strategy in EU Negotiations:
Power, Preferences, and Culture, Journal of European Public Policy, 17: 5 (2010),
pp. 68093.
6
Javier Arregui and Robert Thomson, States Bargaining Success in the European
Union, Journal of European Public Policy, 16: 5 (2009), pp. 65576.

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EUROPEAN INTEGRATION AS COMPROMISE

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short, references to compromise have come from the different

subfields of European politics and from across the meta-theoretical
spectrum.
At the same time, the systematic conceptual, analytical or normative study of compromise has remained the exception.7 Conceptually,
scholars have told us little about what defines a compromise, about
what distinguishes a compromise from other negotiated agreements,
or about how types of compromise differ from one another; furthermore, they tend to use the terms compromise and consensus
interchangeably. Analytically, there are few systematic studies of the
social and institutional context conditions that facilitate compromise
at the supranational level, or of how a negotiated agreement becomes
an accepted and, hence, effective instrument of EU governance. This
is even more surprising when we consider the wealth of studies on
deliberation and persuasion and on the conditions that facilitate the
search for consensus.8 Finally, in spite of the burgeoning literature on
EU legitimacy, spanning the discussion of pre-political community,
procedural democracy and systemic output,9 the legitimizing force of
compromise an essential element in relieving the tension between

7
Richard Bellamy and Justus Schnlau, The Good, the Bad and the Ugly: The
Need for Constitutional Compromise and the Crafting of the EU Constitution, in
Lynn Dobson and Andreas Fllesdal (eds), Political Theory and the European Constitution,
London and New York, Routledge, 2004, pp. 5674; Christine Reh, Consensus, Compromise and Inclusive Agreement: Negotiating Supranational Governance, in Corneliu Bjola and Markus Kornprobst (eds), Arguing Global Governance: Agency, Lifeworld
and Shared Reasoning, London, Routledge, 2010, pp. 17793.
8
See for example Jrgen Neyer, Explaining the Unexpected: Efficiency and Effectiveness in European Decision-Making, Journal of European Public Policy, 11: 1 (2004),
pp. 1938; Diana Panke, More Arguing than Bargaining? The Institutional Designs of
the European Convention and Intergovernmental Conferences Compared, Journal of
European Integration, 28: 4 (2006), pp. 35779; Thomas Risse and Mareike Kleine,
Deliberation in Negotiations, Journal of European Public Policy, 17: 5 (2010),
pp. 70826.
9
See for example Fritz W. Scharpf, Governing in Europe: Effective and Democratic?
Oxford and New York, Oxford University Press, 1999; Christopher Lord and David
Beetham, Legitimizing the EU: Is There a Post-Parliamentary Basis for its Legitimation?, Journal of Common Market Studies, 39: 3 (2001), pp. 44362; Andreas Fllesdal and
Simon Hix, Why There is a Democratic Deficit in the European Union: A Response to
Moravcsik and Majone, Journal of Common Market Studies, 44: 3 (2005), pp. 53362.

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cooperation and competition10 has remained strangely absent from

the debate.
In short, while the existence of compromise has been widely recognized by EU scholars and practitioners alike, the concept and
function of compromise have remained under-represented in the
literature on EU politics. This is surprising since the concept of
compromise can be linked to three questions at the heart of European integration: (1) How does the EU accommodate diversity? (2)
What makes supranational rule normatively justifiable? (3) Who or
what defines the limits of European cooperation?
This article attempts to get closer to the concept of compromise
and to the role that compromise can play in legitimizing supranational governance. In a nutshell, the article argues that the EU a
divided, multilevel and functionally restricted polity is highly
dependent on the legitimizing force of compromise and of inclusive
compromise more specifically. This is true for horizontal or microlevel relations between political actors (where compromise works
through procedural accommodation) and for vertical or macrolevel relations between systems of governance (where compromise
works through constitutional compatibility). The legitimizing
potential of inclusive compromise stems from its core characteristic
the recognition of difference and the process through which such
an agreement is reached, combining mutual, generous concessions
and communication characterized by perspective-taking, empathic
concern and justification. Recognition signals non-domination;
mutual concessions are non-coercive and establish long-term trust in
diffuse reciprocity; and an ongoing communication between parties
about their grounds for conflict, characterized by justification,
perspective-taking and empathic concern, promotes a logic of cooperation. The process of reaching an inclusive compromise is thinner
than deliberation but thicker than bargained exchange. Substantively, inclusive compromise differs from both consensus and bartered agreements: it is not aimed at the synthesis of positions, and the
concessions offered are generous rather than minimal. Signalling
non-domination and promoting a logic of cooperation, inclusive
compromise can thus be instrumental in legitimizing political rule in
the divided polity that is the EU. Given this potential, the article,
10

Avishai Margalit, On Compromise and Rotten Compromises, Princeton, Princeton

University Press, 2010, p. 38.
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finally, investigates the limits to the possibility of reaching such an

agreement. I suggest that these limits are issue specific and linked to
the question of where the costs of cooperation are borne, pertaining
either to accommodation (at the micro level) or to constitutional
compatibility (at the macro level).
The article proceeds in the following steps. The first section introduces the EU as divided, multilevel and functionally restricted, and
identifies a number of challenges that this characterization raises for
any attempt to legitimize such a polity. Building on the definition of
compromise suggested in the introduction to this volume,11 the next
section defines the concept of inclusive compromise. After this, the
third part analyses the legitimizing force of inclusive compromise, at
both the vertical and horizontal levels of governance. The following
section identifies the issue-specific limits to compromise and, thus, to
supranational cooperation more generally. The final section concludes by outlining routes for follow-up empirical research.

THE EUROPEAN UNION: DIVIDED, MULTILEVEL AND

FUNCTIONALLY RESTRICTED

The EU is, first and foremost, an arena of governance beyond the

nation-state that produces and enforces binding political decisions.
In doing so, the EU covers a broader policy remit than traditional
international organizations do, and it is exceptionally effective; Community law is widely complied with in and therefore legitimized by
its member states.12
To produce and institutionalize these policy arrangements, actors
no matter at what level of EU decision-making mainly resolve their
conflicts through negotiation.13 Negotiation is one possible form
of finding a solution, [w]hen a group of equal individuals are to
make a decision on a matter that concerns them all and the initial
11
Richard Bellamy, Markus Kornprobst and Christine Reh, Introduction: Meeting
in the Middle, this volume, pp. 27595.
12
Fritz W. Scharpf, Legitimacy in the Multilevel European Polity, European Political Science Review, 1: 2 (2009), pp. 173204.
13
Helen Wallace, Politics and Policy in the EU: The Challenge of Governance, in
Helen and William Wallace (eds), Policy-Making in the European Union, 3rd edition,
Oxford, Oxford University Press, 1996, pp. 336, at p. 32; Dr and Mateo, Choosing
a Bargaining Strategy.

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distribution of opinion falls short of consensus.14 Negotiation differs

from numerical aggregation (conflict resolution through voting),
adjudication (conflict resolution through hierarchical judicial
choice) and force (conflict resolution through physical coercion).15
So far, the study of EU negotiation has mainly attracted theorists of
rationalist bargaining on the one hand, and scholars of argumentation, deliberation and persuasion on the other.16 The former
explain decision outcomes as bargaining equilibria given set preferences in the policy space;17 the latter turn to the EUs deliberative
decision style to explain compliance with Community law,18 and to
identify alternative forms of democratic legitimacy.19 Supranational
decision-making has also been used to test theories of deliberation,20
argumentation21 and problem-solving.22
In this article I will, instead, focus on the EUs constant search for
and reliance on compromise. More specifically, I will explore how the
14
Jon Elster, Introduction, in Jon Elster (ed.), Deliberative Democracy, Cambridge,
Cambridge University Press, 1998, pp. 118, at p. 5.
15
Christer Jnsson, Diplomacy, Bargaining and Negotiation, in Walter Carlsnaes,
Thomas Risse and Beth A. Simmons (eds), Handbook of International Relations, London,
Sage, 2002, pp. 21234, at p. 217II. Throughout this article negotiation is used in a
generic way, namely as one possible mode of solving conflicts peacefully, rather than
as the narrow concept of bargaining that dominates the study of European politics
and international relations.
16
For a more encompassing approach see Andreas Dr, Gemma Mateo and Daniel
C. Thomas (eds), Negotiation Theory and the EU: The State of the Art, London and New
York, Routledge, 2011.
17
Robert Thomson, Frans N. Stokman, Christopher H. Achen and Thomas Knig
(eds), The European Union Decides, Cambridge, Cambridge University Press, 2006;
Arregui and Thomson, States Bargaining Success.
18
Neyer, Explaining the Unexpected.
19
Erik O. Eriksen and John O. Fossum (eds), Democracy in the European Union:
Integration Through Deliberation?, London and New York, Routledge, 2000.
20
Christian Joerges and Jrgen Neyer, From Intergovernmental Bargaining to
Deliberative Political Processes: The Constitutionalisation of Comitology, European
Law Journal, 3: 3 (1997), pp. 27399; Christian Joerges and Jrgen Neyer, Transforming Strategic Interaction into Deliberative Problem-Solving: European Comitology in
the Foodstuffs Sector, Journal of European Public Policy, 4: 4 (1997), pp. 60925; Risse
and Kleine, Deliberation in Negotiations.
21
Daniel Naurin, Most Common When Least Important: Deliberation in the
European Union Council of Ministers, British Journal of Political Science, 40: 1 (2010),
pp. 3150.
22
Elgstrm and Jnsson, Negotiation in the European Union.

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nature of inclusive compromise and the process through which it is

reached can respond to the particular challenges faced by any
attempt to legitimize the EU.
First, the EU has been described as a deeply divided, plural
society,23 and these deep divisions make established forms of majoritarian democracy not only difficult but potentially illegitimate to
apply at the supranational level. As a polity the EU is, indeed, segmented by multiple social, cultural and economic divides, but, first
and foremost, by the national cleavages that result from its composition of 27 member states. Given the absence of preconditions for fully
fledged supranational democracy, these 27 states continue to be
the prime arenas for both democratic contestation and social solidarity.24 The ensuing challenges for the possibility to legitimize the
Union have been debated extensively.25 Essentially, the continued
existence (and pre-dominance) of national cleavages calls for nonmajoritarianism at the supranational level. Without a demos to legitimize majority rule,26 and given the risk of congruence between
political and national minorities, basic trust in the alternation
between government and opposition is lacking. Allowing the minority to be ruled by the majority a well-established practice in national
democracies would therefore bring about a decline in the social
legitimacy of the polity with consequent dysfunctions and even
disintegration.27
Second, the EU is a multilevel polity, where political authority
is allocated across supranational, national and subnational levels,
and where EU decisions depend on domestic implementation.28
Throughout the history of European integration, the reliance on
domestic compliance (and, thus, legitimacy) has shielded the EU
23
Arend Lijphart, Patterns of Democracy: Government Forms and Performance in ThirtySix Countries, New Haven, CT, and London, Yale University Press, 1999, p. 46.
24
See for example Joseph H. H. Weiler, Problems of Legitimacy in Post 1992
Europe, Aussenwirtschaft, 46: 3/4 (1991), pp. 41137; Dieter Grimm, Does Europe
Need a Constitution?, European Law Journal, 1: 3 (1995), pp. 282302.
25
See for example Weiler, Problems of Legitimacy; Simon Hix, The Study of the
European Union II: The New Governance Agenda and its Rival, Journal of European
Public Policy, 5: 1 (1998), pp. 3865; Scharpf, Governing in Europe.
26
Hix, The Study of the European Union II, p. 51.
27
Weiler, Problems of Legitimacy, p. 419.
28
Scharpf, Legitimacy in the Multilevel European Polity; Vivien Schmidt, Democracy in Europe: The EU and National Polities, Oxford, Oxford University Press, 2007.

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from a fully fledged acceptance crisis.29 The EUs multilevel nature

has therefore contributed to stability. Yet, in combination with the
above-defined challenge the absence of pre-political community,
democratic space and social solidarity in a highly divided polity it
also raises an additional challenge for any attempt to legitimize supranational governance: if the predominant arena for national contestation remains national, if individual political rights must be
protected at the domestic level,30 and if the EU, therefore, depends
on the continued legitimacy of its member states,31 then EU legitimacy demands that political values and their structural realization, in
the form of rights and institutions, are compatible across arenas of
governance.32
Third, although the EU is a polity, it is a polity with the functionally restricted purpose of economic integration; in particular, its
market constitution33 does not include a competence for taxation or
for redistributive social policies. This has two repercussions for any
attempt to legitimize the Unions decisions. The lack of a competence in redistributive welfare policies the one issue area of continued salience for national electorates and the fact that EU elections
do not translate into clear choices between welfare agendas limit the
potential for competitive democracy at the supranational level.34 In
addition, the EU lacks both the competence and the resources to
keep potentially outvoted minorities committed to the supranational
29

Fritz W. Scharpf, Reflections on Multilevel Legitimacy, MPIfG Working Paper 3,

2007, p. 8.
30
Jospeh H. H. Weiler, In Defence of the Status Quo: Europes Constitutional
Sonderweg, in Joseph H. H. Weiler and Marlene Wind (eds), European Constitutionalism Beyond the State, Cambridge, Cambridge University Press, 2003, pp. 723; Richard
Bellamy, The Liberty of the Moderns? Market and Civic Freedom within the EU,
Global Constitutionalism, 1: 1 (2012), pp. 14172.
31
Scharpf, Legitimacy in the Multilevel European Polity.
32
Nicole Bolleyer and Christine Reh, EU Legitimacy Revisited: The Normative
Foundations of a Multilevel Polity, Journal of European Public Policy, 19: 4 (2012),
pp. 47290.
33
Miguel P. Maduro, We the Court: The European Court of Justice and the European
Economic Constitution, Oxford, Hart, 1998.
34
Stefano Bartolini in Simon Hix and Stefano Bartolini, Politics: The Right or
Wrong Sort of Medicine for the EU?, Notre Europe Policy Paper 19, 2006; Andrew
Moravcsik, In Defence of the Democratic Deficit: Reassessing Legitimacy in the
European Union, Journal of Common Market Studies, 40: 4 (2004), pp. 60324. For the
counter-argument see Fllesdal and Hix, Why There is a Democratic Deficit.
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polity by offering generous welfare pay-offs. At the same time, there

is no clear constitutionally defined hierarchy of levels and competences, and supranational governance therefore risks undermining
core national welfare choices.35 A functioning single market may, in
fact, make such a challenge both necessary and unavoidable.
In sum, given its division, multilevel nature and functional restriction, the EU cannot rely on the procedural and substantive mechanisms that make political rule acceptable at the national level,
primarily majoritarianism and redistribution; at the same time, it
needs to keep domestic legitimacy intact.
This well-known diagnosis has been followed by a plethora of
suggestions for strengthening EU legitimacy, including the empowerment of the citizen as the political subject in supranational parliamentary democracy,36 the systematic involvement of civil society as an
alternative form of democratic input37 and a focus on deliberative
democracy.38 In the following, I will suggest that inclusive compromise can, to a degree, compensate for the lack of those procedural
and substantive mechanisms that legitimize political rule at the
national level. This legitimizing work is done through the core
feature of inclusive compromise and through the process of reaching
inclusive compromise: the recognition of difference conferred
through mutual, generous concessions and expressed in communication characterized by justification, perspective-taking and empathic
concern. In doing so, I will not discuss institutional mechanisms of
accommodation as set up in the EUs political system: such mechanisms, including constitutional rigidity, over-sized majorities, subsidiarity and proportional institutional composition have been amply
described by theorists of consociational and consensus democracy.39
Instead, I will look at the processes through which diversity can be
accommodated at the micro level of interaction (between political
negotiators) and at the macro level of governance (between
constitutional systems). In short, I will discuss how the search for
35
Bellamy, The Liberty of the Moderns; Scharpf, Reflections on Multilevel
Legitimacy; Scharpf, Legitimacy in the Multilevel European Polity.
36
See for example Lord and Beetham, Legitimizing the EU.
37
See for example Beate Kohler-Koch, Civil Society and EU Democracy: Astroturf Representation?, Journal of European Public Policy, 17: 1 (2010), pp. 10016.
38
See for example Eriksen and Fossum, Democracy in the European Union.
39
Rudy B. Andeweg, Consociational Democracy, Annual Review of Political Science,
3 (2000), pp. 50936, at p. 515; Lijphart, Patterns of Democracy, pp. 42ff.

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compromise should be constructed, and what needs to be off limits

in this search, in order to contribute to legitimizing supranational
governance.

TWO TYPES OF COMPROMISE

Before discussing in the next section why, at what level and through
which processes compromise can legitimize the generation of
binding rules beyond the nation-state, I need to outline what I mean
by compromise. In the introduction to this volume, Bellamy, Kornprobst and Reh identify compromise as one possible solution to a
situation of conflict. An agreement distinct from consensus, compromise has three defining features: first, all participants to the agreement must make concessions; second, those concessions must be
voluntary rather than coerced; third, although parties reach an agreement through compromise, their grounds for conflict will persist.40
As argued in the introduction, compromises can come in different
shapes and forms; they differ more specifically in the nature of concessions made, in degrees of (non-)coercion, and in whether (or not)
the grounds for conflict are transformed.41 In the following, I will
build on the introduction to this volume as well as previous work by
Bellamy and Hollis,42 Margalit43 and Reh44 to distinguish two types
of compromise bartered and inclusive according to their
characteristics and according to the process through which they are
reached.
The introduction to this volume maps a continuum for each of the
three defining features of compromise. First, concessions can stretch
from minimal, pain-free and strategic to generous, costly and social
moves; second, in the absence of overt coercion, interaction can
range from competitive gain maximization to cooperative accommodation; third, albeit persisting, the parties reasons for conflict
40

Bellamy, Kornprobst and Reh, Introduction, p. 285.

Ibid., pp. 285ff.
42
Richard Bellamy and Martin Hollis, Consensus, Neutrality and Compromise, in
Richard Bellamy and Martin Hollis (eds), Pluralism and Liberal Neutrality, London and
Portland, OR, Frank Cass, 1999, pp. 5478.
43
Margalit, On Compromise, chapter 2.
44
Reh, Consensus, Compromise and Inclusive Agreement.
41

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can vary as to whether and how much they are elucidated or

transformed.45
A bartered compromise an anaemic agreement, as Margalit calls it46
sits at the far left end of each continuum. To reach such a compromise, all parties concede, but their concessions will be purely strategic; the minimum moves necessary to strike a deal, they are tightly
circumscribed by an actors predefined preferences and payoff
matrix. A bartered compromise is struck on the terrain of the
trader;47 actors bring something to a market and take something
away, after exchanging freely with others to mutual advantage.48 In
short, individual gain maximization rather than mutual accommodation is at the core of a bartered agreement. If compromise,
indeed, mediates the tension between cooperation and competition,49 then bartered compromise tilts heavily towards the latter.
Finally, built through minimal, pain-free and strategic concessions, a
bartered compromise has little transformative potential. No compromise agreement can, or aims to, do away with the underlying grounds
for conflict, but a bartered compromise cannot even contribute to
elucidating them.
This is due to the process leading up to such an agreement. The
concessions necessary for a bartered compromise are made in the
strategic process of competitive (or distributive) bargaining rather
than in the integrative (or cooperative) variant of negotiation.50 The
two modes of bargaining share a key feature: aimed at maximizing
wants, actors follow a volitive rather than an epistemic or normative
logic.51 Where actors bargain no matter in which way they do not
45

Bellamy, Kornprobst and Reh, Introduction, pp. 285ff.

Margalit, On Compromise, p. 39.
47
Richard Bellamy, Liberalism and Pluralism: Towards a Politics of Compromise,
London, Routledge, 1999, chapter 1.
48
Bellamy, Liberalism and Pluralism, p. 96.
49
Margalit, On Compromise, pp. 37ff.
50
David A. Lax and James K. Sebenius, The Manager as Negotiator: Bargaining for
Cooperation and Competitive Gain, New York and London, Free Press, 1986, pp. 112ff.
Daniel Naurin, Why Give Reason? Measuring Arguing and Bargaining in Survey
Research, Swiss Political Science Review, 13: 4 (2007), pp. 55975; Richard E. Walton and
Robert B. McKersie, A Behavioral Theory of Labor Negotiations: An Analysis of a Social
Interaction System, New York, McGraw-Hill, 1995, pp. 144ff.
51
Katharina Holzinger, Kommunikationsmodi und Handlungsmodi in den Internationalen Beziehungen: Anmerkungen zu einigen irrefhrenden Dichotomien,
Zeitschrift fr Internationale Beziehungen, 8: 2 (2001), pp. 24386, at p. 268.
46

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strive to persuade their fellow negotiators to converge on a single

viewpoint or to empathize with the reasons behind a negotiators
preferred course of action. Bargaining intends to change behaviour
and positions, not preferences or attitudes;52 in contrast to more
deliberative forms of interaction, it makes no efforts at changing the
minds of the others about what they want or what they perceive to be
right.53 More specifically, although the concessions behind a compromise must never result from coercion, in a bartered agreement
more for one means less for the other.54 Here, bargaining is played
out as a competitive game; like traders in a market, actors attempt to
extract the maximum from their opponents for the smallest possible
price. They do not try to construct mutually beneficial and inclusive
solutions that would require more extensive concessions than a strict
focus on payoffs would allow.55 In this process, an actors success is
defined by her bargaining power, grounded either in material capabilities56 or in different preference intensities, exit options and alternatives to negotiated agreement.57 Actors will only split the difference
equally where bargaining resources are distributed equally too; as
Margalit puts it, Meeting halfway may . . . be the result of an anemic
compromise, but only if the two sides are comparable in their bargaining strength.58
In spite of sharing the three defining features with a bartered
compromise, an inclusive compromise differs from it with regard to the
types of concessions made, the manifestation of non-coercion and
the transformative potential of the negotiation process. Sitting at the
far right side of each continuum identified in the introduction to this
volume, such a sanguine agreement, as Margalit calls it, can be
described as an anemic compromise with additional features, the

52

Harald Mller, Arguing, Bargaining and All That: Communicative Action,

Rationalist Theory and the Logic of Appropriateness in International Relations, European Journal of International Relations, 10: 3 (2004), pp. 395435, at p. 397.
53
Naurin, Why Give Reason, p. 561.
54
Lax and Sebenius, The Manager as Negotiator, p. 119.
55
Naurin, Why Give Reason, p. 563.
56
Bruce B. De Mesquita, James D. Morrow and Ethan R. Zorick, Capabilities,
Perception, and Escalation, American Political Science Review, 91: 1 (1997), pp. 1527.
57
Andrew Moravcsik, Taking Preferences Seriously: A Liberal Theory of International Politics, International Organization, 51: 4 (1997), pp. 51353.
58
Margalit, On Compromise, p. 48.
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EUROPEAN INTEGRATION AS COMPROMISE

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most important being recognition.59 In their search for inclusive

compromise, actors will not and need not change the preferences
and values underlying their negotiation positions, but they need to
make more costly and painful concessions than would be necessary
for a bartered agreement. Hence, an inclusive compromise is not
struck on a traders terrain. Of course, to reach such an agreement,
parties need to give and take, and they need to identify the necessary
moves strategically. Yet, parties in search of inclusive compromise do
more. Even though actors are not open to changing their cherished
beliefs or adapting their preferences accordingly as they would do
in the more deliberative search for consensus60 they will engage in
the wider, more social process of accommodating each others concerns, practised as part of the search for conditions of mutual acceptability that reach towards a compromise that constructs a shareable
good.61 Their interaction is characterized by more than the mere
absence of coercion: combining an individualist logic of volition with
a strong motivation for sustained cooperation, actors will be ready to
concede more generously than their strategic position and bargaining resources would require. To confer recognition, an inclusive
compromise may even involve a measure of sacrifice from the strong
side, not driving as hard a bargain as it could.62 In addressing the
tension between cooperation and competition, inclusive compromise
therefore tilts towards the former. Finally, built through generous,
costly and social concessions, the process of reaching an inclusive
compromise has a transformative potential. Unlike parties to a consensus, actors would have preferred a different outcome to their
negotiation; they are fully aware of the costs that their compromise
entails. Yet, through the negotiation process, parties to an inclusive
compromise will have gained a wider awareness, not only of each
others goals and positions but also of the reasons underlying their
claims. Although the grounds for conflict persist, actors perceptions
of their opponents and of the situation of conflict itself can therefore be elucidated and transformed. As was the case with bartered
agreement, all three characteristics of inclusive compromise are
owed to the process through which it is reached.
59

Ibid., p. 39.
Thomas Risse, Lets Argue! Communicative Action in World Politics, International Organization, 54: 1 (2000), pp. 139, at p. 7.
61
Bellamy, Liberalism and Pluralism, p. 101.
62
Margalit, On Compromise, p. 41.
60

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The particular type of concessions required for an inclusive compromise are made in a process of integrative bargaining, preceded by
a stage of thin arguing.63 Integrative bargaining shares one key
characteristic with its distributive variant: actors do not aim to converge on a synthesis64 about the right course of action;65 like the
competitive negotiators or traders discussed above, they follow an
essentially volitive logic. However, actors willing to concede equally
and generously must combine a volitive logic with the motivation to
cooperate and with trust in diffuse reciprocity; both conditions
underlie the willingness to concede equally and generously.66 Indeed,
integrative bargaining maximizes wants in such a way that the preferences of all parties around the table can be accommodated.67
Agreement must be built through far-reaching concessions, and such
accommodation requires actors who are strategic but cooperative,
and whose interest in substantive mutually satisfying solutions68 is
combined with an interest in the character of the negotiation
process itself.69 To reach agreement, these actors resort to bargaining speech acts such as suggesting, offering, promising, conceding,
upholding and retreating concessions, linking issues, trading compensations and agreeing on a second best;70 they share information
and candidly speak their minds about what they want.71 Based on a
logic of cooperation and on trust, parties engage in a process of
mutual accommodation, including each others interests and values

63

Reh, Consensus, Compromise and Inclusive Agreement.

Bellamy and Hollis, Consensus, Neutrality and Compromise, p. 64.
65
Naurin, Why Give Reason, p. 563. For a more extensive discussion of integrative
bargaining see Lax and Sebenius, The Manager as Negotiator; for an overview of different
negotiation modes see Terence Hopmann, Negotiation Data: Reflections on the
Qualitative and Quantitative Analysis of Negotiation Processes, International Negotiation, 7 (2002), pp. 6785.
66
For an excellent discussion of the preconditions of successful bargaining more
generally see Panke, More Arguing than Bargaining?.
67
Naurin, Why Give Reason, p. 562.
68
Bellamy, Liberalism and Pluralism, p. 101.
69
Lax and Sebenius, The Manager as Negotiator, p. 72.
70
Bellamy, Liberalism and Pluralism, p. 104; Katharina Holzinger, Verhandeln statt
Argumentieren oder Verhandeln durch Argumentieren? Eine empirische Analyse auf
der Basis der Sprechakttheorie, Politische Vierteljahresschrift, 42: 3 (2001), pp. 41446, at
p. 428.
71
Naurin, Why Give Reason, p. 563.
64

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as far as possible. Such accommodation is at the core of inclusive

compromise.
Hinging on rich communication, but not on deliberation, integrative bargaining is not geared towards changing actors deep-seated
interests, values and beliefs. Yet, the granting of mutual concessions
requires that these interests, values and beliefs are exchanged,
explained and understood, and that actors trust each others willingness to concede reciprocally. To settle a conflict successfully, integrative bargaining must therefore be preceded by a communicative
process that builds actors willingness to concede and to concede
generously. I call this process thin arguing.72
International negotiations can be played out in either an arguing
or a bargaining mode or in a combination of the two; each mode
differs according to underlying actor motivation, procedural characteristics and substantive effects. If bargaining can play out in a competitive and an integrative variant, arguing can come in a thin and
a thick form. The two are identical in procedural terms: negotiators
who argue try to solve conflicts by giving reasons and by justifying
their preferred course of action.73 They do so by using a set of distinct
speech acts such as stating, asking, explaining, justifying, contradicting, agreeing, upholding or retreating arguments.74 Yet, depending
on whether negotiators argue in a thin or a thick sense, their
underlying motivations and the justifications used will differ.
The goal of thick arguing is to reach consensus on the right
course of action.75 Thick arguing is targeted at and, under certain
conditions, can translate into substantive persuasion and preference change and, thus, lead to reasoned consensus. This mode of
interaction has been covered extensively by the deliberative strand in
European Studies and International Relations (IR), and, given my
interest in compromise rather than consensus, thick arguing is of
less relevance here.
When arguing thinly, actors try to reach agreement by convincing co-negotiators to take a particular course of action, but they do
not target each others preferences as the ordered and weighted set
72

Reh, Consensus, Compromise and Inclusive Agreement.

Nicole Deitelhoff and Harald Mller, Theoretical Paradise: Empirically Lost?
Arguing with Habermas, Review of International Studies, 31 (2005), pp. 16779, at
p. 172.
74
Holzinger, Verhandeln statt Argumentieren, p. 428.
75
Naurin, Why Give Reason, p. 563.
73

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of values placed on future substantive outcomes.76 As such, thin

arguing does not imply that actors are open to being persuaded,
ready to see their beliefs challenged by the better argument or prepared to adopt altruistic positions; they will only choose a reasoning
style, in which actors abstain from using threats and promises, and try
to make their proposals plausible by referring to general principles
and norms.77 These can be substantive norms, on which claims of
factual truth or normative validity are based.78 But they can also be
procedural principles, such as equal treatment, fairness or the right
to be heard and accommodated. To achieve their goals, actors who
argue thinly will mix other- or public-regarding arguments with
self-regarding justifications; the latter will, first and foremost, explain
a particular position taken.
In short, thin arguing is an interpersonal process, designed
to lead negotiators to understand, appreciate and feel for one
another.79 As such, thin arguing works as the crucial pre-stage to
actual negotiation in a situation of conflict. Characterized by justification (not by claims), dyadic in its communication structure and
mixing self- as well as other-regarding arguments,80 it is a process
during which actors give reasons, talk and listen to each other, and
check their initially held positions in order to construct a cooperative
atmosphere and to bolster the willingness to concede.81
In sum, both bartered and inclusive compromises can offer shortterm solutions for a conflict which actors agree to settle by way of
negotiation or majority decision; as such, both can be legitimate
agreements. Yet, the potential to legitimize a decision in need of
normative justifiability differs starkly between the two types of agreement. This is due to their different purposes mutual advantage as
opposed to mutual accommodation as well as to the different
76

Andrew Moravcsik, The Choice for Europe, Ithaca, NY, Cornell University Press,
1998, p. 24.
77
Neyer, Explaining the Unexpected, p. 28.
78
Mller, Arguing, Bargaining and All That, p. 397.
79
C. Daniel Batson and Nadia Y. Ahmad, Using Empathy to Improve Intergroup
Attitudes and Relations, Social Issues and Policy Review, 3: 1 (2009), pp. 14171, at
p. 142.
80
Thomas Saretzki, Wie unterscheiden sich Argumentieren und Verhandeln?, in
Volker von Prittwitz (ed.), Verhandeln und Argumentieren: Dialog, Interessen und Macht in
der Umweltpolitik, Opladen, Leske and Budrich, 1996, pp. 1939.
81
Reh, Consensus, Compromise and Inclusive Agreement, pp. 183ff.
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preconditions for distributive and integrative bargaining. In the next

section, I will outline why only inclusive compromise has the potential to legitimize the EU as a divided, multilevel and functionally
restricted polity.

THE LEGITIMIZING POTENTIAL OF INCLUSIVE COMPROMISE

In the comparative study of political systems, scholars have discussed

different motivations behind the acceptance of political rule and
rules; acceptance is understood as the behavioural expression of
support, while motivations are the reasons for granting this support.82
Such motivations form a complex of reasons, moral as well as prudential, normative as well as self-interested.83 Within this complex of
reasons, legitimacy relates to the moral or normative aspect of power
relationships.84 As such, legitimacy is distinct from alternative motivations, most prominently incentives driven by self-interest.85 David
Beetham identifies three conditions for legitimate political rule: conformity to established rules or legal validity; the justifiability of rules
based on the congruence between societal values and their structural
realizations; and the express consent of the governed by way of
democratic procedures.86
As argued above, the EU a divided, multilevel and functionally
restricted polity faces distinct challenges with regard to both normative and utilitarian motivations behind the acceptance of its
political rule. First, as a highly divided polity, the EU lacks the preconditions for fully fledged competitive democracy as the established
way of bringing about the express consent of the governed; in particular, it lacks a pre-political community, an effective political space
and social solidarity across national boundaries. Hence, majoritarianism is problematic to apply, because it risks creating a systemic
overlap between outvoted minorities and national borders, and
82
David Beetham, The Legitimation of Power, Basingstoke, Macmillan, 1991,
pp. 613; David Easton, A Systems Analysis of Political Life, New York and London,
John Wiley & Sons, 1965, pp. 15964.
83
Beetham, The Legitimation of Power, p. 26.
84
Ibid., p. 25; see also Christian Reus-Smit, International Crisis of Legitimacy,
International Politics, 44: 2/3 (2007), pp. 15774.
85
Beetham, The Legitimation of Power, p. 27; see also Scharpf, Governing in Europe.
86
Beetham, The Legitimation of Power, pp. 1525.

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because it requires trust in the regular alternation between government and opposition. Second, due to its multilevel nature, diverse
political systems coexist in the European polity; each system is justifiable by its citizens affiliation with a set of fundamental values as
expressed in institutions and rights. Third, given its functional
restriction, the EU lacks the legal competence and financial
resources to tie minorities in through financial compensation and
welfare payments; hence, the Union is equally challenged when it
comes to motivations for accepting political rule that are based on
incentives or self-interest.
In short, the EU needs to rely on alternative mechanisms to make
its decisions normatively justifiable and to bolster the acceptability of
supranational governance. Such alternatives have been amply discussed in the literature, ranging from increased transparency87 over
Pareto-efficient market regulation88 to deliberative forms of decisionmaking.89 In the following, I suggest that compromise has the potential to do additional legitimizing work at the supranational level, by
compensating for the lack of preconditions of competitive democracy and social redistribution, and by successfully accommodating
diversity in a divided, multilevel polity.
This potential is, however, limited to inclusive compromise; albeit
a compromise, a bartered agreement is unsuitable for legitimation
beyond offering short-term solutions to a conflict. As argued above,
bartered compromises are struck by traders in markets. Based on a
logic of competitive exchange, agreement is reached through a
process of distributive bargaining by actors who are willing to trade
concessions, who are equipped with the resources necessary to
exchange, and who feel each others threats and promises to be
credible.90 A bartered agreement will therefore be stable as long as:
(1) the advantages gained last in their agreed form; (2) no party to
the agreement acquires resources that allow her to change the deal
in her favour; and (3) the package deal remains intact (where the
agreement is composite). Condition (3) is, in turn, dependent on the
87

Adrienne Hritier, Elements of Democratic Legitimation in Europe: An Alternative Perspective, Journal of European Public Policy, 6: 2 (1999), pp. 26982.
88
Giandomenico Majone, Europes Democracy Deficit: The Question of Standards, European Law Journal, 4: 1 (1998), pp. 528.
89
For an overview see Jrgen Neyer, The Deliberative Turn in Integration
Theory, Journal of European Public Policy, 13: 5 (2006), pp. 77991.
90
Panke, More Arguing than Bargaining?.
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continued existence of conditions (1) and (2).91 All parties to bartered compromises therefore know that these agreements are temporary, are fixed to the particular circumstances in which they are
made, and can be reopened at the next opportunity.92 As such,
bartered compromises offer substantive, non-coercive solutions to
conflicts, but they have no independent procedural compliance pull.
By contrast, inclusive compromise is reached through an integrative process, where concessions are not only driven by advantages and
resources but by group goals and a valuation of cooperation itself.93
Inclusive compromise therefore has strong legitimizing potential.
Based on the recognition of difference in micro-level negotiations
and across the macro-level polity, inclusive compromise signals nondomination and increases actors basic trust in the preservation of
their core (constitutional) choices. Such recognition is crucial in a
highly divided polity where different systems of governance coexist,
and it is expressed in the process through which inclusive compromise is reached. The generous concessions of integrative bargaining
bolster actors trust in accommodation and the alternation between
issue-specific minorities and majorities, while the justification,
perspective-taking and empathic concern of thin arguing improve
actors understanding of the rationale for their collective decisions,
and for each partys positions and concerns.
Indeed, as argued earlier, an inclusive compromise is a barter
plus, with recognition being the most important additional feature.94
Through the recognition of difference, inclusive compromises
confer legitimacy on the point of view of the other side; by doing so,
such agreements signal non-domination and suggest a semblance of
equality between nonequals.95 Given the demanding preconditions
of deliberation, inclusive compromise is more likely to be reached
than consensus; yet, in the highly divided polity that is the EU, an
agreement based on the recognition of difference is also normatively
more desirable than an agreement that synthesizes positions.96
91

Reh, Consensus, Compromise and Inclusive Agreement, pp. 1889.

Albert O. Hirschman, Social Conflicts as Pillars of Democratic Market Society,
Political Theory, 22: 2 (1994), pp. 20318, p. 214.
93
Bellamy, Liberalism and Pluralism, p. 102; Reh, Consensus, Compromise and
Inclusive Agreement, pp. 188ff.
94
Margalit, On Compromise, p. 40.
95
Ibid., p. 41.
96
For a similar argument see Weiler, In Defence of the Status Quo.
92

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Inclusive compromise also has more legitimizing potential than a

bartered agreement, because it signals the willingness to rank successful cooperation more highly than the most advantageous deal
possible. The recognition of difference is crucial in legitimizing
supranational governance. Both at the micro (or horizontal) level
between negotiators, and at the macro (or vertical) level between
systems of governance, recognition gives actors basic security in the
preservation of their core choices, and therefore facilitates the acceptance of political rules and rule.
At the micro level, recognition is conferred in the process through
which inclusive compromise is reached. Indeed, as argued above,
such agreements are based on the greatest possible inclusion of all
parties interests, values and beliefs. Based on a logic of cooperation,
inclusive compromises are built through mutual accommodation.
Struck in a process of integrative bargaining, they require mutual and
generous concessions, painful even for the stronger side. Inclusive
compromise, therefore, calls for a measure of sacrifice,97 with all
sides deliberately decreasing [their] share compared to possible
agreements that [they] might have extracted.98 Sacrifices made by
the strongest negotiators benefiting either from a permanent
advantage due to material capabilities, or from an issue-specific
advantage due to asymmetrical preferences and exit options send
clear legitimizing signals: of non-domination, of commitment to
cooperation rather than competition,99 and of the possibility to trust
in reciprocity. Decision-making in the EUs Council of Ministers
can illustrate the premium placed on accommodation and nondomination in supranational governance: even where national representatives could decide by qualified majority, in 75 to 80 per cent of
cases they refrain from voting and, thus, from outvoting individual
member states or groups of countries.100
The willingness to sacrifice is built in the process of thin
arguing, which encourages actors to express their hopes and
fears and to listen to one anothers concerns, yet not lose track of real
97

Margalit, On Compromise, p. 41.

Ibid., p. 43.
99
Ibid.
100
Fiona Hayes-Renshaw, Wim van Aken and Helen Wallace, When and Why the
Council of Ministers Votes Explicitly, Journal of Common Market Studies, 44: 1 (2006),
pp. 16194, at p. 163; see also Heisenberg, The Institution of Consensus.
98

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differences.101 This process requires constant communication between

actors about their grounds for (in addition to their positions on) the
conflict; actors justify their demands and give reasons for their claims
so as to make their co-negotiators understand these demands and
claims from their points of view. Justifications can be purely selfregarding (e.g. when actors invoke the domestic political repercussions of a particular EU regulation). Yet, where communication is
geared towards increasing all actors understanding of the collective
decision, rather than towards maximizing individual gains, even selfregarding arguments must be moderated and presented at a certain
level of generality and in ways that appeal to a shareable norm of
justice or interest.102 In the EU, thin arguing dominates wherever
member states representatives negotiate, be this in everyday or constitutional decision-making. Their interaction is played out in tours de
table, during which positions are stated, explained and justified
repeatedly; these are followed up by ever more inclusive, accommodating and, accordingly, ever more complex legal and political texts.
When arguing thinly, actors build up a willingness to make and
reciprocate painful concessions through two interpersonal mechanisms: cognitively, they take each others perspective, imagining the
effect of the situation on the other, given his or her needs and
desires;103 emotionally, they express empathic concern, as an otheroriented emotional response elicited by and congruent with the
perceived welfare of someone else.104 By reducing egocentric perceptions of fairness,105 perspective-taking and empathic concern can
lead actors to moderate self-regarding arguments and claims; they
can also facilitate the search for integrative, efficient but hidden
solutions.106 Yet, perspective-taking and empathic concern can do
more: actors confer legitimacy on each others points of view by
signalling understanding and appreciation; they openly recognize
101

Batson and Ahmad, Using Empathy, p. 149; emphasis added.

Bellamy, Liberalism and Pluralism, p. 106.
103
Batson and Ahmad, Using Empathy, p. 145.
104
Ibid., pp. 1456; see also Adam D. Galinsky, William W. Maddux, Debra Gilin
and Judith B. White, Why it Pays to Get Inside the Head of Your Opponent: The
Differential Effects of Perspective Taking and Empathy in Negotiations, Psychological
Science, 19: 4 (2008), pp. 37884; Michael Morrell, Empathy and Democracy: Thinking,
Feeling and Deliberation, University Park, Pennsylvania University Press, 2010.
105
Galinsky et al., Why it Pays, p. 379.
106
Ibid., p. 379I and II.
102

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different positions and their underlying reasons; and they demonstrate a willingness to cooperate in the face of such difference. As
such, perspective-taking and empathic concern can increase parties
satisfaction with the negotiation process.107
In sum, having ones position listened to, considered and empathized with in a decision-making process can make the decision
outcome more justifiable and, hence, more acceptable even to the
party that had to concede most generously.108 The recognition
expressed in this process, combined with the greatest possible accommodation of all parties values, interests and beliefs, can increase
actors basic security in the preservation of their core choices. In
addition, the fact that the concessions made for an inclusive compromise are mutual and potentially painful even for the strongest side
makes being part of a losing minority more palatable: actors know
that the losing minority is issue specific rather than systemic, and that
they can trust in the reciprocal alternation between issue-specific
minorities and majorities, even where such alternations require sacrifice from the stronger side. Without the preconditions for majoritarianism, recognition and mutual accommodation can thus increase
the normative justifiability and, hence, the acceptance of political
decisions.
Yet, the recognition of difference and mutual accommodation not
only work between negotiators at the supranational level: they are
equally important to increase the acceptance of supranational governance by citizens at the domestic level. As argued above, one condition for legitimacy is the justifiability of political rule based on a
congruence between societal values and their structural realization.
Citizens affiliate with a set of core values, balanced and expressed in
their polities structures and rights; this balance varies across EU
member states, and citizens affiliation with the respective balance
matters crucially for domestic legitimacy.109 This means, in turn, that
citizens basic trust in the preservation of their member states core
constitutional choices must be preserved. Hence, inclusive compromise has a strong legitimizing potential at the macro level too, where
it works through constitutional compatibility. Instead of striving for
synthesis, and instead of attempting domination based on bargaining
107
108
109

Ibid., p. 383II.
Morrell, Empathy and Democracy, p. 16.
Bolleyer and Reh, EU Legitimacy Revisited.

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strength, here, too, inclusive compromise expressly recognizes the

EU as a union among distinct peoples, distinct political identities,
distinct political communities.110 Inclusive compromise thus assumes
that core constitutional choice is preserved at the domestic level, and
that different choices coexist across the European polity. Such constitutional compatibility is not only fostered by the EUs functional
restriction; institutionally, it is preserved in opt-outs for individual
member states from specific policy areas (as is the case for matters of
justice and home affairs for the UK), protocols hedging the domestic
application of norms or rules (as done by the Protocol on the Application of the Charter of Fundamental Rights for Poland and the
United Kingdom), or provisions of flexible integration through the
enhanced cooperation of a group of member states (as foreseen in
Title IV in the Treaty on European Union).

THE LIMITS OF INCLUSIVE COMPROMISE

So far, I have made the following arguments. First, given its divided,
multilevel and functionally restricted nature, the EU cannot rely on
established mechanisms of legitimation. Second, inclusive compromise differs systematically from bartered agreement with regard to
the types of concessions required, the degree of (non-)coercion, and
the transformative potential of the negotiation process. These differences stem from the process through which inclusive compromise is
reached a combination of integrative bargaining and thin arguing
which gives such agreements procedural as well as substantive
compliance pull. Third, inclusive compromise has the potential to
legitimize supranational governance more widely: recognition as
expressed in mutual, generous concessions as well as communication
characterized by justification, perspective-taking and empathic
concern builds trust in non-domination and diffuse reciprocity and
bolsters actors basic confidence in the preservation of their core
(constitutional) choices. Compensating for the lacking preconditions of fully fledged competitive democracy, the reliance on inclusive compromise can thus do crucial legitimizing work at the micro
and macro level in the highly divided polity that is the EU. Given this
legitimizing potential of inclusive compromise, I will, next, suggest
110

Weiler, In Defence of the Status Quo, p. 20.

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that the limits of reaching such agreements partly define the more
general limits of cooperation between EU member states. In what
follows, I will outline two such limits.
As argued above, the EU is, first and foremost, an arena for the
generation of binding rules beyond the nation-state. The EU is also a
multilevel polity and therefore dependent on the domestic implementation of its rules. Hence, the acceptance of supranational rule
hinges on the legitimacy of the EUs member states themselves.111
Each member state will, in turn, draw legitimacy from its particular
constitutional choice of fundamental values,112 and, more specifically, from how the triad of citizens civil, political and social rights is
balanced.113 These rights and their configuration are closely related
to the justifiability of political rule across the EUs member states.
If the EU is dependent on the legitimacy of its member states; if
citizens across political systems need to be secure about the preservation of their core choices in order to accept political rule; and if the
recognition of difference through inclusive compromise bolsters
such security, then the transfer of both policy competences and
individual rights to the supranational level has a clear substantive
limit: legitimate rule-making beyond the state must not undermine
legitimate rule-making within the state.114 Otherwise, supranational
cooperation not only risks challenging a specific but crucial facet
behind the acceptance of political rule at the domestic level, namely
citizens affiliation with a balanced set of fundamental values and
their structural realization. What is more, instead of acknowledging
and respecting the difference115 expressed in domestic constitutional
choice, supranational cooperation would expressly challenge such
choice and, as such, undermine the legitimizing potential of inclusive
compromise in a divided and functionally restricted polity. Any
leeway in adding competences and rights at the supranational level
must therefore respect one limit: it must be compatible with national
111
Scharpf, Reflections on Multilevel Legitimacy; Scharpf, Legitimacy in the
Multilevel European Polity.
112
Weiler, In Defence of the Status Quo, p. 15.
113
Thomas H. Marshall, Citizenship and Social Class, in Thomas H. Marshall and
Tom Bottomore, Citizenship and Social Class, London, Pluto Press, 1992.
114
Bellamy, The Liberty of the Moderns; Scharpf, Reflections on Multilevel
Legitimacy; Scharpf, Legitimacy in the Multilevel European Polity; Bolleyer and Reh,
EU Legitimacy Revisited.
115
Weiler, In Defence of the Status Quo, p. 19.

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constitutional choice, and such compatibility must be recognizable.116 Otherwise, further integration risks undermining the domestic balance of citizens civil, political and social rights, with the
systems normative justifiability accordingly challenged at both the
national and supranational level.
Even where constitutional compatibility is preserved at the macro
level, there are issue-specific limits to the possibility of integrative
bargaining at the micro level. Indeed, mutual concessions including those by the conventionally strong side to the conventionally
weak side117 will be granted more easily on some issues than on
others. Scholars have argued that it is easier to reach a compromise
on distributive issues, or on what Hirschman calls more or less types
of conflict, than on ideological issues, or on what Hirschman calls
either/or types of conflict.118 On the former, the difference can be
split, while the latter may involve clashes between incommensurable
identities, world views or types of claim.119 In the EU more specifically, the readiness to concede mutually and generously is crucially
dependent on who bears the costs of an agreement (at the micro
level) or of further integration (at the macro level). The mutual
concessions of an inclusive compromise are granted more easily
under two conditions.
First, where actors try to solve distributive or more or less conflicts, mutual concessions will be granted more readily and will have
a stronger legitimizing potential where the costs of agreement are
dispersed rather than concentrated, and where these costs are dispersed across rather than within national boundaries. Indeed, the
bearing of such costs signals a willingness to make mutual concessions by the greatest possible number of actors and cuts across the
predominant cleavage of the European polity. In turn, inclusive compromise will be more difficult to achieve where the costs of agreement are concentrated within national boundaries. Unproblematic
in a majoritarian system, the concessions required costly for a small
group of actors, minimally painful for the large majority come close
to the unilateral sacrifices that are so normatively problematic in the
116

Bolleyer and Reh, EU Legitimacy Revisited.

Margalit, On Compromise, p. 49.
118
Hirschman, Social Conflicts as Pillars; see also Andeweg, Consociational
Democracy, pp. 511 and 530.
119
Bellamy, Liberalism and Pluralism, p. 103; Margalit, On Compromise, pp. 48ff.
117

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divided polity that is the EU, and that are unable to serve the wider
social function of accommodation that is crucial to legitimize supranational governance.
Second, where actors try to solve ideological or either/or conflicts, mutual concessions will be more difficult to grant. However,
accommodation is possible where the costs of agreement can be
borne by the supranational system rather than by one or several
member states or by a group of actors within a member state. There
are different procedural mechanisms for achieving such systemic
accommodation, including member states constitutionally guaranteed opt-outs from specific policy areas, protocols allowing for
national exemptions from the application of supranational norms, or
closer cooperation between a group of member states. Such systemic
compensation expressly recognizes actors concerns in cases of ideological difference, without upsetting domestic constitutional choice
and without burdening individual states with the costs of agreement.
Yet, this mechanism has a clear limit: systemic accommodation is only
possible where it does not undermine the Unions constitutional
foundations; therefore, it is not an option where the functioning of
the EUs institutional framework or single market are concerned.
In sum, the limits to inclusive compromise are grounded in its
defining feature: the recognition of difference, expressed in the
granting of mutual concessions. At the macro level, the limits of
cooperation lie in the compatibility between the supranational and
the diverse national configurations of citizens civil, political and
social rights. At the micro level, issue-specific limits are grounded in
the dispersal of costs across rather than within national boundaries
(where conflict is distributive), and in the possibility of systemic
accommodation (where conflict is ideological).

CONCLUSION

This article started from the observation that compromise is a ubiquitous yet under-theorized and under-studied feature of European
integration, and attempted to shed light on the concept of compromise, on the role that compromise can play in legitimizing supranational governance and on the limits to reaching compromise in EU
decision-making and across the European polity. The article argued
that, given its divided, multilevel and functionally restricted nature,
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the EU is highly dependent on the legitimizing potential of compromise and of inclusive compromise more specifically. Inclusive compromise is distinguished from bartered agreement by the explicit
recognition of different negotiation positions (at the micro level)
and of diverse domestic constitutional choice (at the macro level); by
mutual and generous concessions that can be painful even for the
stronger side; and by a process of thin arguing, driven by justification, perspective-taking and empathic concern.
The article argued that the legitimizing potential of inclusive compromise is threefold. First, the recognition of difference in microlevel negotiations and across the macro-level polity increases actors
security in the preservation of their core choices; second, mutual and
generous concessions, in combination with perspective-taking and
empathic concern, increase actors trust in accommodation, reciprocity and the alternation between issue-specific minorities and
majorities; third, thin arguing improves and potentially transforms actors understanding of the grounds for conflict and of the
reasons behind the collective decision reached. Through these
mechanisms, inclusive compromise can contribute to responding to
the challenges of legitimizing the EU as a divided, multilevel and
functionally restricted polity. Given the legitimizing potential of
inclusive compromise, the article concluded by identifying two limits
to reaching such agreements: the possibility of accommodation at the
micro or horizontal level of governance, and the need for constitutional compatibility at the macro or vertical level of governance. The
issue-specific limits to inclusive compromise depend on whether core
constitutional choice is left intact at the national level; on whether
the costs of supranational agreement are dispersed across as well as
within member states; and on whether ideological conflict can be
accommodated by systemic compensation rather than by individual
concessions.
This article attempted to get closer to the under-studied concept
of compromise and aimed to improve our understanding of the
neglected potential of compromise in legitimizing supranational governance. In doing so, the article has raised two main questions for
follow-up research at the intersection of the empirical and the normative study of European integration. First, in order to understand
the legitimizing potential of inclusive compromise more fully, we
need to explore how exactly recognition, perspective-taking and
empathic concern play out in micro-level negotiations, and to
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investigate whether the process of thin arguing does, indeed,

increase actors willingness to concede and bolsters the perceived
legitimacy of supranational decisions. Second, in order to grasp the
limits of inclusive compromise more fully, we need to investigate
systematically whether, where and how supranational rule potentially
upsets core domestic choice, and ask how constitutional compatibility
can be guaranteed across levels in the European polity.

The Author 2012. Government and Opposition 2012 Government and Opposition Ltd