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The EU and Post-National Legitimacy
Erik Oddvar Eriksen* and John Erik Fossum**
ARENA, University of Oslo
Abstract
Much of the research on the legitimacy deficit of the
EU is premised on the notion that pre-political elements
such as a collective identity are needed to bring about
social and political integration. A community-based sense
of attachment provides the necessary basis for winners to
compensate losers, and is required for majority voting to
work. Save such elements, the prospects for wider
European integration seem rather bleak. The deliberative
perspective focuses on the manner in which integration is
fostered by legal procedures and communicative processes
between and among contestants, thus enhancing shared
understanding and consent. The EU is a non-coercive and
consent based system where unanimous voting procedures
coincide with more complex procedures and processes to
foster democratic legitimacy. The basic structure of the
EU is derived from the structure of governance already in
place in well-developed democratic states. The idea of
the democratic Rechtsstaat yields the standards of
assessment. However, the abstraction needed for
legitimate post-national integration depends upon the
institutional means whereby human beings are actually
addressed as citizens of the larger political order.
Introduction
The EU has, within a remarkably short period of time,
emerged into a far-reaching political entity, in
territorial, functional, and legal terms. Its rapid
growth and development has hardly been matched by a
corresponding consensual understanding of what type of
entity this is, nor how its democratic quality can be
assessed. It is quite clear that its depth and breadth,
and its ability to act along a number of important
dimensions, are hard to comprehend if assessed merely by
means of an `economic' notion of integration. This
notion, however, is still the one that dominates
assessments of the EU, whether such are performed by
analysts or by decision-makers. The EU is conceived of as
a functional organisation that offloads and relieves the
nation state of difficult tasks. It is the performance of
the system, its ability to procure service and solve
problems for the Member States that are seen to provide
the basis for its legitimacy. In other words, it is the
results for the Member States that count, a view of
present-day EU that is held by intergovernmentalists,
economists and technocrats alike. In this regard neither
democracy nor a common identity at the European level is
required, as national democracy is the necessary source
of legitimacy.
However, this kind of indirect legitimation is
insufficient to account for present-day EU. This is so
because it has become an entity that is more than a mere
appendix to the Member States and that also has a far
more profound effect on the Member States than for
instance intergovernmentalists propound. Its impact on
the citizens, the consumers, the workers, the clients,
and the producers as well as the nation states is
profound. Through measures aimed at redistribution,
through regulation of social, environmental and health
policies, and through police and judicial co-operation,
the EU affects the daily lives of Englishmen, Germans,
Belgians and Danes and increasingly central and Eastern
Europeans, as well. The `direct effect' principle of EC
law, premised on the notion of EC law as `higher'
European law (that is measures within the first pillar)
profoundly affects the Member States, and the European
Court of Justice (ECJ) claims competence-competence.
The indirect or derivative model of
legitimacy is premised on the Member State as a
legitimate site of authority. The EU's broadened and
deepened scope of action and closer and more direct links
to the citizens of the Member States contribute to a
massive transformation of the Member States. The
democratic legitimacy of the Member States cannot be
established independently of the EU, because the EU and
the Member States have become so deeply enmeshed that the
pattern of legitimate authority in the Member State is
also transformed. The Member State can therefore no
longer serve as the source of its own legitimacy,
independently of the EU. [1]
The polity implications are clear. The EU is not an
international regime nor is it an international
organisation. It is a polity with distinct political
goals and objectives. Further, the principles,
organisational and institutional structures, and action
programmes, associated with present-day EU, an entity
that established the EMU and is currently involved in
preparing for enlargement to the East, require direct
legitimation. There was a time when it was perhaps
correct to talk of indirect legitimacy but that time has
passed. Now the legitimacy of the EU has to be based on
something else and more than the democratic authority of
the Member-States.
How can this be? How can the EU obtain democratic
legitimacy? Can decision-makers expect respect for
collective decisions, when the addressees of the law are
so far removed from the authors of the law? There is no
European demos and no genuine European-wide public sphere
or truly European political parties. The absence of such
entities, which are held to be basic requirements for
democracy, makes the prospect for democracy at the
European level rather bleak. However, not only
institutional defects and the absence of a common
identity, but what also may be seen as an overly
restricted conception of democracy itself, produce such pessimistic
outlooks. There are different ways of explaining
integration – integration that is democratically
realised and not merely enforced.
The intellectual positions that continue to dominate
the research on integration, informed by instrumental and
functional outlooks, hold that pre-political elements
such as a collective identity, common evaluations and
common interests, are needed to bring about social and
political integration. Save such elements, the prospects
for wider EU integration are seen as rather bleak. The
discourse-theoretical or deliberative perspective on the
other hand, focuses on the manner in which integration is
fostered by legal procedures and communicative processes
between and among contestants, so as to enhance shared
understanding and consent. It is increasingly recognised
that some of these elements are present in the EU and
there is a need for a clearer understanding of what these
are and how they affect and shape the integration
process.
In this article we proceed by addressing the question
of post-national legitimacy from a discourse theoretical
point of view. Our point of departure is the strong
connection between nation and democracy in mainstream
political theory and the manner in which democracy is
seen to rest on a set of pre-political values and the
institutional makeup of homogenous nation states. This
strong connection makes it all but impossible to
comprehend already existing traits of post-national
legitimacy in the EU. Is there any possibility at all for
the EU to achieve popular legitimacy? First we briefly
discuss some deficiencies in the prevailing perspectives
on the question of the legitimacy of the EU. Then we
clarify what is meant by post-national legitimacy.
Thereafter, we discuss how well this conception applies
to present-day EU. The emphasis is on procedural and
structural aspects. In the final section, we present the
EU as a fledgling non-coercive democratic system and
argue that the onus on consensus is a precondition for
legitimate governance in Europe.
Non-majoritarian sources of
legitimacy
Instrumental and functional outlooks and their
derivatives provide widely different conceptions of the
EU, qua polity. [2]
However, generally speaking, they share the notion that
pre-political elements such as a collective identity,
common evaluations and common interests, are needed to
bring about social and political integration. Without
binding norms or shared values societal co-operation can
not come about and without such it is not possible to
explain order as the result of co-operation between free
and equal citizens. Functional interdependence and
interest accommodation are inherently unstable, as actors
will opt out of co-operation whenever they are faced with
a better option. Interests make parties friends one day
and enemies the next. [3]
Therefore, an order cannot be reduced to the pursuit of
self-interest or to the requirements of functional
adaptation. [4] As
interests generate unstable outcomes, extra-material
elements - norms or values - are required to motivate
collective action. Some must contribute more than they
receive - some have to pay for the misfortune of others -
in order to realise collective goods, i.e., goods that
cannot be reserved for the ones who produce them. In
principle, compliance with obligatory norms, which tell
what is a right and just course of action, is required to
resolve collective action problems and these can
themselves not be reduced to optimisation: Social norms
generally do not establish pareto-optimal solutions
– they possess reality and autonomy. [5]
People, then, need to regard each
other as neighbours or fellow countrymen, or brothers and
sisters for solidarity and collective action to come
about. Hence the search for non-majoritarian sources
of legitimacy in the EU. Political integration does
require a sense of belonging. A sense of solidarity and a
common identification makes for patriotism or `love of
country'. Albeit patriotism is not synonymous with
nationalism, this type of political integration is held
to be the achievement of the nation. The nation, due to
its deeper ties of belonging and trust makes possible the
transformation of a collection of disjunct individuals
and groups into a collective capable of common action. [6] In addition, for
democracy to prevail, such a collective must be made up
of equals, as citizenship implies the ability to rule
over one's equals and to be ruled in turn. [7]
A sense of community attachment - a
we-feeling - provides the necessary basis for winners to
compensate losers, and is required for majority voting to
work. Majority rule is only a legitimate mechanism of
governance when it rests upon approved territorial bounds
and prior assumptions about the unit. One cannot hold a
vote on who are the people, or who form the demos,
because this is to presume the answer to the very
question that is to be determined. The collectivity, for
which the majority rule operates, must be decided by a
prior choice. [8]
This is exactly what is at stake in the EU, as there is
no such collective identity and no common set of European
values that provide a sense of community attachment and
that can be readily drawn upon to settle grievances:
Representative institutions and
parliamentary majority rule work well and provide for the
democratic legitimatisation of government only under the
condition that they are based on a collective identity
called `the people' or `the nation', united by a common
language, a common culture, common traditions. Such a
'collective identity' is lacking in Europe, and will be
lacking for a long time to come. [9]
Should the EU then be seen merely as an
intergovernmental body and not as an emerging political
union, and as something different from the vision
entrenched in the Treaties, that of a peoples' Europe?
Consensus democracy
The complex nature of the institutional arrangements
within and across the Member States, the linguistic and
cultural diversity of Europe, and the absence of a
European wide community feeling strongly delimit the
possibility of legitimate majority decisions on
politically important issues. At present, at least, the
resources required for collective action and
redistribution are not available at the supra-national
level. That is why for example, Fritz Scharpf opts for
what he terms output-oriented legitimation. In
this perspective the veto-power of all participants in
intergovernmental relations makes for legitimation in
itself, as parties will not consent to decisions that are contrary to
their interests. Only decisions that no one will find
unprofitable – pareto-optimal solutions – or
that will make parties worse off if not accomplished will
be produced, and hence lend legitimacy to international
negotiations. [10]
Scharpf opts for a position on the EU as having to rely
on output-oriented legitimacy, which is government
“for the people” not “by the people”
and which is based on interest rather than on identity. [11] The EU then
should be conceived of as merely a problem-solving agency
which by itself and its outputs creates legitimacy:
“What is required is no more than the perception of
a range of common interests that is sufficiently
broad and stable to justify institutional arrangements
for collective action.” [12]
It is the question of “... policy choices that can
be justified in terms of consensual notions of the public
interest.” [13]
Several objections to this line of reasoning may be
presented.
First, functional results themselves are in need of
legitimation. As already noted, extra-material interests
are required in order to co-ordinate action and solve the
problem of collective action.
Second, in modern pluralistic
societies it cannot be taken for granted that people
agree on what these norms are; i.e., common interests,
even a minimal set of material interests - a
consensual notion of the public interest – can
not be taken for granted. Since the early 1990s, in
particular, the debate on the EU has been marked by
dissatisfaction and opposition to the integration process
and to the elitist and technocratic structure of
governance. [14]
There is a cry for more openness, transparency and
participation. The debate on enlargement makes clear that
there are many goals, needs, interests, entrenched rights
and outcomes over which preferences differ. Then the idea
of a prevailing common interest is at best illusionary,
at worst technocratic, as this idea by itself will
justify the absence of popular participation.
Third, negotiations are not
merely bargaining processes in which given preferences
and available resources determine the outcomes. A given
outcome is not solely a stricken bargain between sectoral
and partisan interests and dependent on the players'
resources. It can also be the result of arguing. A lot of
deliberation, negotiation, vindication and justification
actually takes place in regulatory agencies such as
committees, as well as in parliamentary and
non-parliamentary sessions, and decision making bodies. [15] Negotiations in
the Council are also markedly consensual. One survey of
the Council revealed that only approximately “...
one in four decisions are contested; only one in seven
attract negative votes as distinct from only abstentions;
only one in sixteen attract more than marginal
opposition...”, although many of the topics dealt
with were technical in nature. [16]
Christopher Lord notes that “... resort to explicit
majority voting is often viewed as something of a
political failure” and what is more, the
undertakings and procedures employed prior to
decision-making indicate that the EU “... practises
a kind of `extreme consensus democracy'”. [17]
Fourth, theoretically speaking,
agreements may be of different kinds and of different
qualities. An agreement may be merely enforced or it may
be nothing more than a mere compromise, as we learn from
bargaining theory - it is those controlling the most
resources that win. [18]
In these cases actors have different reasons for
consenting. Another possibility is that decisions are
made in accordance with a prevailing goal consensus, and
without serious debate. Actors may justify their consent
by appeal to tradition, necessity or pure opportunism.
However, agreements may also be the result of a
deliberative process in which the power of argument is
decisive, which then ideally produces a qualified
consensus. In this case, the contestants are not merely
persuaded or led to accept a proposal but are convinced
of its reasonableness and may defend it argumentatively
in first person singular. They have identical or at least
mutually acceptable reasons for their consent. [19] It is therefore
necessary to distinguish between
- a compromise, which is the outcome of
bargaining processes and which is only indirectly
legitimated, i.e., through the procedures that set the
terms of a fair contest;
- an actual or factual agreement that is
produced by adherence to standard operating procedures,
conventional norms and shared values, and is often
understood as pragmatic or solely based on functionality;
- a consensus, which is the result of
communicative rationality - contestants have reached an
agreement by examining each other's standpoints in a
reason giving process.
The latter is fundamental to democratic legitimacy, as
it is, in principle, the result of deliberative processes
where everybody has the opportunity to have his/her say.
The rationale for this latter category of agreements is,
first, that policy-making bodies contain not only rules
governing bargaining and voting processes, but also rules
and procedures that render deliberation possible. This also applies to the
institutional and procedural system set up in the EU. It
no doubt is a bargaining system. But the EU has also
established procedures both for securing broad debates as
well as for reaching consensus in institutional settings
– in councils, committees, panels, etc. There is a
clearly stated obligation to provide justifications and
there are dense networks of communication, which help
ensure such. [20]
In addition, critical scrutiny, judicial review and
openness [21]
compel decision-makers to act according to acceptable
– publicly justifiable - criteria. [22]
The second rationale for this
category of agreements is that there is a need to clarify
precisely which conditions of fairness, that bargaining
and power relations presuppose and have to comply with,
in order to claim legitimacy. Arguing helps clarify which
kinds of agreements and common understandings on issues,
goals and procedures that are necessary for log-rolling,
bargaining, voting, and so forth to come about and to be
deemed legitimate. A compromise must be justified and
thus requires consensus-oriented arguing. The choice of
these formal decision-making mechanisms must be argued
for, [23] and
this testifies to the more fundamental status of arguing
as compared to bargaining and voting. It is thus
necessary to take a closer look at the ways in which
decisions are actually made - by whom and how, the
mandates, procedures and constraints in place - in order
to conclude positively on which mode of interaction is
actually taking place. We cannot assume but need to
establish through empirical research whether strategic
bargaining (which intergovernmental and rational choice
inspired approaches highlight) is actually taking place,
and whether a consensus is presupposed or actually shaped
in the process. These observations have important
implications for how we conceive of the EU in polity
terms and for the question of the EU's legitimacy.
Towards a supranational polity?
In order to understand the nature of the political
system in the EU, in particular its democratic quality,
it is necessary to supplement instrumental and functional
outlooks, because these perspectives consider democratic
legitimacy as largely irrelevant or, more interestingly,
conceive of legitimacy in terms of problem-solving
effectiveness only. Functionalism is problematic because
the process of integration is seen as driven by
spill-over: unintended consequences stabilise the system
and make for legitimacy. Intergovernmentalism [24] sees actions as
driven by self-interest - exogenous preferences –
and it is the performance of the system that ensures its
legitimacy. When goals are achieved efficiently and when
the given interests or preferences of the Member States
are satisfied, some sort of equilibrium is reached and
legitimacy is produced. However, such equilibria are not
easy to discover, as some states give much more than they
receive. [25]
These perspectives on integration
provide us with an incomplete theoretical basis for
addressing the fundamental questions of order: What keeps
the Union together? What are the integrative forces? Why
does the EU evoke popular support at all? The problem of
economic explanation relying on egoistic actors
maximising their interests or preferences is that
interest maximisation makes the social order unstable,
hence “Hobbes' problem of order”. The problem
is of how rational egoists can co-operate. [26] Without a central
authority with the necessary (physical) means to enforce
compliance, co-operation will not come about. Generally
speaking, established theoretical frames of reference
associated with instrumental modes of rationality appear
incomplete to explain integration in non-hierarchical and
non-coercive co-operative settings. No Member State is
capable of dominating the EU. This is, briefly stated,
the general background which warrants the quest for
another theoretical frame of reference to guide the
research on European integration.
Approaches to the EU that highlight
its supranational features conceive of the process of
polity formation, as something beyond the control of
national governments. Most of the theoretical approaches
acknowledge that the EU has supranational features,
although they vary considerably in the assessment of the
role and importance as well as emergence of such. Some
perspectives, notably discourse theory but also new
institutionalism in political science, [27] assert that the
supranational character of the EU has to be explained by
something else than Member State preferences and that the
processes involved are not merely instrumental or
functional. An explanation of the emergence of the EU as
a supranational entity can not rely on the usual concept
of state power, as the EU does not possess the required
means, such as monopoly of violence and taxation and
majority vote, to enforce its will. Neither its external
nor its internal order is fixed. Reciprocity and
mutuality are features that mark relationships in the EU.
The voluntary and communicative aspects of the EU have to
be brought to the fore in the analytical endeavour of
explaining legitimacy in the EU. This calls attention to
democracy as a legitimation principle because only the
decision making process in itself can lend legitimacy to
outcomes when values, shared norms, and collective
identities are lacking. This forms the backdrop for the
assumption that integration takes place through
deliberation.
Integration through deliberation
The mainstream perspectives on the EU claim that
integration may occur through strategic bargaining or
through functional adaptation. These perspectives have
placed inadequate emphasis on the role of deliberation in
fostering integration. This is not akin to saying that
mainstream accounts fail to acknowledge that there is
deliberation in the EU system. [28]
In specific examples this is acknowledged: “It is
interesting to note that there is no general
requirement to give reasons in the law of most Member
States, so that these Community provisions [Article 190
of the Treaty of Rome and Articles 15 and 5 of the Treaty
of Paris] were, and to some extent still are, not only
different from, but in advance of, national laws.” [29] But if we are to
account for the importance of deliberation in fostering
integration as well as understand consent-based
integration at all, we need a theoretical framework and
attendant standards of assessment that can do precisely
that. [30]
In democracies, only deliberation can
get political results right as it entails the act of
justifying the results to the people who are bound by
them. Justification may take different forms. The concept
of communicative rationality sheds light on speech acts,
which involve actors attempting to achieve mutual
understanding. Parties try to talk themselves into
consensus by mutually respecting prevailing norms and
validity claims. [31]
By arguing in relation to inter-subjective, ideal
standards of rightness, participants can reach
agreement and an independent base for judging the
reasonableness of choices. Arguing, then, is the
procedure for redeeming validity claims. In other words,
public deliberation that takes all interests and
viewpoints into consideration is a way to find out what
is just or fair.
In this perspective, rationality
does not solely designate consistency or preference
driven action based on calculus of success, nor merely
norm-conformity or accordance with entrenched standards
of appropriateness, but rather reason-giving: when
criticised plans of action can be justified by
explicating the relevant situation in a legitimate
manner. [32] That
is, communicative rationality designates the possibility
of publicly defending a course of action. This is so even
though appeals to moral norms in real discussions are
liable to deception, the fact that parties at least are hypocrites
– they have to pay homage to norms in order to
achieve agreement – testifies to the importance of
norms. [33]
Consent-based integration depends on the alteration,
not merely the aggregation, of preferences. At least one
of the contending parties must change his/her opinion in
order to reach an agreement in a voluntary scheme of
interaction. That is to say a scheme where no one is in
the position to impose his/her will on others.
Integration then may occur through deliberation, which
turns on the process of giving reasons and examining the
arguments that are put forward. Stability depends on
learning and alteration of preferences in case of
conflict, which in turn require reason giving including
justification of action plans and impartial conflict
resolution processes. In this regard we may talk of moral
learning, as it is not solely based on experience,
but on arguments of a certain quality, i.e., arguments
pertaining to what is fair, in the public interest or
promotes the common good. Deliberation, when properly
conducted, ensures communicative processes where the
force of the better argument sways people to harmonise
their action plans. Participation in co-operative
processes is supposed to contribute to such a shift as
actors have to argue in relation to inter-subjective
standards in order to obtain agreement, and which, hence,
will override egoistic or national interest. In a free
public debate, the moral point of view is forced upon the
participants as everybody's interests are to be
considered. Hence the norms of justice and fairness
required to override national interests and bring about
integration are produced. [34]
Before outlining this conception of democratic
legitimacy at the supra-national level, it is necessary
to question the prevailing view of a non-existing
European collective identity due to cultural and
linguistic heterogeneity, and differences in economic
development and welfare standards, as well as in
political-administrative arrangements.
Resources for integration
The history of Europe is often portrayed as that of
conflict and disaster. Empires and states have been
formed and complex schemes of co-operation at various
levels have been devised. Conflicts and wars have
unravelled all of these arrangements, at various times,
and at various magnitudes. The two disastrous World Wars
of the 20th century were certainly very important to the
subsequent emergence of integration processes aimed at
ensuring collective problem solving and
conflict-resolution at the supranational level. This is
not only reflected in symbols and proclamations -
“this shall not happen again” - but also in
commitments to collective political undertakings, made
possible by what is after all also a common history. In
other words, the history of Europe is more than that of
conflicts and disasters. There are also historical
factors that are conducive to the forming of a collective
identity necessary for collective
goal realisation and conflict resolution. Such collective
experiences derive from a wide range of sources, which
include ideas and ideologies, institutional structures
and historical practices. Classical thought has had its
bearing on this development and Christianity, the
Renaissance, the Enlightenment, and the successive
differentiation of value spheres of high modernity have
contributed to a common European cultural substrate which
also finds its institutionalised forms in binding legal
and political forms. [35]
This process of differentiation was greatly
facilitated by a vital aspect of the medieval notion of
society, namely “that society is not defined in
terms of its political organization.” [36] This and other
social and political developments and institutional
practices lent themselves well to the emergence of a
civil society, which permitted the emergence of an
economy as an extra-political reality and a public sphere
where a public opinion could be formed outside of the
state. Feudal relations of authority were also marked by
a notion of vassalage that entailed a set of mutual -
albeit not equal – obligations and from which the
notion of subjective rights emerged. The contemporary
development of a European transnational and
rights-oriented civil society thus draws on political and
social institutions and practices with deep historical
roots.
The sources and forces of
integration in Western Europe are not irreconcilable,
they are rather “commensurable”, [37] due to the ethos
of liberal democracy based on rule of law, basic rights
and openness, i.e., a civic culture that is a pendant to
the principle of rule of law. The cultural nexus of
modernity is thus also reflected in the institutional
complex of these societies, not only in a very similar
economic system – market-based economy – and
the competitive party-model of democracy, but also in a
commitment to human rights and popular participation. As
will be further developed below, European Member States
are democratic Rechtsstaats, based on a liberal
civic culture. However insufficient, weak and insecure
such a culture, it has for several decades now stabilised
the nation states and made possible democratic
politics – including growing recognition of
difference - and unprecedented welfare measures. [38] The nation wide
sense of solidarity associated with the welfare state
does depend on the willingness and the ability to
abstract from local commitments to broader concerns,
which turn on a successful change in identities and value
orientations. Solidarity and democracy, not only
capitalism and democracy have been the achievements of
post-war Western Europe. These developments have not only
changed the discourse in Western Europe so that war is
highly unlikely as an option for solving emerging
conflicts, but have also subjected the nation states to
constraints that have shifted the parameters of power
politics. The post-war emergence of new institutions
– such as the ECJ and the EP – have reinforced
the notion that law and democratic politics are the only
remaining legitimate means of problem solving and
conflict resolution, even at the international level.
In a larger, world-perspective the
similarities and commonalties in Europe are striking when
it comes to the basic normative infrastructure of
political, judicatory and economic life. On these matters
common language codes already exist. There has been a
deep and encompassing European cultural intercourse for a
long time. Today it has been expanded by new
communication technologies, which together with higher
education and heightened levels of knowledge in general
have led to the rapid spread of new cultural ideas and of
English as the second language in many European
countries. English may soon actually achieve the status
of the lingua franca in Northern Europe. [39]
Further, developments in
communication technology such as TV and Internet, in
addition to books and newspapers, constitute new public
spheres and make transnational communication – in a
transnational civil society - possible, to an
unprecedented extent. [40]
This is not to deny the problems of a weak
collective identity, but to assert that the EU does also
rely upon a common history of ideals and moral
principles. No doubt this is the memory of disasters. But
it is also that of greatness, including progressive
political ideas. [41]
It should also be recalled that
initially, at their time of formation, present-day nation
states were forged by decisions that were often carried
out by brute force. They were themselves generally not
carefully constructed on the basis of a common memory or
by means of popular discussion. As Charles Tilly has
noted “(w)ar made the state and the state made
war...”. [42]
The historical experience reminds us that it is the
successive democratisation of the nation state
that has provided the glue that permits modern states to
accommodate diversity in a non-repressive manner.
These observations suggest that there are other ways
of addressing the problem of non-majoritarian sources of
legitimacy than the ones stemming from primordial
attachments or common cultural traditions and language.
But is it necessary to presuppose the existence of
certain shared values or virtues – in the sense of a
collective cultural identity - in order for
integration to come about?
Democracy and basic rights
There is a profound problem with the sociological or
rather communitarian conception of the resources that are
required to ensure integration in modern states. Such
required resources, it is contended, include ready access
to shared values and sense of belonging. Such a
conceptual strategy cannot explain why complex and
pluralist societies can at all hang together. Modern
states may be stable and well functioning, yet they are
highly differentiated, pluralistic and they contain
multi-level structures of governance. There are many
sorts of identities and belongings. When viewed in light
of these facts the communitarian conception of order
becomes confining. Multicultural societies display a
heterogeneous value basis. Why these societies hang
together may be explained, not by recourse to shared
values but by means of a more complex model of how allegiances are formed. To do so it is
necessary to distinguish between two kinds of social
integration - cultural and political. The first
denotes the kind of integration that is needed for
individuals and groups who seek to find out who they are
or would like to be. By this we think of the values and
affiliations, language and history that form the glue of
society - cohesion in general and trust and solidarity in
particular - and which transform a collection of people
into a group with a distinct identity, i.e., the cultural
substrate of the nation. [43]
A distinction is required between the cultural or value
basis of a political order, which is dependent upon a
particular identity that prevails in the groups and
nations of which people are members, and the
constitutional order of such a society. The latter
does not rest upon a particular set of values but on
trans-cultural norms and universal principles. The
constitutional order claims to be binding on all subjects
and to be approved by the various groups within society,
each with its particular and distinctive identity(ies)
and value(s). Nation states are not merely �nation
states�: as a rule they consist of many groups - social,
ethnic, religious etc. - with different identities,
values, and loyalties. Often, they are multi-cultural
societies and as such require a second level of
integration - political integration - which makes it
possible to cope with difference and collective decision
making without relapse into �ethnocentric politics�.
Hence, respect for difference, pluralism, human rights,
vulnerable identities, etc. is required.
The basic structure of constitutional democracies, then,
does not only express certain values or conceptions of
the good society, but in addition a conception of a
society based on the rule of law. Different groups
continue to live together and resolve conflicts because
they agree on the basic rules and procedures that claim
to secure fair treatment of the parties. “Law is the
only medium through which a “solidarity with
strangers” can be secured in complex
societies.” [44]
At the level of social
interaction, the explanation is to be found in the way in
which freedom, democracy, autonomy, equality, - in short,
due process and equal respect for all - have obtained a
deontological standing in our societies. They are principles,
which it is a duty to comply with even though they
could interfere with the values of the majority,
particular conceptions of the good, roles, identities or
utility calculations. That is why constitutional rights
can function like trumps in collective
decision-making. [45]
Some norms claim categorical validity because they are
derived from the inherent dignity of the person - they
are so to say “... equal and inalienable rights of
all the members of the human family ...” [46]. There is, then,
not a conceptual link between ethnos and democracy,
although there may be an empirical one.
It is in this manner we conceive of democracy and
human rights, not solely as representative of cultural
traditions and shared meanings, but as manifestations of
cognitive-moral principles that command respect in and of
themselves. They are essential prerequisites for
self-governance and the cornerstone of modern
constitutional arrangements. Constitutions protect the
citizens' freedom by entrenching a host of individual
rights. Basic civil rights cannot be altered by simple
majority vote. Constitutionally entrenched rights
clauses, in addition to the principle of a written
constitution, the principle of separation of powers, and
judicial review etc. impose restrictions on “the
will of the people” and are meant to guarantee the
freedom of the individual. They may be seen to protect
the private autonomy of the citizens and are
necessary for the formation of authentic private
opinions. This thus provides for some of the
“non-majoritarian” sources of legitimacy needed
for collective decision-making.
Constitutional arrangements not only enable but also
require and warrant popular participation in the
political process. That is, they enable and warrant
government by the people. The democratic principle
entrenched in modern constitutions, refers to the manner
in which citizens are involved in public deliberations,
collective decision making and lawmaking through a set of
rights and procedures, that range from freedom of speech
and assembly to eligibility and voting rights. These
political rights, and their attendant institutions and
procedures may be seen as a way to secure the public
autonomy of the individual. They ensure that the
addressees of the law can also participate in the making
of the law. However, modern states are large and
pluralistic, and their complex institutional nexus, to
function, presupposes representation and delegation
of power as essential principles of governance. Voting,
entrenched rights, representation and expertise should
not be seen as “merely aggregative” as they
also, under certain conditions, contribute to rationality
and legitimacy. [47]
The fundamental democratic requirement can thus not be
everybody's participation in actual decision making
processes, but the right of all to participate in
deliberation on common affairs. [48]
Democratic legitimacy does not stem from the
predetermined wills of individuals, but from the process
by which a common will is formed on the basis of the
right that all have to participate in collective
deliberation.
The criterion of democratic legitimacy is thus that
the decisions that are taken can be seen as the outcomes
of people's deliberation under free and equal conditions.
Collective will formation does not require a set of
shared values and opinions from the outset, but rather
that all opinions are taken into consideration before a
decision is reached, in order for democratic legitimacy
to be achieved. The presupposition that a set of
non-majoritarian resources, such as shared identity or
common heritage and tradition, are required for
integration to come about is thus less important. This is
not to say that such identities may or may not prevail,
as is captured in the notion of nation. This is not the
core issue, however, as: “ ...this distinctive
cultural identity does not designate
it as a political community of citizens. For the
democratic process is governed by universal
principles of justice that are equally constitutive for
every body of citizens. In short, the ideal procedure of
deliberation and decision making presupposes as its
bearer an association that agrees to regulate the
conditions of its common life impartially.” [49] Democracy is thus
conceived of at a more abstract level: it is not seen
merely as an organisational principle – e.g.
representative or parliamentary democracy – but as a
legitimation principle which ensures the conditions
necessary for justification. In other words, it is not
identical with a particular organisational form, but is
rather a principle, which sets down the conditions that
are necessary for how to get things right in politics.
Democracy is a way to form common opinions and collective
wills about what to do but also to find out what is fair
or just, and arguing is required for a norm to be seen as
impartial in a political sphere of action. Modern
democracy is thus not one among several alternative
principles of associated life that may be chosen at will
but entails the very idea of communal, civilised life
itself . [50]
When framed in this manner, the basis
for democracy is not a particular nation or Sittlichkeit
- i.e., Kulturnation. Rather it is the norms and
principles underlying the French revolution – the
Enlightenment era – and which nowadays are spread
well beyond the Western Hemisphere. These still
constitute the most essential aspects of what may be
termed `the European identity'. It is a genuine political
identity that is based upon the principle of self-rule
via the medium of law, and which entails equal rights for
all, [51] but which
also has to be supported by a liberal political culture
of tolerance and pluralism in order to prosper. It may be
seen as rather thin and fragile, as it is procedural
rather than substantive, moral and judicial rather than
ethical and cultural. But its fragile appearance should
not delude us with regard to its appeal and strength. Its
strength is derived from its appeal to universal
cognitive principles of validity, and it is, and has for
centuries, albeit imperfectly, been in operation in the
democratic Rechtsstaat that was established at the
national level.
Regarding the process of
Europeanisation “... there is no call for defeatism,
if one bears in mind that, in the nineteenth-century
European states, national consciousness and social
solidarity were only gradually produced, with the help of
national historiography, mass communications, and
universal conscription. If that artificial form of
`solidarity amongst strangers' came about thanks to a
historically momentous effort of abstraction from local,
dynastic consciousness to a consciousness that was
national democratic, then why should it be impossible to
extend this learning process beyond national
borders?”. [52]
This perspective brings to the fore the democratic
potential in the European integration process.
Post-national legitimacy
The analytical distinction between political and
cultural integration referred to above is intrinsic to
the notion of `post-national' democracy. The notion of
post-national identity is that of a political identity
which is founded on the recognition of democratic values
and human rights, as these are embedded in a particular
constitutional tradition. Citizens are seen as bound to
each other not by those traditional pre-political ties
that nation-states have appealed to but by subscription
to democratic values and human rights. [53] This type of
identity is conducive to the respect for and
accommodation of difference and plurality. It is the
constitution and the continuing voluntary recognition of
the constitution that hold people together. In other
words, what holds people together is their constitutional
patriotism. An important question is whether or the
extent to which this type of attachment can override
primordial ones. Another question is whether the EU is in
the process of adopting this mode of legitimation.
The EU was established as a type of interstate
co-operation. But the EU has changed, and so has the
international context. A purely voluntary,
intergovernmental association of states does not give
rise to collectively binding agreements as it is made up
of autonomous states and based on the principle of
balance of power. It is likely to run into problems such
as those facing the League of Nations, which
failed to authorise anyone to defend the shared
principles. The process of reaching collectively binding
decisions is, ultimately, legally dependent:
post-national law must be made binding on Member States.
The EU has clearly progressed beyond this initial stage
of a purely voluntary association. It is an entity with
strong supranational elements, as evidenced in the
supranational character of the legal structure, which is supported and enhanced in
particular by the European Court of Justice. In its
rulings, it has long asserted the principles of supremacy
and direct effect, principles, which have informed the
actual operations of the EU, albeit their precise status
in relation to national constitutional orders remains
unclear. [54]
Irrespective of the constitutional status of EU law, what
is of particular interest is that supranationality does
mean that the same obligations are conferred upon all,
i.e., non-arbitrary norm enforcement. Law is a medium for
stabilising behavioural expectations, because it connects
non-compliance with sanctions. It solves the problem of
collective action. Law enables moral behaviour as far as
it is made binding on the parties and prohibits defection
and free-riding: Actors may more easily act communicative
rationally when the incentives for strategic action are
taken away.
Further, the European Parliament which is directly
elected by the peoples of the Member States, is also
supranational, and has recently increased its powers vis-a-vis
the European Commission. The Commission is the executor
of Union policies and is endowed with the right of
initiative, which includes the right to issue legislative
proposals. The particular non-hierarchical nature of
supranationality that marks the EU, is among other
things, a result of its peculiar “separation of
powers”, which ensures the Member States a strong
and consistent say in the decision-making processes of
the EU, and no single Member State is in the position to dominate the others. The institutional
structure of the EU embodies a complex mixture of
supranational, transnational, intergovernmental, and
international elements. The structure in place in the EU
is incomplete, in principled and substantive terms, due
to its particular character qua polity, namely
dynamism, openness and polycentricity. [55] This system is
thus conducive to `non-hierarchical consensus' and
`deliberative supranationalism'.
The EU institutions – albeit to various degrees
– commit themselves to a post-national mode of
legitimation. In the treaties, in policy papers and
statements, and in speeches by central officials, they
present as key a set of principles, which the `European
project' has to be evaluated against. It is noteworthy
that the principles and standards have undergone
important changes in the last 15 years. The Maastricht
Treaty represented the most important single change here
in that the principles appealed to were not only
universal in nature but were also far more
explicitly tied to democracy as the principle of
legitimation. These principles were further amplified in
the process leading up to and in the Amsterdam Treaty
itself. For instance, in the Report on the Amsterdam
Treaty by the Institutional Committee of the EP, it was
concluded that “the Amsterdam Treaty is a
significant step forward for the European Union, compared
to the Maastricht Treaty, in terms of democracy, freedom,
the rule of law, social policy, solidarity and
cohesion.” [56]
These terms indicate that the evaluative standards, as
expressed in official submissions to the process, have
become more explicitly linked to democratic legitimacy,
not foremost in substantive terms and as a particular
institutional arrangement, but in procedural terms, i.e.,
as a principle of legitimation. Additional
process-related standards, also closely associated with
democracy as a principle of legitimation, were
highlighted during the Amsterdam Treaty process.
Particular onus was placed on
- the need for proximity to citizens (to
counteract the sense of remoteness to citizens and
people);
- the need for transparency (with regard to
procedures and which is required to combat complexity and
lack of procedural clarity);
- openness (which is needed to replace
closedness and `cosy inwardness' and which refers both to
procedures and to new entrants, and which was included in
Article 1.4 of the Amsterdam Treaty);
- subsidiarity which was seen as a remedy
against remote and centralized rule; and
- flexibility.
Other developments also reveal that there is a quest
for popular support of the integration process.
Consent-based integration
There is considerable onus on consent-based
legitimation in the very nature of EU decision-making, as
already mentioned. This is apparent in the institutional
structure and in the relations among the institutions.
With regard to the institutional system, the main
strength of “the dual character of the EU executive
[is that it] facilitates extensive deliberation and
compromise in the adoption and implementation of EU
policies.” [57]
Further, basically all the various decision-making
procedures are based on extensive amounts of
inter-institutional deliberation. The EU has also applied
an unusual number and range of decision-making
procedures, which probably makes it one of the most
complex legislative systems in the world. Increased
integration and a strengthened role of the EP have
contributed to two important developments.
First, there has been a strong move from veto-based
unanimity to decision-making through qualified majority.
The latter requires more trust and hence trust that is
brought about communicatively, as there is no
far-reaching value consensus to draw on, and since the
“permissive consensus” came to an end in the
early 1990s.
Second, the number of procedures has been drastically
reduced. The Amsterdam Treaty reduced the number of
decision-making procedures to three: consultation,
co-operation, and co-decision. However, it strengthened
the role of that procedure which requires the greatest
amount of deliberation and reason giving, namely
co-decision. In most of the second and third pillars -
i.e., in most aspects of the Common Foreign and Security
Policy and Justice and Police Affairs Co-operation –
the less arduous consultation procedure is employed.
The heightened role of the European
Parliament in the EU's decision-making structure has led
to more inter-institutional deliberation. The EP's
decision-making powers have increased and its scope of
action is widened, as it is now a co-legislator with the
Council in thirty-seven different types of issues.
Therefore, co-decision will increasingly be perceived as
the standard procedure in legislative matters.
Consultation or co-operation are likely to be considered
more as exceptions. [58]
The onus on deliberation is evident
in every stage of the decision-making process in the EU,
as already mentioned. There is extensive consultation of
affected interests, through lobbying and sounding out. In
addition to committees of advisory and expert groups, the
Commission, on an ad hoc basis is “committed to the
equal treatment of all special interest groups, to ensure
that every interested party, irrespective of size or
financial backing, should not be denied the opportunity
of being heard by the Commission”. [59] The Commission
(and the EP) have taken active measures to broaden the
range of interest groups directly involved at the EU
level. The legitimacy of the EU partly derives from the
deliberation that emanates from the non-hierarchical
networks and webs of communication among actors who
address substantive concerns and who are involved in the
process of decision-making. This mode of interaction is
very much the result of the process of integration
itself. Although the initial setting up of a network can
be seen as a result of conscious design, subsequent
efforts are more the result of copying and adaptation,
due to favourable results. Integration driven by
deliberation, however, is not foremost a matter of an
initial plan or motives, but refers to the process of reason-giving
that is required when actors from different contexts -
national, organisational and professional - come together
to reach agreement on how to solve various types of
issues. This mode of integration is
premised on a search for valid arguments. Comitology
committees represent one such example. The composition,
interaction and outcomes of committees in themselves bear
the burden of legitimation, not established hierarchies
of one sort or the other. Comitology is in fact described
as a new stage in the integration process. [60] As Joerges and
Everson note
European committees cannot simply be
classified as the agents of a bureaucratic revolution.
Rather, with all its sensitivity for the modern complex
of risk regulation and for the intricacies of
internationalized governance within non-hierarchical and
multi-level structures, the committee system may be
argued to possess a normative, if underformed, character
of its own; or, more precisely, to operate within a novel
constitutional framework informed by the notion of
`deliberative supranationalism.' [61]
Comitology does possess normative
quality but actually how democratic it is remains to be
demonstrated. Further, the principle of subsidiarity may
contribute to legitimation through deliberation, as it
places the burden of proof on the higher-level units. For
instance, in its report on the TEU, the European Council
and Council of the Union stated that: “The
Commission has undertaken to justify each of its new
proposals in the light of the subsidiarity principle. It
makes more regular use of “Green Papers” and
“White Papers”, prompting broad public debate,
before new proposals are submitted.” [62] Subsidiarity
prompts justification and polycentric views on
adjudication. And whilst `Amsterdam Subsidiarity' (the
principle of subsidiarity as entrenched in the Amsterdam
Treaty) introduces more specific criteria for how to
apply the principle, it does require the Community
“to legislate in the weakest form necessary, leaving
discretion to Member States.” [63]
The EU is formed in a manner that is quite different
from how the nation state was initially formed. The
modern nation state has its roots in a hierarchic
structure of governance that was initially legitimated from
above, i.e., with reference to religious and
monarchic traditions and practices. The EU, on the other
hand, is established by the Member States and is
legitimated from below, as reflected in the
central role of the Member States in its treaty making
and decision-making procedures, as well as in central
legal principles (legality and proportionality). Even the
European Court of Justice, it should be noted, seeks to
legitimate EU law with reference to its essential
compatibility with the fundamental constitutional
principles in the national constitutional orders of the
Member States. The EU integration process is driven by
the need to find solutions to pressing problems that no
single state can resolve on its own. The EU is such
structured that no single state can dominate the others.
And the EU has very weak sanctioning abilities. It is a
non-coercive consensus-based system and this affects its
structure and operations.
Cheap talk or direct legitimacy?
The EU, as noted above, has a far-reaching direct
impact on citizens and their affairs. It affects their
interests in a profound manner, as consumers, producers,
employees, and rights holders. The `direct effect'
principle of EC law profoundly affects the Member States,
and the Court has increasingly sought to justify
“... its claims to judicial competence-competence as
the authority interpreter of a `higher' European law by
reference to the protection of basic human rights.” [64] The universal
nature of this principle makes it one of the most potent
reasons any entity can employ to support its claim for
legal sovereignty. Also, the unity and sovereignty of the
Member States are not left intact in the EU. However, the
EU may contribute positively to Member State authority,
insofar as the Union can serve as a means to handle
externalities in an effective manner.
Due to its performance and the
effects of the EU's policies, and in response to the
democratic standards that the EU itself increasingly
asserts, there is a rising call for measures to
strengthen the direct legitimacy of the EU. This is
underscored by many of the actions taken by the Member
States to lift out decision-making: They use the EU to
relieve the national agenda of difficult issues [65]. This highlights
the autonomy of EU decision-making and liability to
public accountability on its own. The EU
itself claims popular approval - it claims to be a source
of legitimacy in itself. Both the rhetoric of `bringing
the Union ever closer to the people' - the Community as
`a political union' - a polity - and the many referenda
on treaty changes to increase the depth of European
integration, are reminders that the power resides
directly with the people. The European tradition supports
a wide range of values, all of which are currently drawn
upon to support the new European construction.
One may of course find these claims
that the EU propounds as pretentious and as mere
window-dressing, as do realists who generally conceive of
ideas as information reducing means. But whether they are
`really' intended as window-dressing or not, they may
contribute to integration according to the civilising
force of hypocrisy. That is, regardless of the
actors' intentions, insofar as they appeal to norms that
are widely accepted, they in fact confirm their validity.
[66] These values
are not only unavoidable as means of interpreting the
history of the EU and as means of defining what it is
about – its identity – but they constitute the
very language codes for dealing with common
affairs, such as the question of enlargement. Here
democracy and human rights are employed directly as
admission criteria, which applicants must adhere to, in
order to obtain membership. In contra-factual terms, the
basic norms and values justifying the EU may be forceful:
Such principles spark criticism and are easily turned
against the EU itself. They are powerful weapons in the
hands of democrats. Cheap talk often strikes back.
The standards of legitimate governance –
i.e., the principles of the democratic Rechtsstaat -
that the EU appeals to and aspires to are becoming
increasingly clear and apparent. It is however widely
acknowledged that the EU is deficient in relation to
these. The three most important deficiencies that are
discussed in the literature are:
- First, that the EU is inadequate
with regard to its rights basis. This applies to
the range of rights as well as the still
ambivalent legal status of EU rights. Further,
the fact that EU citizenship is still derived
from national citizenship precludes the EU from
adopting a uniform citizenship. It also means
that non-nationals are excluded, and they have no
recourse to appeals to the ECJ in case of
violations. The pillar-structure of the treaties
– with pillars two and three outside the
legal framework - also acts as a constraint on
rights development.
- Second, the process of constitution making is
closed, executive-driven, and technocratic. [67] Citizens
have no assured way of knowing precisely which
institutional practices the EU officials will
adopt and how well these will correspond with the
fundamental principles that the citizens embrace.
- Third, the EP and the national parliaments are
weak and inadequate as means of ensuring popular
input and as means of holding the executive
accountable. Although the EP has obtained the
power of co-decision in the EU lawmaking process,
its role in treaty making is marginal, which
greatly limits popular inputs into the process.
The weakness of the EP is compounded by the
underdeveloped nature of intermediary bodies such
as European parties and by the absence of a truly
European public sphere.
However, something is happening in Europe.
Facing up to the challenges?
One important aspect of the EU's legitimacy deficit,
which runs through all three dimensions listed above is
the lack of popular support and sanction. [68] This has become
more evident since the early 1990s, which saw the `end of
the permissive consensus'. It is important to recognise,
however, that the debate on the legitimacy deficit of the
EU takes place within a setting marked by wide public
support for binding European co-operation to ensure such
universal values as peace, democracy and solidarity. The
EU draws on and seeks to nurture this. In the most recent
process of treaty change, during Amsterdam, the EU sought
to locate the question of its legitimacy in such values
as peace, democracy, freedom, human rights, the rule of
law, social justice, solidarity, equality,
non-discrimination, cohesion, security, efficiency, and
cultural diversity. This suggests that the problem of the
legitimacy deficit of the EU does not refer to the
relevance or normative validity of the core principles
that it appeals to as such, but rather
to how these values are applied in practice. What has not
yet emerged is a common understanding of how these values
are to be institutionalised and put into practice in a
supranational polity and this has become especially clear
since the early 1990s. [69]
This has sparked efforts – by analysts and EU
officials alike – to try to establish a better
coherence between the values and principles that are
appealed to, and the nature and functioning of its
institutional apparatus. These efforts cover all three
dimensions of the legitimacy deficit of the EU.
With regard to the third deficit,
that of the weakness of the parliamentary dimension, the
EP has long pursued a struggle for public recognition
which involves increased public accountability and
efforts to strengthen its position vis-a-vis the
Commission and the Council, and the Member State
governments. This process is hard to understand, unless
we employ the terminology and criteria associated with
popular sovereignty. For instance, the conflict-ridden
relationship between the Commission and the European
Parliament, due to the absence of a clear-cut division of
powers, has produced several important efforts to hammer
out a more coherent and democratically based system of
accountability. This effort was manifest in the Amsterdam
Treaty process and it is widely held that the EP did
obtain a strengthened role at Amsterdam. [70] It did not
hesitate to fill and test this role. Consider the 1999
crisis: The Committee of Independent Experts was set up
to report on various allegations and produced the report
entitled Allegations regarding Fraud, Mismanagement,
and Nepotism in the European Commission, and which
lead to its dissolution and the reappointment of members,
all amidst vociferous criticisms by the Parliament. The
dissolution of the Commission in 1999 may signal a
watershed change in the development of the EU, in that it
promises to further increase the power of the Parliament
and further enhance the supranational features of the EU,
features based on strengthened and more well-developed
conceptions of accountability, transparency, and honesty.
However, there are clear signs to
indicate that a strengthened role of the EP does not
automatically lead to more support, as was reflected in
unusually low rates of voter turnout in the latest EP
elections in Spring, 1999. [71]
This low voter turnout is interesting, particularly
given the significant efforts taken by the MEPs to
heighten the status and role of the EP in relation to the
Commission that year. One reason for this may relate to
the weakly developed intermediary bodies such as truly
European parties, and a European public sphere, which can
serve to mobilise and convey public sentiments into the
EU system. However, there are signs that a public sphere
is emerging in Europe. For instance, it is difficult to
think that the 1999 crisis could have come about had
there not been widespread public criticism.
We see the emergence not of one
uniform public sphere, but of numerous overlapping ones.
What are emerging are networks of social and political
actors, epistemic communities, and social movements, many
of which emerge around particular issues and topics, such
as corruption, BSE, and migration. These are deliberative
issue communities, which transgress the bounds of
language and nation. [72]
New technologies and audio-visual spaces are also
emerging - often market driven such as The Financial
Times and The Economist. [73]
Such communicative spaces are not restricted to economic
issues, nor are they confined to the establishment of
formal public sphere institutions such as Deutsche Welle,
Euronews, and BBC world.
These changes in the institutional
and societal patterns in Europe serve to underline that
the EU is a polity marked by dynamism and
poly-centricity. It is still in the making and is
undergoing deep changes, in an almost continuous manner.
Its incompleteness is reflected in its constitutional
status, which is ambiguous and contested. [74] The key element
here from a legitimacy point of view is not the legal
status of the constitution but the principles and
institutional arrangements that the constitutional
structure will embody. It is widely acknowledged that the
EU has established a constitution-type legal structure
but it is incomplete and thus far lacks a clearly
established telos. [75]
This fact relates to the second deficit listed above,
namely the closed and technocratic nature of constitution
making. It is hard to see how such a telos can
come about without an open and ongoing constitutional
discussion.
Post-national democracy?
The EU is a post-national entity and appeals foremost
to universal values. The applicability and salience of
these values must be established in practice – and
cannot be presupposed. Further, as noted, there is a very
strong onus on consensus and the system is marked by a
relative lack of coercive measures. All these factors
deeply affect the nature of the constitution making
process that is currently unfolding in the EU.
Constitution making in the EU is not based on a
constitutional convention or a particular and privileged
constitutional moment. The constitution cannot be
discerned directly from the treaties but emanates from
the manner in which the EU's legal system is gradually
becoming `constitutionalised'.
In the EU the conventional conception
of constitution as a contractual arrangement that is
established or given at a particular point in time
is challenged. The lengthy and protracted process of
constitution making that the EU has already undergone
alerts us to an alternative notion of constitution
making, i.e. of constitution making as permanent
revolution. When viewed in this perspective, the
constitution is not merely a contractual arrangement or a
body of rules but also a set of procedures and rights
that can accommodate an ongoing process of discursive
validation of the structure in place. [76] In theoretical
terms, this entails that constitution as a set of
normative principles and justifications, and
constitutionalisation as the process of discursive
validation, are made to converge. It is this conception
of constitution making that is compatible with
post-national legitimacy.
The EU is in the midst of such a process of fusing
constitution and constitutionalism. This process is
coloured by an absence of ready-made justifications for
the EU to draw upon in its search for legitimacy. The
process of constitution making is far more than treaty
negotiations. It is the sum total of the interpretations
and rulings of the courts, the deliberations in the EP
and the national parliaments, the deliberations in the
various NGOs and public spheres in Europe and in
non-European countries and movements. This process itself
has to foster such justifications. The EU is a very
dynamic entity and is still less a manifestation of a
particular mode of governance than a meeting place where
different interests, preferences, values, and identities
come together. They may clash, compete, converge or
cohere. But the structure provides considerable assurance
that these can be heard.
The second deficit listed above
underlines that this process has been far from open and
all encompassing. However, there is evidence to suggest
that the process has opened up with every effort to
change the treaties. This is not foremost a matter of
access in terms of direct participation. It is a matter
of reason giving and justification and attentiveness to
the views of those not formally part of the process. The
strengthened role of the EP within the institutional
system of the EU is one development that has contributed
to open up the process of constitution making. The
process increasingly includes strong publics, i.e.
institutionalised deliberations “whose discourse
encompasses both opinion formation and decision
making.” [77]
The IGC-96 also included weak publics, [78] where opinion
formation and discourse are reserved for the general
public. This applied for instance to NGOs and national
publics involved in treaty and referenda debates. But an
important challenge is to open up the process further to
ensure that all those affected are heard, which also
means that people are made cognisant of the processes and
options and that the range of constitutional options is
explored and assessed in open ongoing discourse. One
option that is debated is to institute European-wide
referenda, where every European citizen is invited to
participate. [79]
When the Danish and the Italian citizens are to address
the same concerns, their awareness of the basic issues
involved and at stake may be enhanced and a foundation
for solidarity can be created. Provided the referenda are
organised so as to encourage deliberation – through
public debate, hearings, meetings and the media - rather
than mere voting, the result can be to foster more common
understandings. Other options to stimulate deliberation
include a) measures to involve representative bodies such
as the EP, national parliaments and regional
representative bodies more directly in the process, and
b) measures to activate intermediary bodies such as
social movements and political parties. These measures
would strengthen the role of both strong and weak
publics.
The limited salience of weak
publics in the process of constitution making is
likely affected by the fact that EU citizens do not
possess – in relation to the EU - the range of
rights associated with and constitutive of the democratic
constitutional state. [80]
Citizens also do not have much direct input into many of
the rights they obtain. The structure in place in the EU
offers weak support for the mutual recognition and
reciprocity that are such intrinsic features of rights
and that are central for solidarity and justice to come
about. There is a process afoot to rectify this
deficiency, which is precisely oriented at the search for
the normative telos of the integration process in
Europe: Human rights and popular sovereignty. That this
is underway is perhaps most clearly revealed in the
decision to incorporate a Charter of Fundamental Rights
into the new Treaty. [81]
The decision to frame a Charter of Fundamental Rights was
taken at the Cologne European Council (June 3-4 1999).
In October 1999, at the
Tampere European Council, it was decided to establish a
62-member Convention (headed by Roman Herzog) to draft a
Charter of Fundamental Rights of the European Union. [82] This is the first
time that the EP is represented in the same manner as the
Member State governments and the national parliaments in
a decision of a constitutional nature. [83] The drafting of
the Charter takes place in an open manner, in contrast to
the IGC-2000 process, which is mainly conducted behind
closed doors. The Convention consults with other
organisations and on February 29 sent out an invitation
for open hearings to representatives from civil society. [84] Since then
hundreds of NGOs have submitted briefs to the Convention
on different aspects of the Charter. These briefs can be
accessed on the Internet. [85]
On July 28, the Praesidium proposed a Draft Charter of
Fundamental Rights of the European Union. [86] The intention is
to have a draft prepared by October 2000 so that this can
be dealt with at the December 2000 Summit in Nice.
The Draft Charter contains provisions
on civil, political, social and economic rights. These
are intended to ensure the dignity of the person, to
safeguard essential freedoms, to provide a European
citizenship, to ensure equality, to foster solidarity,
and to provide for justice. The number and range of
rights that are listed is comprehensive (a total of 48
articles). In addition to conventionally accepted
provisions which most charters and bills of rights hold
and which pertain to such rights and freedoms as the
right to life, security, and dignity, there are numerous
articles that seek to respond directly to contemporary
issues and challenges. [87]
The proposed Charter must be read as one of if not the
most explicit statement on the EU's commitment to direct
legitimacy that has ever been produced in the EU.
However, it is not without ambiguities and constraints.
First, Article 49 provides that the Charter will
“not establish any new power or task for the
Community or the Union, or modify powers and tasks
defined by the Treaties.” This provision raises
questions as to the legal and constitutional status of
the Charter, i.e. whether the provisions of the Charter
are somehow subject to the provisions in the treaties and
whether the actual contents of the Charter are thus
automatically changed when the treaties are changed. If
so, and since the Member States are `masters of the
Treaties', this provision of the Charter could be seen as
providing the Member States with a power to `override'
the Charter. This issue of the legal status of the
Charter will be settled in Nice in December. Some Member
States, such as the UK, are known to want to restrict the
Charter.
Second, the status of the Charter in relation to
international and domestic Member State legal systems is
not entirely clear. This ambiguity is exacerbated by the
fact that all the 15 Member States of the EU have signed
and have or are in the process of incorporating the
European Convention for the Protection of Human Rights
and Fundamental Freedoms into their domestic legal
systems, whereas the EU has not signed it. Article 50,
Section 3 reveals that the Draft Charter is intended to
offer a higher level of protection than that provided by
the European Convention. It states that “Insofar as
this Charter contains rights which correspond to rights
guaranteed by the Convention for the Protection of Human
Rights and Fundamental Freedoms, the meaning and scope of
those rights shall be similar to those conferred on them
by the said Convention unless this
Charter affords greater or more extensive
protection.” However, this issue is complicated by
the fact that the Charter, in its present form, only
applies to the “institutions and bodies of the
Union” and only applies to the Member States
“when they are implementing Union law.” [88] The fact that
there is no constitutionally entrenched division of
powers in the EU makes it hard to see what this
distinction will entail in practice.
The Charter process represents a potentially very
important development in the process of
constitutionalising the EU. The result of the process
will therefore tell us a lot about the status and future
development of the EU, in practical and principled terms.
This process of constitutionalisation is no doubt driven
forward by the particular developments within the EU
pertaining to closer integration, and given impetus by
the particularly vexing challenge of enlargement. But it
is also spurred on by the emerging global system of
rights entrenched in the UN Convention and the European
Convention of Human Rights. This development interacts
with and reinforces the European Court of Justice's own
embrace of constitutional principles and practices from
the constitutional arrangements of the Member States. The
net effect is a mutually reinforcing process of norm
development – from above and `below' - which
reinforces the conception of the EU as subject to basic
democratic standards and requirements.
Conclusion
The type of legitimacy problem or deficit that we have
identified in the above is quite different from that
which concerns many analysts of a more cultural and
substantive bent, ranging from communitarians to
intergovernmentalists. In their assessment, the EU is
faced with a profound legitimacy deficit because of the
absence of a common tradition, culture and collective
identity.
In this assessment, to place the onus on a common
culture is to further complicate the process of ensuring
democratic legitimacy. There are two reasons for this.
The first refers to the question of diversity in Europe.
The search for common cultural values and belongings may
be a rather futile and even misleading undertaking. The
problem is not pluralism and difference in Europe but
rather the need for procedures to accommodate the complex
structure of existing identities and plural evaluations,
and to ensure that such are also fostered. This is an
intrinsic normative feature of the
liberal constitutional state. The wide extent of
diversity is a resource for the emergent political order
to draw on. In other words, despite Europe's religious,
cultural, ethnic, national, regional, linguistic and
other types of diversity, an order is in the process of
being founded in Europe. Such an order is also
not merely a result of a compromise or of an overlapping
consensus, [89] but
is rather the extension and the cultivation of a
structure of governance already in place in well
developed democratic states, i.e. states whose
constitutions reflect the idea of popular sovereignty and
human rights, and which are therefore founded on respect
for difference. The integration process has reinforced
the ability of the EU to influence and enforce democratic
norms. The mutually reinforcing processes of
democratisation – at the supranational level and in
the Member States - have helped fuel this.
Second, however, institutional
innovations have to be supported by altered opinions and
identities in order to be successfully implemented.
Identities are not merely prepolitical givens and formed
by cultures but are also forged and fostered by
political, legal and administrative institutions. Rights,
laws and institutions associated with modernity are
important in the shaping and fostering of civilised
identities. [90]
This also means that the type of deficit we address can
be reduced by political action. After all, it is easier
for the people of Europe to agree on common democratic
standards and practices than to agree on a set of
pre-political and cultural values that can be permitted
somehow to stand beyond reproach. In this way also a
European public sphere and a European demos may be
created by institutional means. In the EU numerous
organisations and a vast number of networks form publics.
Obvious examples are NGOs, empistemic communities,
comitology, European interparliamentary co-operation
through COSAC and the EP. A supplementary option is to
institute European-wide referenda. Opinion formation at
the European level requires not only fora for debate, but
also suitable issues to debate, and this in turn may over
time foster the commonalties required for collective
decision-making by means of majority voting. Thus, the
abstraction needed for post-national integration to
produce post-national legitimacy depends upon the
institutional means whereby human beings are actually
addressed as and see themselves as citizens of the larger
political order.
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Footnotes
*e.o.eriksen@arena.uio.no
** j.e.fossum@arena.uio.no
[1] Cp.
Beetham and Lord 1998,16.
[2]
What we have in mind are first, intergovernmental and
rational choice based perspectives; second,
neo-functional, multi-level governance and other
perspectives that rely on spill-over and by-product
assumptions; and third, realist perspectives in general.
For the first category of rational choice theorists see
e.g., Scharpf 1998 and Moravcik 1998. For neo-functional
theorists, see for instance Haas 1958. For multi-level
governance theorists see Kohler-Koch and Jachtenfuchs
1996, Marks et.al. 1996a and 1996b. For the third
category, see Morgenthau 1985, Waltz 1979. See also e.g.
Keohane and Nye 1977, 1987 for particularly influential
modified versions.
[3]
Durkheim 1893/1964, 204.
[4]
This is to say that such forms of collective action could
theoretically be modeled as rational choices from the
actors' point of view by means of game theory
(tit-for-tat strategies and repetitive games) Axelrod
1984. However, these are `as if' explanations and seem
highly speculative and unrealistic and quite often also
cynical. On this see Eriksen and Weig�rd 1997, 225. For
instance, the tendency to explain integration and
enlargement as the mere results of side-payments, seems
overly cynical, as it overlooks the force of justice in
international affairs and of opinions about rectification
of previously committed injustice in Europe.
[5]
Elster 1989,151ff.
[6]
Miller 1995. Mauricio Viroli notes that “The
language of patriotism has been used over the centuries
to strengthen or invoke love of the political
institutions and the way of life that sustain the common
liberty of a people, that is love of the republic; the
language of nationalism was forged in late
eighteenth-century Europe to defend or reinforce the
cultural, linguistic, and ethnic oneness and homogeneity
of a people.” Viroli 1995,1. See also the notion of
`constitutional patriotism' later in this article.
[7]
Cp. Preuss 1999,9. Cp. Aristotle 1962; Pocock 1995.
[8] See
Dahl 1989,204 for a general statement and regarding the
EU see Lord 1998,107 and Scharpf 1999a,8.
[9]
Abromeit 1998,32. There are ”triple deficits ...
lack of a pre-existing sense of collective identity, the
lack of Europe-wide policy discourses, and the lack of
Europe-wide institutional infrastructure that could
assure the political accountability of office holders to
a European constituency.” Scharpf 1999a,187. See
also Scharpf 1999b,279, 1998
[10]
Scharpf 1998,237.
[11]
Scharpf 1999a, 6-12.
[12]
Scharpf 1999a,11.
[13]
Scharpf 1999a,188.
[14]
Smith and Wright 1999.
[15]
Hix and Lord 1997.
[16]
Hayes-Renshaw and Wallace 1997,53.
[17]
Lord 1998,47,78.
[18]
Cp. Elster 1995, Schelling 1960.
[19]
Habermas 1996a,166; Gutmann and Thompson 1996,53.
[20]
Risse-Kappen 1996,68ff; Joerges and Vos 1999; Majone
1996.
[21]
However, openness and deliberation do not necessarily
eliminate egoistic motives, but force the actors to hide
them and thereby actually confirm the validity of social
norms. Elster 1998,110f.
[22]
Findings from other settings support the role of arguing
in the settling of normative priorities in political
assemblies. See e.g. Elster 1998,97ff. For instance,
close study of congressional debate in the USA has led to
the identification of a series of informal norms that
promoted deliberation. Bessette 1994,147ff.
[23]
See Johnson 1993, 1998; Fearon 1998, see further Bohman
1996; Estlund 1997.
[24]
Note that Moravcsik's notion of liberal
intergovernmentalism is more sophisticated and somewhat
less susceptible to this critique because it is an
attempt to fuse elements of intergovernmentalism with
liberal regime theory. Liberal intergovernmentalism,
however, is based on the same micro-foundations as
intergovernmentalism, namely the strategic rationality
underlying the bargaining perspective. On liberal
intergovernmentalism, see Moravcsik 1993, 1998.
[25]
Consider in particular the role of Germany as a net
contributor to the EU. For instance, in 1995 the German
contribution was three times that of the second largest
net contributor, the UK.
[26]
Thus the theoretical problem of collective action, i.e.,
the propensity of being free-riders when enforced norm
compliance is absent. Cf. Olson 1965.
[27]
On the former see Joerges and Vos 1999; Habermas 1998a;
Eriksen and Fossum 2000. On the latter see James March
and Johan Olsen, for instance, who underline how
preferences are shaped by actors' conceptions of
institution-induced conceptions of appropriateness. March
and Olsen 1989, 1995, 1998.
[28]
See for instance Scharpf 1988, Hix and Lord 1997, Lord
1998, Hix 1999, who all notice the conspicuousness of
consensus-building in the EU without, however, exploring
its rationale with regard to the micro-foundations.
[29]
Majone 1996,293.
[30]
There is a growing body of literature that tries to do
exactly that. See for instance Cohen and Sabel 1997,
Eriksen 1999; Eriksen and Fossum 2000; Joerges and Vos
1999; Joerges and Neyer 1997; Kratochwil
1991;Risse-Kappen 1996; Schmalz-Bruns 1999,Risse 2000.
[31]
Habermas 1984, 392.
[32]
Habermas 1984, 15.
[33]
Elster 1998a,100ff.
[34]
Morality excludes egoism: By the moral point of view
“we mean a point of view which furnishes a court of
arbitration for conflicts of interests. Hence it cannot
(logically) be identical with the point of view of
self-interest. Hence, egoism is not the point of view of
morality“ Baier 1958, 189-190.
[35]
Cp. Smith 1995,130; Viehof and Segers 1999.
[36]
Taylor 1995,210-24.
[37]
This is extensively discussed by several authors,
for more references see e.g. Lord 1998,119; Howe
1997,313; Smith 1995, Weiler 1999.
[38]
However different the actual welfare state regimes appear
to be in Europe. See Esping-Anderson 1990.
[39]
Grimm 1995,295. According to the European Commissions's
(2000) website “half of Europe is already
multilingual”. However, there are big differences
between countries.
[40]
Archibugi, Held and K�hler 1998; Bohman and
Lutz-Bachmann 1997.
[41]
Renan 1882; Habermas 1998b; Anderson 1997.
[42]
Tilly 1975,42. Lucien Pye sums up one of the most
important findings of the seminal volume on The
Formation of National States in Western Europe in the
following manner: “Possibly most striking and
disturbing is the finding of the authors of this volume
that wars and the threats of war played such a critical
part in building the strong states of Europe. The ominous
phenomenon of war gave telling reality and unquestionable
legitimacy to the reasons of state.” Pye in Tilly
1975,x.
[43]
Grimm 1995; Habermas 1998a; Offe 1998.
[44]
Habermas 1996b,1544.
[45]
Dworkin 1977,xi.
[46]
Cited from the Preamble of the United Nations
International Covenant on Civil and Political Rights
1966. Laqueur and Rubin 1990,215.
[47]
Bohman 1998,415.
[48]
Manin 1987,352.
[49]
Habermas, 1996a,306.
[50]
Cp. Dewey 1927, Gutmann 1996.
[51]
This is inspired by Kant who sees the state as a
union of people under laws, and the constitutions and
laws adhering to the principle of political right:
“A constitution allowing the greatest possible
human freedom in accordance with laws which ensure
that the freedom of each can coexist with the freedom
of all the others' .Kant 1785/1970:23.
[52]
Habermas 1999,58.
[53]
Habermas, 1996a,465f; Ingram 1996,2.
[54]
This is evidenced for instance in rulings on the
constitutionality of the Maastricht Treaty by the German
Constitutional Court and the Danish High Court, both of
which refused to grant EU law Kompetenz-Kompetenz.
[55]
Preuss 1996,138.
[56]
CONF 4007/97,15.
[57]
Hix 1999,55.
[58]
Nentwich and Weale 1998,8.
[59]
Commission 1993b, cited in Nentwich 1998,131.
[60]
Wessels 1998,1350.
[61]
Joerges and Everson 2000,164.
[62]
European Council and Council of the Union, 5082/95,
4. But see F�llesdal 2000 for limitations in the
Amsterdam Treaty with regard to the principle of
subsidiarity.
[63]
F�llesdal 2000,88.
[64]
Bellamy and Castiglione 1998,165.
[65]
”...the tendency of national governments to
offload the odium for unpopular decisions onto the EU
level only further exposes the character of its decision
making and the nature of its authority to public
questioning.” Beetham and Lord 1998, 14.
[66]
See Elster 1998a, 111.
[67]
For this discussion see Curtin 1993, Fossum 2000.
[68]
There are significant variations among the member states
with regard to the level of public support. For instance,
Eurobarometer surveys reveal that although there
are more people in Europe who feel they can rely on the
national institutions than the EU institutions, the
differences are not very substantial (34-38 percent for
the EU institutions and 40 percent for the national
ones). For these figures see Hix 1999,137.
[69]
The initial Danish rejection of Maastricht was a
rejection of central features of this treaty and not of
European integration. According to opinion polls taken in
1992 where people were asked what they would vote in a
possible referendum on Denmark's membership in EU (April
and June) 62 and 68 percent of those asked wanted Denmark
to remain part of the EU. Laursen et.al. 1994,270.
Euro-Barometer data from 1992 corroborate this. ZA
2141/ICPSR 9847:209-12. The 5 largest popular movements
that opted for a no to Maastricht wanted Denmark to
remain part of the EU. Ryborg 1998,25.
[70]
CONF 4007/97.
[71]
Turnout rates varied considerably but were generally
lower than in the 1994 elections. The national turnout
rates were (1994/96 figures are listed in parenthesis)
Austria:49% (68%); Belgium – compulsory –
95%(90.7%); Denmark 49.9% (52.9%); Finland 30.1%
(1996:58%); France 47% (53.5%); Germany 45.2% (60.0%);
Greece – compulsory - 70.1% (71.9%); Irish Republic
50.8% (37%); Italy 70.6% (74.8%); Luxembourg –
compulsory – 90% (90%); Netherlands 29.9% (35.6%);
Portugal 40.4% (40%); Sweden 38.3% (1996:41.6%); UK 24%
(36.4%). Source:
[72]
Eder 2000, Z�rn 2000.
[73]
Schlesinger and Kevin 2000.
[74]
Some analysts contend that it does not have a
constitution. Others say it does but that there is a
discrepancy between the structure in place and the
arguments that are used to justify it, in other words
that it has a constitution but not an attendant
constitutionalism.
[75]
Weiler 1999.
[76]
Chambers 1998.
[77]
Fraser 1992,134.
[78]
For this term see also Fraser 1992.
[79]
See Abromeit 1998,116ff on `the optional referendum' and
Pogge 1997 on how a series of national referenda might
improve democracy in the EU.
[80]
In their contribution to the Charter process, the
Platform of European Social NGOs and the European Trade
Union Confederation (ETUC) observed that “(a)
Charter which guarantees civil, social, economic,
political and cultural rights will counter the apathy and
scepticism which appears so prevalent. It is time to put
ideals back into Europe.” CHARTE 4194/1/00REV 1,
CONTRIB 75, April 28, 2000,3.
[81]
: 'the Charter will add to the fundamental rights of
Union citizens. By giving practical expression to the
principles of humanism and democracy on which it is
based, it must take on the force of a pre-eminent law
which will guarantee, in all the Member States and
applicant countries, respect for our shared values'. EP,
Press Release: 14-02-2000.
[82]
The Convention consists of (a) representatives of the
Head of State or Government of the Member States, (b) one
representative of the President of the European
Commission, (c) sixteen members of the EP, and (d) thirty
members of the Member State Parliaments (two from each of
the Member States).
[83]
See EP Press Service
http://www.europarl.eu.int/dg3/charte_df/en/index.htm
[84]
SN 1872/00.
[85]
See
http://www.europarl.eu.int/charter/civil/en/civil0.htm
[86]
CHARTE 4422/00.
[87]
For instance, there are provisions on `respect for
private and family life' (Article 7), protection of
personal data (Article 8), right to marry and right to
found a family (Article 9), freedom of research (Article
13), right to eduation (Article 14), freedom to choose an
occupation (Article 15), protection of children (Article
23). The Draft Charter also contains a Right to good
administration, section 2 of which includes “the
obligation of the administration to give reasons for its
decisions.” The Draft Charter also contains several
articles on non-discrimination and equality before the
law. Article 21, section 1, states that “Any
discrimination based on any ground such as sex, race,
colour, ethnic or social origin, genetic features,
language, religion or belief, political or any other
opinion, membership of a national minority, property,
birth, disability, age or sexual orientation shall be
prohibited.” Section 2 contains a clause banning
discrimination on grounds of nationality.
[88]
Article 49, Section 1.
[89]
Cp. Rawls 1993.
[90]
Elias 1982, March and Olsen 1995.
[Date of publication in the ARENA
Working Paper series: 15.01.1998]
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