Differentiated integration and the problem of the second best

Differentiated integration (DI) in Europe is a puzzle from the point of view of legitimacy. On the one hand DI, is associated with illicit rule, with dominance, as people are subjected to laws, the making of which they cannot influence on an equal basis. Some forms of DI are in breach with the principle of autonomy; of equal membership in a self-governing republic. On the other hand, DI allows for cooperation even when there is disagreement. DI enables cooperation in specific fields, lower transactions costs and reap some of the benefits of European public goods. When DI also lends support to a legally integrated Europe, there may a legitimation basis for it. When more 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 what we rightly can expect? This concerns the relationship between ideal and nonideal theory, which however raises the problem of the second best. This problem appears when real world reforms prescribed by ideal theory violates one of the fundamental principles of the ideal state of affairs. As the problem of the second best reveals, there is a missing link between ideal and non-ideal theory. Kant’s category of permissive law of public right, which permit the postponement of reform until conditions are favourable, can be seen to intermediate between ideal and non-ideal theory. It justifies delays but not status quo. By specifying this category into an indirect legitimation theorem, this paper establishes the conditions under which DI would be non-regressive. The non-regression proviso states that no arrangements are permitted that foreseeably reduce the protection of basic rights including the right to correct prior decisions and preserve the normative goal of integration, which is required by ideal theory.