Justifying the Imperfect: Differentiated Integration and the Problem of the Second Best

• Published date: 01 June 2022
• Author: Erik O. Eriksen
• Date: 01 June 2022
• DOI: http://doi.org/10.1111/raju.12354

Ratio Juris. Vol. 35 No. 2 June (123–138)

Justifying the Imperfect: Differentiated

Integration and the Problem of the

Second Best

ERIK O. ERIKSEN

Abstract. This article deals with the problem of the second best in a politically differentiated

Europe. Drawing on Kant’s category of permissive law of public right, it establishes the missing

link between ideal and nonideal theory and then an indirect legitimation theorem. This theorem

provides tools to contain damages and unlock practices and dynamics that obstruct reforms and

lead to counterproductive outcomes. The theorem, which is equipped with a time and knowl-

edge index, awaits the formation of favourable circumstances of integration. It establishes the

conditions under which differentiated integration would be nonregressive. The theorem rules

out backsliding solutions, which undermine the European integration process.

1. Introduction

In Europe, differentiated integration (DI) is a way to keep together a controversial

political system by sectioning off particular policy areas and countries from central-

ized rule.1 Opt- outs and escape clauses have become a means of handling (or by-

passing) various forms of crises and various forms of opposition to integration. DI

is a pragmatic response to political challenges of a fundamental character, but the

consequences are not trivial. Some forms of DI involve regression and run counter to

the ideal of a united and democratic Europe. A return to a Europe of independent

nation- states would forfeit the normative achievements of the European integration

process and increase interstate dominance.

The point of departure in this article is that DI is not ideal at the same time as

integration is a duty— a “must.” Integration is a means to banishing dominance, that

is, to domesticating and democratizing international relations in Europe. It makes

the affected parties members of a unified legal order. According to Immanuel Kant

([1795] 1996), when people live close by and/or cannot avoid affecting one anoth-

er’s rights adversely, they have a duty to establish a rightful order. However, when

greater integration is not on the table, and disintegration should be avoided, there

may be reasons in favour of DI. How can DI be legitimated when it falls short of

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution

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© 2022 The Author. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

1 A version of this paper was read at the 2021 general conference of the European Consortium for

Political Research (ECPR). I am grateful for comments by Lars Chr. Blichner, Andreas Eriksen,

Christopher Lord, and Markus Patberg. The article is part of the COMPLEX project, funded by

the Research Council of Norway’s “Europe in Transition” research initiative (EUROPA).

Erik O. Eriksen

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Ratio Juris, Vol. 35, No. 2

© 2022 The Author. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

what we rightly can expect? In order to clarify this predicament, I will analyse DI

with reference to the relationship between ideal and nonideal theory and the problem

of the second best. DI raises the problem of the second best as it violates one of the core

principles of the ideal state of affairs.

John Rawls(1971) saw ideal theory as a necessary precursor to the kind of noni-

deal theory that should guide our action in the real world. While ideal theory works

out the principles that regulate a well- ordered society under favourable circumstances,

nonideal theory deals with obstacles to such a society that are owed to unfavourable

circumstances: injustice and socioeconomic limitations (Rawls2001, 13). However, the

political will may also be lacking. Under unfavourable circumstances, nonideal the-

ory would have to prescribe solutions that are suboptimal from the point of view of

ideal theory. In that case, we may encounter the approximation problem of the second

best, that is, when first- best options are unavailable, piecemeal efforts to approximate

the available elements of the ideal can actually generate new injustices and wrongs.

Nonideal theory risks being regressive, bringing about states of affairs that are inferior

to what is normatively defendable; in fact, it can generate outcomes that are worse than

the status quo.2

As the problem of the second best reveals, there is a missing link between ideal and

nonideal theory. Measures needed to make sure that departures from the ideal do

not generate counterproductive outcomes should, however, not be left to intuition.

Kant’s category of a permissive law of public right, which permits the postponement

of reform until conditions are favourable, can be seen to intermediate between ideal

and nonideal theory. By specifying this category into an indirect legitimation theorem,

this article establishes the conditions under which DI would be nonregressive. The

nonregression proviso states that no arrangements are permitted that foreseeably re-

duce the protection of basic rights, including the right to correct prior decisions, and

undermine the ideal of integration.

DI describes differences not only in sectoral and territorial dimensions of integra-

tion, but also in temporal dimensions, as is alluded to by concepts like “a Europe of

different speeds,” “Core Europe,” and the “Europe of Concentric Circles.” The latter

dimension is of particular interest, as the different forms of association have to date

been seen as interim arrangements in the advent of EU membership based on equal

rights and statuses, which equality, if only for the sake of the argument, we take to

constitute the ideal state of affairs. If these arrangements are actually stepping stones

toward EU membership, DI would not be a threat to the European project, but rather

a necessary means to its realisation under unfavourable conditions, viz., when the

requisite basis for integration is lacking.

The article begins by clarifying the core normative problem of DI. It then outlines

the indirect legitimation theorem relating to the distinction between ideal and noni-

deal theory. Thereafter, it establishes conditions of legitimacy and discusses justify-

ing reasons for DI. Lastly, it addresses the European bonum commune to be preserved,

and whether it is plausible to expect that ideal normative principles will remain un-

satisfied when it comes to European integration.

2 See Alter and Lafont 2019; Berg 2019; Brennan and Pettit 2005; Coram 1996; Lipsey and

Lancaster1956; Simmons2010; Swift2008; Wiens2016.