Describe how the different techniques can contribute to the criminal justice field. Assignment Specifics: ? 5?7 double-spaced pages of content (not counting the title page or referen

JCMS 2004 Volume 42. Number 1. pp. 23–46

© Blackwell Publishing Ltd 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

The Future of Sovereignty in Multilevel Governance Europe – A Constructivist Reading*

TANJA E. AALBERTS Vrije Universiteit, Amsterdam

Abstract

Multilevel governance presents a depiction of contemporary structures in EU Europe as consisting of overlapping authorities and competing competencies. By focusing on emerging non-anarchical structures in the international system, hence moving beyond the conventional hierarchy/anarchy dichotomy to distinguish domestic and international arenas, this seems a radical transformation of the familiar Westphalian system and to undermine state sovereignty. Paradoxically, however, the principle of sovereignty proves to be resilient despite its alleged empirical decline. This article argues that social constructivism can explain the paradox, by considering sovereign statehood as a process-dependent institutional fact, and by showing that multilevel governance can feed into this process.

Introduction

The 1990s have witnessed a revival of European studies with the develop- ment of a new stream of theorizing: multilevel governance. Inspired by in- sights from domestic and comparative politics, multilevel governance tries to

* The original and more extensive draft of this article was presented at the 43rd Annual Convention of the International Studies Association, New Orleans, 24–27 March 2002. This article is part of a national research programme ‘From Government to Governance’ of the Netherlands Institute of Government, and of the research programme ‘Multi-layered Governance in Europe and Beyond’ at the Department of Political Science, Vrije Universiteit, Amsterdam, the Netherlands. I would like to thank Jaap de Wilde, Liesbet Hooghe, Gary Marks, Jeffrey Checkel, Rens van Munster and Wouter Werner, as well as the reviewers of the JCMS, for their helpful comments on earlier drafts.

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overcome some obstructive cleavages which have haunted the academic field from its emergence, notably that between intergovernmentalism and neo-func- tionalism/supranationalism. The notion of governance attempts to straddle the erected borders between the domestic and the international, between com- parative politics and international relations, and between public and private spheres. The additive multilevel points to an attempt to encompass the seem- ingly paradoxical yet simultaneous processes of centralization (in European institutions) and regionalization (to subnational and private institutions) (Jørgensen, 1997a).1 In sum, multilevel governance entails a conception of the EU as consisting of ‘overlapping competencies among multiple levels of governments and the interaction of political actors across those levels’ (Marks et al., 1996b, p. 167). Additionally, multilevel governance pulls the private sphere into the political. Together this leads to a loss of the so-called ‘gate- keeping role’ of the state, as the conventional representation via state execu- tives is curtailed (Hooghe and Marks, 2001a).2 Hence multilevel governance eradicates the traditional distinction between domestic and international poli- tics.

Conventionally, national politics was the realm of hierarchical structures, whereas, in the international arena, anarchy used to rule (so to speak). These logics were reflected in the common conception of the all-organizing princi- ple of sovereignty. Sovereignty is what links the international arena to the domestic by combining independence from outside interference (external sov- ereignty) with authority over jurisdiction (internal sovereignty). In terms of domestic versus foreign politics, this means that the former is organized through supremacy of the government (hierarchy), whereas the latter is based on for- mal equality among governments (a lack of supremacy – anarchy). The mod- ern state system can hence be conceived as having double significance: fos- tering a distinction between domestic and international politics, on the one hand, while providing the exclusive terms of reference to bridge the divide, on the other (Caporaso, 1996; Bartelson, 1995). As such, Westphalia signifies an international ‘living-apart-together’ of states, based on the doctrine of ju- risdictional exclusivity as the defining element of their mutually recognized sovereignty. And this institution of sovereignty simultaneously provides the parameters for interaction between independent states.

In this context multilevel governance can be characterized as ‘the world turned inside out and outside in’ (Anderson, 1996, p. 135), with emerging hierarchical, authority structures outside the state for one thing, and the un-

1 James Rosenau has introduced the neologism ‘fragmeration’ to capture these ‘diverse and contradictory forces’ of localization and fragmentation, on the one hand, and centralization and integration on the other. For a most recent discussion and application to the European context, see Rosenau (2004). 2 See also Section I.

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dermining of intrastate hierarchical ordering due to circumvention of ‘gate- keeping’ for another.3 As such multilevel governance seems to challenge both the external anarchy and the internal hierarchy element of the Westphalian principle. At the same time multilevel governance theorists in fact do not dispose of states – quite the opposite, as they argue that states will not only remain players, but even key actors in European politics (Marks et al., 1995). This raises the question of how these emerging multilevel governance struc- tures influence the sovereignty of the Member States of the EU. While the focus on governance (instead of government) moves the debate on authority away from the usual conception of sovereignty as a ‘zero-sum notion’ (Rosamond, 2000), it can be wondered whether the Member States can still be considered sovereign if the locus of political control has shifted and is not exclusively at the state level any more. If so, what does this say about the principle of sovereignty? If not, how does this influence the status of state- hood in the EU?

While at first glance multilevel governance seems an attractive, indeed ‘compelling metaphor’ to characterize the EU policy process while acknowl- edging its peculiarities (Rosamond, 2000), it can be criticized for some lack of theoretical backbone (see, e.g., Jordan, 2001). In this article, attention is drawn to a specific conceptual lacuna in the mainstream multilevel govern- ance literature. It will be argued that, in the search for a handle on the multi- faceted and complex processes within the contemporary polity of the EU, multilevel governance indeed provides a challenging picture of the dispersal of authority, but suffers from a lack of scrutiny of the state concept itself. It will be argued that the multilevel governance literature considers sovereignty along positivist lines, conceiving the existence of sovereign statehood as a matter of fact. This practice is in correspondence with the conventional un- derstanding of the Westphalian constituents of supreme (internal) authority and (external) independence based on territorial exclusivity. Such an inter- pretation suggests that ‘sovereign statehood’ is essentially a descriptive con- cept, whose meaning consists of a corresponding state of affairs that can be measured and determined. Yet it is hard to reconcile the alleged core elements of sovereignty with the ‘governance turn’, with the emergence of overlapping authorities and shared competencies among a variety of actors at a variety of levels. It is ‘the complex and contradictory character of contemporary pat- terns of fragmentation and integration, including those at work in so many contemporary states, [which] often seems quite at odds with the account of political possibility expressed in the account of state sovereignty that has

3 On this notion of hierarchy, see also Section I. Of course the domestic/international politics distinction has also been challenged in the transnationalist and globalization literature.

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seemed so elegant and persuasive to the modern imagination’ (Walker, 1991, p. 446). This paradox begs for some exploration and clarification.

This article attempts to overcome the problems of state centrism by facing the discourse and analysing the dynamics behind sovereignty, rather than sim- ply considering it either as a given, legal fact, or ‘obsolete’ or ‘dead’. In order to do so, refuge is sought in constructivist approaches to international rela- tions. Such a deliberation provides an alternative and potentially more fruit- ful approach to account for the changing but prolonged status of the sover- eignty of Member States within a multilevel governance context. It reads sov- ereignty and statehood as institutional facts based on intersubjective under- standings, rather than as existing independently as ‘brute facts’ (Searle, 1995).4 For sure, this misapprehension of sovereign statehood as a natural fact and descriptive concept is not exclusive to multilevel governance approaches, but counts for the majority of the European integration literature (Rosamond, 2000; Shaw and Wiener, 2000). However, within multilevel governance it results in a more apparent conceptual impasse because of the aforementioned direct challenge to the Westphalian ordering principle of internal hierarchy com- bined with external anarchy. It should be noted that this article’s focus on states must not be read as a normative argument: neither as an idealization of ‘the state’ as the ultimate organization of political power, nor as a prediction of the tenacity of sovereign states per se. The main aim of this article is to tackle the coexistence of multilevel governance structures with the prolonged exercise of sovereignty by Member States.5

In what follows, attention will first be turned to an overview of the multilevel governance approach. There is an extensive literature on multilevel govern- ance structures in the EU context,6 but this article will for the greater part be based on Hooghe and Marks (2001a). This book is the most recent publica- tion on multilevel governance and sets out to present an overview of and elabo- rate the essential features of the approach by bringing together several strands

4 For other (calls for) constructivist approaches to EU studies, see Christiansen et al. (2001), Checkel (1999, 2001b), Checkel and Moravcsik (2001), Jupille et al. (2003), Jørgensen (1997b), Pollack (2001), Risse-Kappen (1996), Shaw and Wiener (2000), Tonra (2003), and Walters (2002), as well as special issues of the Journal of European Public Policy (1999), Vol. 6, No. 4, and Comparative Political Studies (2003), Vol. 36, No. 1–2. 5 At the same time it has to be acknowledged that this is not an innocent enterprise itself. By focusing on the state, this article in a sense helps to reproduce it. After all, theory is not neutral and facts are always theory-laden. 6 See, e.g., Christiansen (1997); Hooghe (1996b); Hooghe and Marks (2001a, b, 2003); Jachtenfuchs (1995, 1997, 2001); Jachtenfuchs and Kohler-Koch (1996); Kohler-Koch (1996a, b); Kohler-Koch and Eising (1999); Marks et al. (1996a, b, c); Scharpf (1994, 2001); Wallace (1999); Zürn (1999) and special issues of Policy and Politics (2001, Vol. 29, No. 2, and Res Publica (2001), Vol. 43, No. 1. For an international law perspective, see Bernard (2002). Besides EU-centric literature there is a wide collection on governance in the globalization literature.

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of writing.7 Special focus will be on their understanding of the (changing) nature of sovereignty.8 Some parallels are drawn with the concept of neo- medievalism in IR theory. Next, attention is turned to social constructivism to analyse sovereign statehood as an institution on the basis of Wendt (1999). While it has been claimed that constructivism need not and should not be considered terra incognita to Europeanists (Checkel, 1999), it will be dis- cussed at some length here as the focus is on the viewpoint of one particular author.9 Wendt’s analysis of identity formation on the basis of intersubjective understandings will prove to be clarifying for the analysis of sovereignty in a multilevel governance context. Approaching the dynamics of multilevel gov- ernance from a constructivist angle enriches our understanding of sovereign statehood within EU Europe.

I. Multilevel Governance and Sovereignty: The Positivist Puzzle

As mentioned above, multilevel governance tries to move beyond the inter- governmentalism–neofunctionalism/supranationalism debate by presenting a new ‘in between’.10 Focus is on providing a better description of the ‘nature of the beast’ (Risse-Kappen, 1996).11 As such attention is moved from the process of integration (‘where do we come from, where do we go’), to the subject itself: the European Union as a complex and dynamic institution. Con- sequently, it has changed position from explanandum to explanans (Jach- tenfuchs, 2001; Caporaso, 1996). Rather than explaining the EU and Euro- pean integration, their existence is taken as a (social) fact and attention is shifted from process to polity. As such the alleged sui generis character of the institution is kept in place.

7 A new edited volume, which brings together leading scholars on this subject, is Bache and Flinders (2004). 8 In addition, this discussion will be based on Marks et al. (1995), which focuses on the influence of European integration on (the concept of) the state. 9 Alexander Wendt is considered one of the key figures in constructivism in IR theory, and his book can be considered one of the most extensive elaborations of social constructivism (Smith, 2001; Paul, 1999; cf. Guzzini, 2000). However, it should be noted that this book is not by definition representative of other constructivist approaches, nor has it been received without criticism (see, e.g., the forum in Review of International Studies, 2000, Vol. 26, No.1, and an excellent review by Kratochwil, 2000). 10 For a critical discussion of this attempt to provide an intermediate position, see Neyer (2003). Rejecting this intermediate position, George (2004) traces multilevel governance as a revival, the ‘more modern and sophisticated version’, and a substitution of neofunctionalism. 11 Jordan (2001) accurately attributes this phrasing to Donald Puchala (1972, p. 267), who opens his pioneering article on international integration with the story of the blind men and the elephant, and the lively debate amongst the former to determine the nature of the beast they are ‘facing’. The description of the ‘European beast’ Puchala comes up with – he calls it a concordance system – bears a striking resemblance to the contemporary multilevel governance analyses (Jordan, 2001; Rosamond, 2000). Unfortunately this link is left undiscussed in most multilevel governance literature. For a brief discussion of Puchala’s model, see fn. 13.

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Drawing on a wide collection of literature on multilevel governance, Hooghe and Marks (2001a, pp. 3–4) have distilled what they consider its three characterizing elements. First, rather than being monopolized by national gov- ernments, decision-making competencies are shared by actors at different lev- els. As such, supranational institutions have become actors in their own right, playing an independent part in policy-making (rather than functioning merely as agents of national governments). Second, a new mode of collective deci- sion-making has emerged, similarly resulting in loss of control for national governments. Third, the traditional separation of domestic and international politics has been undermined because of transnational associations. Overall, one can speak of a tripartite shift of authority away from national govern- ments: upwards, as a most direct result of European integration; downwards, because of subnational empowerment; and sideways to, for instance, public– private partnerships.12 Accordingly, states are only one among a variety of actors influencing decision-making at a variety of levels, and do not by defi- nition have a final say.

Thus multilevel governance comes down to the observation that, contrary to the claims of intergovernmentalism, supranational institutions increasingly have an independent impact on policy-making within the jurisdiction of Mem- ber States. Subnational and local governments have gained in importance too, resulting in ‘imperfect gate-keeping’ by national governments between what used to be the separate arenas of domestic and European politics. The tradi- tional lines of communication and representation via state executives have been cut back, as multilevel governance opens up multiple points of access for interests, thus blurring the clear-cut separation between domestic and in- ternational politics. Indeed, these arenas are claimed to have become almost seamless in the EU context (Hooghe and Marks, 2001a, pp. 28, 78). What clearly distinguishes multilevel governance from supranational approaches, however, is that it does not regard the EU as (developing into) a state. The idea is not one of governance above the state (which would mean a reconsti- tution of the state with all its constituents on a higher institutional level), but rather of governance beyond the state (Jachtenfuchs, 1997). That is, ‘beyond’ in its ‘inclusive’ sense, as ‘more than/besides the state’ (rather than in its mean- ing of ‘past’, which would connote the obsolescence of the state).

12 The entanglement of public–private relationships is central in the analysis of EU politics as ‘network governance’, in which ‘[p]olitical reality is held to be depicted far more accurately in terms of a network that can trace the tight, compact patterns of interaction between public and private actors of the most varied nature and at the same time able to make clear that we are not, in fact, dealing with a set of pre- or sub- ordinate relationships, but instead with a bargaining process between strategies of action being pursued by mutually dependent, but at the same time autonomous, actors’ (Kohler-Koch, 1996b, pp. 369–70; see also Kohler-Koch and Eising,1999; and Jachtenfuchs, 1995, 2001). Recently Hooghe and Marks have also included this move ‘sideways’ in their analysis (Hooghe and Marks, 2001b).

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Marks and Hooghe distance themselves most explicitly from intergovern- mentalism, contrasting multilevel governance with state-centric approaches (see, e.g., Marks et al., 1995, 1996a). It should be noted, however, that de- spite this juxtaposition and notwithstanding the terminology of governance, multilevel governance is still a statist approach. After all the state is not only regarded as one of the relevant actors, but is still a key actor in European policy-making. Risse-Kappen’s remark that multilevel governance should not throw the baby out with the bath water, as intergovernmental decision-mak- ing is not completely abandoned in EU politics (Risse-Kappen, 1996, pp. 62– 3), thus seems a bit premature. Multilevel governance does not by definition rule out the option of interstate negotiation – it only means that this is not the only and inviolable method of policy-making. Theoretically, too, the state is still the main actor from which all the others are conceptualized, be it down- wards, upwards or sideways. For instance the role of transnational actors is interpreted as a movement sideways, away from the state. At the same time this theoretical point of reference indicates that, according to the multilevel governance literature, the state is no longer considered to be the only signifi- cant actor and is indeed weakened by European integration. This is, amongst other things, related to the fact that the state is not a unitary actor. In multilevel governance a distinction is made between the state as an institution and state executives, who pursue their own interests – which do not by definition coin- cide with so-called national interests (however defined). Moreover, the state as the main actor is now involved in a network or hierarchy of complex inter- relationships at the international (read EU) level, as it is in domestic politics (Marks et al., 1995).

Before moving on to a discussion of Hooghe and Marks’ notion of sover- eignty, it should be noted that the terminology of hierarchy in the interna- tional system can be misleading insofar as it suggests some sort of linear, pyramid-like structure of sub/supra-relations, while multilevel governance by definition does not consist of such clear-cut and top-down relationships. The traditional hourglass model of nested arenas, with the state as gate-keeper at the floodgate, has so far not been replaced by a pyramid structure on top of the state (akin to a federalist structure). The authority structures seem far more complex, flexible, cross-cutting networks of governance, far more post- modern if you wish (see Wallace, 1999; Ruggie, 1998). Thus ‘hierarchy’ in the multilevel governance context should be interpreted in the sense that it challenges the anarchical character of the international system – hence in terms of Waltz’s (1979) anarchy versus hierarchy dichotomy. Hooghe and Marks (Hooghe and Marks, 2001b; 2003; Marks and Hooghe, 2004) indeed distinguish between multilevel governance-visions type I and type II, with the latter connoting a patchwork of polycentric authorities (far from hierar-

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chical) and the former coming close to federalism (hence more hierarchical, with authority moving both upwards and downwards). They emphasize that these types should be considered distinct, but not mutually exclusive. In fact, both types can be located in the contemporary EU.13

Overall, multilevel governance seems to combine insights from intergov- ernmentalism and supranationalism. But as it appears to present something in between, rejecting the ‘either–or’ discussion with interstate bargaining and transnational coalition-building as mutually exclusive options (Risse-Kappen, 1996) and regarding the EU as an intermediate arrangement in its own right (Anderson, 1996), where does it stand on the issue of sovereign statehood? In the early contributions to European studies, the sovereignty issue was rela- tively straightforward. Even though in principle both intergovernmentalism and supranationalism have a statist focus, their appraisal of it is rather diver- gent. Intergovernmentalism argues that integration is merely an institution- alization of close co-operation between Member States, who consciously give and take bits and pieces of their sovereignty (in areas of ‘low politics’) in order to improve the promotion of their national interests, including the pro- tection of their sovereignty, in areas of ‘high politics’. Along these lines the EU is considered nothing more than an international regime.14 European inte- gration then amounts to just a set of interstate bargains that consolidate the state system and strengthen individual states (see, e.g., Moravcsik, 1994; Milward, 1992). Supranationalism, on the other hand, sees European integra- tion as an ongoing process which has progressed beyond the control of the Member States, leading to a loss of sovereignty and a ‘hollowing-out’ of the state (Rhodes, 1994, 1996) with, as ultimate outcome, the development of a suprastate structure – or, simply, a new state.

As multilevel governance supposedly is located in between these ap- proaches, what kind of (sovereign?) state do Hooghe and Marks conceive as being compatible with the transformation of interstate anarchy through the development of hierarchical structures beyond the state? Can sovereignty be something in between too?

13 Now we can look briefly at the parallels between multilevel governance and Puchala’s conception of the ‘new descriptive model of the international integration phenomenon’ (Puchala, 1972, pp. 268–9). In order to do so, consider the central elements of the concordance system he identifies: (1) ‘states are among the major component units of the system, and national governments remain central actors’ (1972, p. 277); however (2) ‘[they] are not the only important factors, [and concordance systems] may include actors in four organization arenas – the subnational, the national, the transnational and the supranational’ (1972, p. 278); (3) ‘there is no prevailing or established hierarchy or superordination–subordination relationship among the different kinds of actors in the system’ (1972, p. 278); and (4) interaction processes vary with different issue areas – and are highly bureaucratized (1972, p. 279). 14 In Krasner’s (1983, p. 2) well-accepted definition, a regime is a set of ‘implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of international relations’.

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Multilevel governance theories are directed at providing an overall picture and analysis of power structures at different stages of policy-making, offering a ‘sophisticated descriptive metaphor’ of the EU as a type of polycentric pol- ity (Rosamond, 1999). The focus of attention for Hooghe and Marks is indeed actual authority, rather than formal competencies. This also counts for their notion of sovereignty. While recognizing sovereignty as a core element of statehood (to which characteristics like centralization, functional differentia- tion, mediation of internal and external affairs are added), they explicitly re- ject a minimalist Weberian conception of sovereignty as a monopoly on the legitimate use of force. For this would mean that Member States uphold ‘ulti- mate sovereignty’, as they still assert a monopoly on use of force within their respective jurisdictions. The EU does not dispose of an army or police force to enforce compliance with EU law and policies. Coercive control over popu- lations remains with states. Hooghe and Marks insist that, for the sovereignty question, political and economic sanctions should be taken into consideration too, as these constrain Member States and their room to manœuvre (Hooghe and Marks, 2001a, pp. 5–6). Thus they implicitly reject the view that sover- eignty is preserved, for this does not square with what they call the ‘empirical realities of politics and political control in Europe’ that are at the centre of their analysis (Marks et al., 1995, pp. 2–3).

In a similar manner they reject a reading of sovereignty along formal, leg- islative lines, as they criticize state-centric approaches for focusing solely on legal authority as the decisive resource, whereas attention should be paid to a more diverse collection of resources, including information, expertise, legiti- macy and the like. They also defy the intergovernmentalist argument that states are still in control because they are the sole parties to treaties. This might be the case, they argue, but Member States have lost exclusive control over the process of treaty negotiation and ratification. Moreover, treaties are not the sole determinants when it comes to institutional exercise of competencies (Hooghe and Marks, 2001b, pp. 6–8; Marks et al., 1995, pp. 5–11).

Rather than focusing on monopoly of force or formal authority, Hooghe and Marks pinpoint political control as a core-defining element of sovereignty. This control is considered sovereign when it exists independently of an exter- nal power or body (Marks et al., 1995, p. 10). Individual states cannot be said to have sustained their former authoritative control over individuals in their respective territories now that important areas of decision-making have been shifted to supranational institutions, hence diluting sovereignty and weaken- ing the state. Nevertheless, Member States remain ‘deeply entrenched in the EU and play the major role in determining the basic institutional set-up’ (Hooghe and Marks, 2001a, p. 45) and national state actors still command significant relative power, compared to their European, transnational and

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subnational co-actors. To date, national state sovereignty has not disappeared to make way for a European sovereign state.

This alludes to how Hooghe and Marks do not seem to be able to reconcile (and in fact pay little attention to) the paradoxical developments of the weak- ening of the state in the course of European integration, on the one hand, and the prolonged existence and continuing importance of the state as sovereign actor, both domestically and internationally, on the other. This was not the aim of their project either, but it still constitutes a legitimate question. Hooghe and Marks do reject reification of the state, by advocating the acknowledge- ment of states as social institutions, varying in the degree of differentiation from their environment, as well as in the degree to which they may (and can) act coherently.15 In this line, they suggest that ‘[i]f states are viewed as sets of commonly accepted rules that specify a particular authoritative order, then one should ask how such rules may change over time, and whether and how they will be defended’ (Hooghe and Marks, 2001a, p. 74, emphasis added). This seems to connote a conception of Member States as regime-like entities in the context of the EU. Yet, with the advance of institutional features way beyond the original design, and the development of a huge and extensive body of shared norms and commonly accepted rules and decision-making proce- dures, the EU is more than just a regime. It is at the very least a ‘saturated regime’, founded on the core institution of the ‘embedded acquis communautaire’ (Christiansen et al., 1999, p. 539). Besides, with a sole focus on rule-bound behaviour, and the assumption of states as self-interest maxi- mizing actors (hence with constant identities and interests, see Krasner, 1983), regime theory holds little promise when it comes to clarifying ongoing trans- formation in the relations between Member States and international institu- tions, and emerging multilevel governance structures.

Hooghe and Marks do not try to answer this self-posed question. Their focus remains first and foremost the locus of political power – when the chips are down, which actor is ‘in control’? Everything revolves around (a limita- tion of) the capacity to determine policy outcomes. They examine this

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