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ARENA Working Papers
WP 01/9
Union Citizenship:
Unpacking
the Beast of Burden
Andreas Føllesdal
ARENA
[1]Introduction
Union Citizenship was a conceptual innovation of the Maastricht
Treaty, restated in the Treaty of Amsterdam. By introducing the term 'citizenship',
the Member State governments signal that they envision a polity, albeit
one where the link between political rights and territory of states is
broken. The present paper addresses some of the tensions created by Union
Citizenship, concerning conflicts between the intended aims and the possible
consequences. Section 1 defends the view that Union Citizenship was introduced
as a solution to the perceived need for greater mutual trust in future
compliance with Community-level practices. Section 2 considers some challenges
to this function of Union Citizenship. 'Union Citizenship' implies that
the offices and other institutions of the European Union are appropriately
subsumed under the conceptual schemes and democratic normative ideals
of constitutional law and political philosophy, that those subject to
laws should also be legislators with an equal say. Insofar as Union Citizenship
highlights the legitimacy lacunae in the Union, it may threaten Europeans'
support of their common institutions.
Section 3 explores the commitments citizens must have if citizenship is
to play the role laid out, of bolstering trust and trustworthiness. The
upshot is that for Union Citizenship to contribute to trust among Europeans,
citizens must be habituated to three sets of commitments that appear required
to maintain legitimate and stable institutions. Individuals must be committed
firstly to principles of legitimacy for the political institutions and
constitutional norms; secondly to local norms and cultural
practices, duly pruned by considerations of justice. Thirdly, and going
beyond "Constitutional Patriotism", Union citizens must share
fragments of a justification of the principles of legitimacy, such as
a conception of the proper roles of individuals, member states and the
Community institutions. Such commitments are required for citizens to
make credible commitments, and hence be trustworthy. A Liberal Contractualist
theory is used to illustrate the role of these three commitments, and
rebut objections.
1 If Union Citizenship is the answer, what is the question?
One main reason why the European Commission recommended
the establishment of 'Union Citizenship' was to foster popular support
and allegiance to Union institutions and policies, in response to a perceived
legitimacy deficit (Closa 1992, 1155; Shaw 1997b; Wiener 1997). Indeed,
awarding citizenship is often regarded as a way to cultivate community
(Kymlicka and Norman 1994). In the case of the European Union, some regard
talk of citizenship as a cynical public relationsn move while others are
expressly optimistic (Weiler 1996 and Kostakopoulou 1996, respectively).
Still others suspend judgement regarding this attempt at identity building
at a European scale (Laffan 1996; Preuss 1996; Lehning and Weale 1997).
Union Citizenship appears to offer too little, too late. As citizenship
goes, Union Citizenship has an anaemic content, and its future function
remains unclear and contested, beyond the explicit claim that it shall
complement rather than replace national citizenship. Historically, citizenship
rights have served to bolster allegiance by protecting against abusive
governments, and by directing state power towards the common good. But
Europeans already enjoy a wide range of civil and political
rights through the European Convention on Human Rights, and by the new
Charter on Fundamental Rights [PDG1](Preuss 1996, 138; {Weale 1998 #16780};
{Moravcsik 1998 #24300}, 54). And Europeans have looked to their own governments
for social rights and welfare arrangements. Thus Union Citizenship can
hardly compete on these grounds. To the contrary, the alleged focus in
the Union on market rights is perceived as a threat to domestic redistributive
arrangements. So Union Citizenship could hardly be expected to solicit
support as a protection against government abuse, or for securing social
rights.
Nevertheless, Union Citizenship can be regarded as a measure to increase
trust among the citizens of Europe. The present reflections pursue this
interpretation.
On Trust - Impersonal Reciprocity
The need for trust arises under circumstances of mutual dependence where
the regular co-operation by each depends on their conscious or unreflected
expectation of the regular co-operation of others - the "confidence
of the future regularity of their conduct" as David Hume put it (Hume
1960, 490). Widespread mistrust, the suspicion that others will exploit
one's co-operation rather than reciprocate, can prevent or unravel complex
rule-governed practices of co-operation. This is not to
say that universal cooperation must be expected by all, since social systems
may be quite resilient faced with free riders. But some extent of mutual
trust is important for social institutions to remain stable over time.
Actual compliance by a large proportion of individuals is important, but
insufficient to ensure such trust. Each must also have reason to believe
that many others will continue to comply in the future, particularly when
compliance by each is conditional on the compliance of others.Each must
regard the compliance of sufficiently many others as highly probable.
This trust requires, in turn, that the others can appear trustworthy -
that they can indeed commitment themselves to future compliance (Hardin
1996).
Karl Deutch and others have researched integration as, in part, a matter
of attaining such dependable expectations in a population (Deutsch et
al. 1957, 36). Trust has recently received further scholarly attention
due to its role in constituting or creating "social capital"
- "social connections and the attendant norms and trust" (Putnam
1995, 665; cf. Loury 1987; Coleman 1990). These features of social relations
are not an all or nothing affair. Thus, notably, citizens of different
states -- and different regions -- exhibit varying degrees of trust (Fuchs
and Klingemann 1999, Putnam 1995).
Institutions and social practices generally can play important roles in
creating mechanisms that enhance trustworthiness by enabling commitments,
thereby reducing unwarranted mistrust (Kydd 2000). Clear lines of authority
and mechanisms for monitoring and sanctions reduce the temptation to free
ride or default on one's promises, and hence reduce the likelihood of
defection by oneself and others. Much research on trust has focussed on
such situations where individuals must consciously decide to place trust,
possibly on the basis of calculations about the trustworthiness of others
(Coleman 1990, 96-104). These arrangements are especially important when
establishing practices, as in the European Union at present, where institutions
can be crucial for facilitating co-operative games.
Institutions also serve other important functions in creating and sustaining
trust. Once stable patterns of co-operation are established individuals
need not decide on the basis of conscious calculations. Indeed, stability
is often enhanced when individuals are socialised so that their perceptions
and preferences make certain behaviour seem obvious and appropriate, or
is simply taken for granted, rather than basing actions on calculation
(Stinchcombe 1986, March and Simon 1993). Institutions may habituate individuals,
shaping their interests and perceptions of alternatives so as to reduce
the inclination to free ride and increase their confidence in the behaviour
of others. Institutions can socialise individuals to abide by norms that
call on unconditional cooperation, regardless of whether others can be
expected to cooperate. Such "Kantian" motivations can be beneficial,
and may help explain collective action (Elster 1985, 150-51). Institutions
can also foster compliance by generating what Lawrence C. Becker calls
"noncognitive" trust, a sense of security about others benevolence
and compliance that is not focussed on specific people or institutions,
nor a matter of conscious strategic choice (Becker 1996). Institutions
can engender expectations of what I will call impersonal reciprocity.
Robert Putnam argues that the operative norm in trust is what he calls
"generalised reciprocity", fostered in civil society: “(N)ot
'I'll do this for you, because you are more powerful than I,' nor even
'I'll do this for you now, if you do that for me now,' but 'I'll do this
for you now, knowing that somewhere down the road you'll do something
for me'" (Putnam 1993, 182-83).
However, stable institutions can also rely both on the unconditional cooperation
mentioned above, and on a more general reciprocity, that "I'll do
this for you, knowing that somewhere down the road someone else will treat
me in the appropriate way me." Such impersonal reciprocity is fostered
by confidence in the general compliance with social institutions -- including
abstract, aggregated political systems (Inglehart 1970; Giddens 1995).
Social practices exhibited in institutions rely on such norms of impersonal
reciprocity, but can also foster them - though slowly (Putnam 1993, 184;
Rawls 1993, 168). The importance of belonging and 'access' signalled by
institutional allocations of rights, such as that of Citizenship, should
not be ignored (cf. Wiener and Della Sala 1997). Rights are important
background conditions that frame individuals' perceptions of belonging
and opportunities for common projects and a shared future. Thus institutions
and practices shape strategies and the games people play, but they also
shape our identities, in the sense of how we conceive of ourselves, our
values, norms and interests. These features have been explored by "New
Institutionalism" (March and Olsen 1989, March and Olsen 1989), honing
insights found among authors as different as Aristotle, J.-J. Rousseau,
J. S. Mill and John Rawls (Rousseau 1972, 4; Rousseau 1993); Mill 1969,
139; Mill 1958 ch. 3; Mill 1970, 23; Rawls 1971).
The need for trust among Europeans
One possible justification for Union Citizenship is precisely
as a means to foster, flag and maintain the mutual, legitimate trust and
trustworthiness required for complex interdependence among Europeans.
Eurobarometer surveys on trust from 1976 to 1990 indicate that the peoples
of various member states generally report an increasing trust in each
other. Trust is also more salient among citizens of the original six member
states, in the sense that more individuals had opinions about others trustworthiness.
Institutional integration thus seems to be accompanied by increased trust
(Niedermayer 1995, 237). But the level of trust is modest, as compared
to the trust in fellow citizens. Yet Union regulations increasingly require
individuals and country representatives to adjust or sacrifice their own
interests for the sake of other Europeans.
I take this to be why the president of the European Commission, Mr. Prodi,
has joined the ranks of those on a "search for a European 'soul'…..
how to gradually build up a shared feeling of belonging to Europe"
(Prodi 1999). Mr. Prodi suggests that several important developments of
Union institutions rest on building this shared feeling of belonging:
"a strengthening of Parliament, use of the right of veto in exceptional
cases and a reorganising of the Commission and its powers". There
are at least four aspects of Union regulations where trust in the compliance
and trustworthy commitment of others is important. Trust is necessary
for compliance with existing rules, for creating regulations, for establishing
and adjusting institutions, and for court adjudication.
a) Compliance with existing rules
In the domestic arena, citizens can assume that others live up to a political
duty of obedience to law. Increased use of majoritarian decisions in the
Union will require similar trust, and hence a better account of why these
procedures should be regarded as binding on conduct. Assurance about the
future compliance of other Europeans is especially important when individuals
are required to act contrary to their own interests, and against the majority
of their fellow domestic citizens, out of respect for the majority decisions
made in European institutions (Scharpf 1997, 21). An extreme example is
the duty to fight for Europe. A common defence policy in Europe may require
that soldiers make the ultimate sacrifice of their own life for the sake
of European values or Europe's future. Member states may be required to
turn their forces over to Union authorities, trusting that the common
military power will not be turned against them selves. Trust in others'
stable compliance is
paramount for achieving and sustaining such practices. The population
at large must also trust the legislators and executive branch. For instance,
if the population perceives that the Commission abuses trust, acceptance
and compliance with its decisions are at stake (Wessels 1999, 268). The
trust in Union officials is at stake in the mundane areas of everyday
compliance with Union regulations, insofar as the public asks whether
decisions have indeed been made with their interests in mind.
b) Creating laws and regulations
Deliberations and decisions concerning Union regulations must also be
based on legislators' trust in the compliance of other legislators. Expectations
of shared commitments are crucial to secure common ends when creating
and administering binding laws and regulations. As more decisions are
made by majority vote rather than unanimity and the European Parliament
gains importance, trust in the commitments and compliance of others becomes
more important. One source of such mistrust could be the findings that
suggests that domestic government officials attending Commission committees
shift their loyalties, from government representatives towards evoking
roles as supranational, pro-integrationist agents (Egeberg 1999, Egeberg
and Trondal 1999, Trondal 2000). Insofar as domestic legislators -- and
citizens generally -- mistrust the commitments of their 'representatives'
in European Union bodies, future compliance is at stake.
Commitments, hence trustworthiness and trust in others can be fostered
by institutions designed with this in mind. Indeed, common commitments
are a crucial product of common institutions. At the same time trust in
the future behaviour of others is a necessary backdrop both for veto and
majoritarian arrangements. Political decision-makers must be trusted to
take others' weal and woe into consideration in conflict resolution and
common decisions. Legislators must trust each other, and be trusted by
the populations, to have a cosmopolitan attitude, so that they "assess
the impact of their law making in terms that go beyond considerations
of national expediency" (De Greiff 2001). Many theorists, perhaps
especially deliberative democrats, stress the importance of exercising
such "public reasonableness" both in shaping one's preferences
and when participating in collective decisions (Macedo 1990). Public deliberation
may be an important mechanism for preference formation, but such effects
are most likely when each expects other participants to adjust their ends
and preferences likewise (Femia 1996, Przeworski 1998). That is: participants
must trust each other to be committed to adapting values, aims and preferences
in light of what each takes to be the best reasons. Otherwise participants
run the risk of exploitation by those who pursue their own unbridled self-interest
under the guise of common interests. Carefully designed institutions can
economise on trust, for instance by careful sanctioning mechanisms, but
the need for trust in the future actions and commitments of others cannot
be removed completely. Thus individuals must be able to make credible
commitments so as to convey their trustworthiness to others.
In a similar vein, veto powers easily lead to deadlock in the absence
of trust. No one must fear that others will veto extensively to their
own advantage. Likewise, regarding preference aggregation through day-to-day
majoritarian voting, the minority must submit while trusting that future
minorities will do likewise (Taylor 1969, Barry 1991). When important
one-shot decisions are made by majority or qualified majority vote, trust
in the majority's commitment to also consider others' interests becomes
even more important. Likely minorities must be confident that the majority
will take their interests into account. Thus Jürgen Neyer notes that
Commission proposals to the Standing Committee on Foodstuffs often seek
to reflect the interests of all Member States. The Commission does this
in order to ensure compliance which "is only likely to happen when
delegates see their own legitimate concerns acknowledged and protected
in the decision-making procedure" (Neyer 1999, 225).
c) Creating institutions
A third case where trust is important is when institutions are created
or modified in (quasi)constitutional conventions. The European Intergovernmental
Conferences regularly recast institutions in such ways, most recently
in Nice December 2000. If not yet evident, we can expect the institutions
of the European Union to shape participants' motivations and values in
the future (Checkel 1999; 2001), and create and affect arenas of deliberations
and decision among and within states. Trust in the shared commitments
and likely future behaviour of others is important when establishing institutions
with such important impact both on identities and outcomes. Given these
high stakes, citizens and their representatives must be reasonably secure
that their interests are considered and respected by other participants.
Individuals must not only trust others to comply with existing institutions,
but also believe that others will change institutions guided by shared
values or ideals, e.g. concerning the proper allocation of tasks between
the Member States and the Union. A Principle of Subsidiarity, or some
other guiding principle, can guide such institutional changes (Follesdal
1998). Only then can the parties expect that the new modes of decision-making
will both foster the appropriate common commitments and secure fair outcomes.
If the Union remains a polycentric political order with federal elements,
with competences split -- or even shared -- between Member States and
Community institutions, the question of institutional stability becomes
even more important. This is even more so if the future holds "Multiple
Europes" of asymmetric federal arrangements where Member States have
different bundles of competences. Historically, the institutions of such
multinational federations have been less stable than those of unitary
states -- especially ({Kymlicka 1998 #24290}, {Lemco 1991 #22890}). A
central challenge is to maintain trust in the co-operation of others during
the frequent challenges to competence allocation between the central unit
and sub-unit, while secure loyalty both to the particular group and to
the state (cf. Lijphart 1977, 81-83; Mason 1999, 282). Arguably, trust
in a shared commitment to some common ground is even more important in
such asymmetric and changing polycentric orders. The participants must
find ways of making credible commitments.
d) Courts' rulings
The fourth area where trust is necessary concerns the adjudication of
Community regulations by domestic courts and the European Court of Justice.
Citizens must trust the court to interpret the legislation correctly,
according to the fundamental ideas and ends of the Treaties. If citizens
repeatedly fail to be assured that the Union is based on the rule of law
and fundamental principles, they will question whether the costly compliance
required of them is justified.
A fundamental challenge in these cases is to ensure that Europeans, both
ordinary citizens and officials, have grounds for trust, that is: the
mutual expectation that they comply with common laws and regulations,
and that they create new institutions and rules guided by a common commitment
to the European weal. One important function of Union Citizenship is to
bolster such trust, by facilitating the ability of individuals to appear
trustworthy in their commitment to future compliance. If
successful, Union Citizenship can serve as a beast of burden to secure
the requisite trust among Europeans at large. By invoking a concept central
to notions of legitimate governance, talk of Union Citizenship invites
assessment of the European Union according to conceptual schemes and normative
ideals of democratic political orders. The same arguments that support
domestic political obedience and facilitates trust among citizens, may
also apply to the political order of the Union,
and support trustworthiness and mutual trust among the citizens, politicians
and bureaucrats of Europe. Section 3 suggests how Liberal Contractualism
might provide the requisite component ideals and norms of Union Citizenship.
However, we must first consider some general objections to this understanding
of Union Citizenship.
2 Union Citizenship - contributing to mistrust?
Union Citizenship may well have been introduced to enhance
trust among Europeans among themselves and towards those who govern Europe.
But this move may also be counterproductive, since talk of Union Citizenship
may increase the level of mistrust. Citizenship invokes standards of legitimacy
that may destabilise rather than consolidate the European political order.
Neither the political will, nor the resources, may be available to establish
institutions that satisfy such standards. Union Citizenship may also contribute
to the demolition of a European political order in the making, since citizenship
is said to require, rather than foster trust. For these reasons one may
counsel caution about introducing the office of Union Citizenship -- quite
yet.
Trust as precondition
A functioning and legitimate democratic political order
may foster trust in the good will and compliance of others. A stable order
also requires trust among citizens as a precondition, as sketched above.
But neither means of committing oneself to future compliance, nor arenas
for political deliberation and preference formation exist in Europe at
present. Others' commitment to the common European weal is required, but
not yet secured.
In response to this worry, we should note that the development of a European
sense of commonness might be a dynamic process. Common institutions -
such as citizenship, or common social policies - can help create collective
identities and solidarity, thus building trust. (Preuss 1995, 277-78;
Streeck 1996; fn64 and 74; cf. Putnam 1993, 184; Rawls 1999, 112). A consequence
of shared institutions may well be to create the appropriate will to live
together (Preuss 1996), and to secure the shared communication and commitments
necessary for legitimate majority rule (Habermas 1998, MacCormick 1997,
353).
The role of institutions in shaping perceptions, preferences
and options suggests that pessimism on the basis of current absence of
trust is premature (Follesdal 2000). Nevertheless, we should heed Dieter
Grimm's concern about the present absence of a European public sphere
and other prerequisites for democratic rule (Grimm 1995, 293-94). Institutions
should economise on trust while at the same time fostering the means for
credible commitments among Europeans. For such reasons, majority rule
may best be introduced only gradually -- as we indeed witness in the successive
treaties.
Citizenship may foster institutional redesign
[PDG2]'Citizenship' begs the question of the normative authority
of Union institutions: why, if at all, should individuals and officials
regard Community regulations as morally binding on their conduct, imposing
on them a moral obligation to comply? Answers would typically refer to
the normative legitimacy of Member States as signatories of the treaties.
But the label 'Union Citizenship' indicates that the future European order
must satisfy democratic principles harking back at least to Jean-Jacques
Rousseau and Immanuel Kant (Rousseau 1978, 1760; Kant 1980). Equal respect
requires that those subject to laws should also be legislators with an
equal say -- also in matters European.
Community-level institutions increasingly shape the lives, circumstances
and aspirations of Europeans. Union regulations enjoy status as a new
legal order, exercising legal authorities through the doctrines of Supremacy
and Direct Effect (Weiler 1991; MacCormick 1997). Combined with the lack
of standard-issue democratic control over the Union, these considerations
lead to the question whether individuals are still full citizens of their
own state, or whether they are merely subjects of the Union -- their "Union
Citizenship" notwithstanding ({Closa 1992 #17730}).
The offices and institutions of the European Union are to be assessed
by the democratic normative ideals of constitutional law and political
philosophy concerning polycentric governance. As of yet, the Union institutions
fall far short of such criteria. Insofar as Union Citizenship highlights
these deficits, it may serve to reduce, rather than enhance the support
and trust Europeans exhibit towards each other and their common institutions.
In response to this worry, it seems clear that talk of citizenship may
fail to provide the desired support for existing institutions. However,
the conclusion is not automatically that the normative political ideals
and standards of democratic governance should be scrapped. This would
run counter to the traditional critical function of normative political
theory in the Western tradition.
An equally sound conclusion is that the concept of Citizenship bolsters
demands for institutional redesign, so as to secure continued, willing
compliance with coercive institutions. This actual impact of the European
Union supports the view that the Union must be regarded as [PDG3]a Commonwealth
in David Hume's or John Locke's sense. It must be regarded and assessed
as a body politic founded on law for the common "weal," or good,
"directed to no other end but the peace, safety, and public good
of the people" (cf. MacCormick 1997). Currently, the institutions
and practices of European governance are not visibly designed for democratically
decided ends, witness the persistent concerns about a 'legitimacy deficit'.
Discussions exhibit disagreements both regarding diagnosis and about democratic
remedies appropriate for polycentric political orders (Shaw 1997a, 16).
The need to enhance democratic control is unavoidable given the political
impact of the Union. Talk of 'Union Citizenship' does not create these
tensions, and they do not disappear by abolishing the term. Only solutions
to the legitimacy deficit of the Union can secure
long term trust among Union Citizens. However, it remains to be seen whether
there is political will for such changes -- and whether resources are
available to allow for such changes. Political craftsmanship must rest
on awareness of not only the scope, but also the prerequisites and limits
to institutional redesign (Olsen 2000 and Joerges, Mény, and Weiler
2000 generally).
The following sections explore a Liberal Contractualist account of the
commitments required of citizens if Union Citizenship indeed is to facilitate
the trust required for a just and stable European political order.
3 Citizenship: Commitment to Practices and Political Theory
I shall suggest that a normative theory of citizenship must
require that citizens be habituated to three sets of commitments if it
is to facilitate the requisite trustworthiness and trust among Europeans
required to acquire and maintain legitimate institutions. Other components
are of course also important, for instance substantive political, social,
civil and economic rights. But for the purposes of facilitating trust,
our concern is three commitments that citizens must have. Firstly,
citizens must actually comply with existing rules. This is important,
but insufficient. Citizens must also have reason to believe that others
will continue to comply in the future. Such trustworthiness, essential
for stability, can be maintained by a publicly known, generally shared
commitment to comply for what each person regards as good reasons in the
form of a thin political theory. Such a theory would include a commitment
to principles of legitimacy for institutions. The third common
commitment is to the immediate premises for such principles, for instance,
a conception of citizens as equal members of the multi-polar political
order.
One such thin theory is offered by Liberal Contractualism, sketched here
for purposes of illustration. The substantive normative content is not
central to the issue at hand[2].
Liberal Contractualism
Liberal Contractualism is a normative tradition, Kantian
in form, that holds that every affected individual's interests, suitably
delineated, must be secured and furthered by the social institutions as
a whole (Rawls 1971; Rawls 1993; Dworkin 1978). Contractualist theories
hone this vague commitment by invoking the notion of hypothetical consent
(O'Neill 1989). The principles of legitimacy we should hold institutions
to are those that the affected persons would unanimously consent to under
conditions that secure and recognise their status as appropriately free
and equal, thus manifesting "our respect for the reasonableness of
others" (Macedo 1990).
Such principles allow each of us to "justify one's actions to others
on grounds they could not reasonably reject" (Scanlon 1982, 116;
Scanlon 1998; Barry 1989, 8). This Kantian conception holds that individuals
are committed to a highest-order interest in living together with others
on terms they could not reasonably reject. We respect persons when our
policies satisfy the appropriate set of principles, much in the same way
as Barbara Herman interprets Kant's use of the Categorical
Imperative (Herman 1997, 192).
The details of this contractualist commitment need not concern us here,
beyond noting that Contractualism takes [PDG4]the fact of pluralism seriously.
The apparently permanent persistence of partially competing conceptions
of the good life creates additional burdens for providing common grounds
for accepting - and rejecting - principles.
Contractualist citizenship requires three sets of commitments. Individuals
must be committed to the local practices and institutions that surround
them. Moreover, they accept and act on a thin political theory that includes
normative principles of legitimate governance. Thirdly, citizens accept
the immediate justification of these principles, premised on conceptions
of the roles and duties of citizens and of the multi-polar European political
order including both their Member State and the
Union. This order must be perceived by citizens as a complex system of
co-operation that expresses the inhabitants' equal standing.
We now turn to consider how these three commitments can ensure Union citizens'
mutual trust in the co-operation of other citizens and officials regarding
the four tasks identified above: of compliance, creating laws, creating
institutions, and adjudication. The claim is not that Liberal Contractualism
is the sole solution to the problem of trust, but rather to illustrate
how stability can be secured by some such thin political theory of the
European Union.
Commitment to Principles of Legitimacy
In Contractualism, individuals are assumed to have a highest
order interest in acting on principles no one can reasonably reject. For
instance, in John Rawls' theory Justice as Fairness, individuals are assumed
to have a "Sense of Justice". They are "capable of having
(and are assumed to acquire) a sense of justice, a normally effective
desire to apply and to act upon the principles of justice, at least to
a certain minimum degree" (Rawls 1971, 505).
Such principles, duly worked out for multi-polar polities, serve several
roles in accounting for stability. One is to provide critical standards
for assessing existing, concrete institutions. These accounts secure some
shared bases for compliance, while maintaining the possibility of a critical
stance.
To avoid ill-targeted criticism, we should note that to act (up)on principles
does not mean to be motivated by abstract principles alone, rather than
by a variety of values and other reasons. David Miller criticises the
focus on abstract principles characteristic of Constitutional Patriotism.
This, he holds, is insufficient: “(T)he national identities that
support common citizenship must be thicker than 'constitutional patriotism'
implies. If we are attempting to reform national identity so that it becomes
accessible to all citizens, we do this not by discarding everything except
constitutional principles, but by adapting the inherited culture to make
room for minority communities” (Miller 1995, 189).
I submit that acting on principle does not mean to be solely motivated
by principles. Instead, such principles guide action and policies, by
constraining the set of local culture and legislation that imposes moral
duties on us. Principles guide action by ruling out certain policies as
unacceptable, requiring others, and often leaving a range of permitted
policies.
Note that such principles provide reasons for or against policies, but
are not efficient causes (O'Neill 1996, 82). They do not supplant individuals'
concrete plans, and such principles do not "give a plan to those
that have none" (O'Neill 1989, 84). A commitment to act always consistent
with principles does not provide the sole motivation for individuals'
actions. It is misconceived to regard such a commitment to principles
as a commitment only to abstract principles, rather than also to the
concrete institutions that embody them, and the actual decisions that
flow from such procedures.
Another criticism questions whether liberal theories can identify values
at the level of abstract principles and ideals that are unique to one's
own community (cf. Miller 1995, Tamir 1993). There are no obvious and
attractive values accepted only by Europeans yet acceptable as legitimate
common grounds (Closa 1998, 425, Baubock 1997). In response, note that
[PDG5]the need for trust among citizens does not require that the shared
values are unique to the participants. General compliance among one group
does not require that others be excluded.
The principles - and indeed the political theory - need not be unique
to Europeans. The role of shared commitments is to ensure stability in
the sense of compliance with existing institutions, and appropriate adjustment
of institutions and constitutions. The fact that other just institutions
exist elsewhere, or that they might be somewhat more just does not by
itself generate a duty on our part to abide by them, because they do not
exist among us and apply to us.
Commitment to existing Legitimate Institutions
Several authors register the hope that a civic demos must
be possible, based on a commitment to a common constitutional order specifying
procedures for reaching politically binding decisions. Ethnically or culturally
based 'belongingness' worries. Instead, a commitment to such more abstract
principles expressing respect must suffice [PDG6][PDG7](Ackerman 1980,
69ff.; Preuss 1996, 275; MacCormick 1996, 150; MacCormick 1997, 341; Habermas
98)
How, then, does a commitment to existing practices and institutions enter?
The commitment to principles of legitimacy will express itself in other
ways, perhaps primarily by hesitating to accept illegitimate laws as morally
binding, and instead work for their improvement. Individuals are bound
to existing institutions in other ways. The Contractualist motivational
assumption stems, I submit, not from principles of legitimacy but by what
John Rawls calls individuals' Natural Duty of Justice.
This duty:
“… requires us to support and to comply with just institutions
that exist and apply to us. It also constrains us to further just arrangements
not yet established, at least when this can be done without too much cost
to ourselves” (Rawls 1971, 115).
T. M. Scanlon defends a similar Principle of Established Practices, for
circumstances when there is a need for some principle to govern a particular
kind of activity, but there are a number of different nonrejectable principles
that would do this. If one of these principles is widely accepted in a
community it is wrong to violate it simply for matters of convenience
(Scanlon 1988, 339. Becker's notion of 'conscientiousness' (Becker 1996,
56) appears to address the same concern). I shall
suggest that it is this duty that accounts for individuals' political
allegiance towards their own laws and institutions, discussed further
below.
A complete justification of an existing and just set of institutions,
or for a proposed institutional change, may refer to principles of legitimacy,
their immediate premises, as well as elements of our shared history and
our existing practices[PDG8]. When we argue for compliance with or change
of the existing institutions and culture we must do three things. 1) We
must show that these institutions satisfy the relevant principles of justice.
2) We must support the empirical claim that this particular set of institutions
does in fact exist in our society. These rules are publicly known and
generally complied with. 3) We must show that compliance with some such
set of cultural rules and institutions is necessary for stability - maintenance
of institutions over time.
When an institutional change is proposed, we must also include a fourth
task. 4) We must show that some such change is required for the sake of
important interests of citizens, given the conception of citizens and
the political order. The suggested change respects legitimate expectations
as far as can be reasonably expected (against a backdrop of alternative
institutional changes, grandfather clauses etc.) Thus a thoroughgoing
justification of our institutions over other just ones must refer in part
to our shared history, the general acceptance of these rules etc. Clarification
about the actually shared values and practices of European states may
thus serve important and legitimate purposes as part of task 2. I take
Jean-Marc Ferry to be making this point when holding that a political
community in Europe can draw on universal elements embedded in national
political constitutions and international law (Ferry 1992).
On this account, a thoroughgoing justification of the binding force of
our institutions on us, over other just ones contains, in part, appeals
to our shared history, the general acceptance of these rules etc. Thus
we may agree with Miller about the importance of "the historical
identity of the community" (Miller 1995, 163). A benefit of the account
I have sketched is that these contractualist theories can accommodate
and justify special duties and the value of community, based on an ideal
of the individual as deeply embedded in social relations -- while maintaining
a critical perspective.
It may appear that this account gives undue significance to morally arbitrary
specific cultural practices that happen to be maintained in a society.
In response, I agree to the factual point. This account recognises the
moral significance of existing, legitimate social practices, institutions,
and a shared history. However, the Natural Duty of Justice only applies
to legitimate local institutions, namely those that satisfy the appropriate
principles of legitimacy. Individuals are not bound by this duty to illegitimate
practices. The commitment to existing practices requires a broad range
of knowledge about the central, legitimate expectations of citizens affected
by the common institutions (cf. Gunsteren 1988, 736). All citizens should
have knowledge of the main cultures that have adherents in the political
community, so as to ensure that changes respect (though not necessarily
abide by) the important expectations of such groups. But such knowledge
does not require acquiescence in the permanent maintenance of such cultural
practices and institutions.
This commitment to existing institutions also helps deflect criticism
against Contractualism as excessively abstract, that citizens need only
be committed to abstract principles. The institutions and the political
culture are important. The content of the Contractualist commitment is
not to abstract principles, but also the institutions properly enacted,
specified in a constitution, and their results, namely concrete laws and
political practices[3].
For illustration, compare this view with David Miller's, who has recently
argued that a conception of nationality built on a "shared public
culture" is required to secure stability (Miller 1995)[PDG9]. It
is not clear that stable compliance requires a shared, broad basis of
fundamental beliefs and commitments of the kind
typically referred to as a national identity, that "depends upon
a pre-reflective sense that one belongs within a certain historic group"
(Miller 1995, 143). While such a basis may suffice for trust, it is unclear
that such a basis is required (cf. Follesdal 2000). An important issue
is precisely what needs to be shared in order to secure continual support
and trust in future compliance. The Contractualist position laid out here
does not deny the need for support for a common culture. The question
is
rather which elements of broadly shared values and practices are acceptable,
and what reasons are provided for maintaining some traditions. Insofar
as these traditions are factors shaping individuals' legitimate expectations
and values, these practices and institutions are for this reason worthy
of respect and prima facie protection.
One might argue that it is only a common commitment to actual institutions
that is required, and not a commitment to principles. Thus Andrew Mason
holds that "liberal regimes can be sustained by a sense of belonging
to them" (Mason 1999, 279). This commitment to the actual institutions
does not extend to the individuals participating in them, or to the principles
or to the national identity. This may seem close to the "impersonal
reciprocity" mentioned above.
In response, three remarks. Firstly, disagreement about the content and
boundaries of various rules and practices still has to be adjudicated
-- particularly so in the European Union, where further clarification
about the competences of Community institutions will be addressed at the
next intergovernmental conference. The interpretation of practices is
seldom uncontested, particularly over time. Such interpretations will
partly be made and assessed by appeal to the 'spirit of the laws', to
more general principles, or some other standards. So even on their own
terms, such accounts would include some role for shared values or ideals.
Secondly, what seems necessary for trustworthiness is both a sense of
duty to comply[PDG10] with the institutions, and that this is public knowledge.
Others can not be relied on to comply in the long-term future if the sole
reason for compliance is an unreflective acceptance of existing norms
of appropriateness, or a stalemate between factions not yet powerful to
overrule the others. Rather, each person will trust others to comply if
she can be certain that others also willingly comply when
this commitment to (conditional) compliance is common knowledge. Such
trustworthiness seems to require shared premises that justify compliance
with the institutions.
Thirdly, general compliance with institutions does not remove mistrust
among legislators when new rules and institutions are to be created. Trustworthiness
in such situations can be fostered by way of publicly accessible premises
for adjusting and creating these new practices. For instance, more is
needed to be trustworthy than claims that one promises to hold on to electoral
procedures and such concerning the political procedures. These elements
themselves need to be justified. And during
times of institutional change, the individuals must be reasonably certain
that others will work to establish institutions according to their conception
of the common
good, rather than exclusively in light of their own self interest.
Commitment to Conception of Individuals and the European
Political Order
The common grounds needed for stability include the commitment
to existing institutions, and to shared principles of legitimacy. Moreover,
citizens must also share the immediate grounds for principles, for instance
as in the Contractualist case, ideal conceptions of the ends of the political
unity, and some conception of the proper relationship between individuals
and the political order. Such a conception would play the role of Rawls'
well-known conception of society as a system of
co-operation among individuals regarded for such purposes as free and
equal participants -- though that particular conception may be insufficient
and/or inappropriate for the European Union. The Union is a non-unitary
political order with Member States and Community institutions splitting
and sharing sovereignty. The appropriate political theory for such an
order may be legitimately different that that of traditional political
philosophy addressing the legitimacy of the unitary, sovereign nation-state
(such as Rawls 1993, xxii). Some indication of the proper allocation of
competences between sub-units and centre, for instance, should be provided.
Why is this kind of commitment necessary? The reason is that a consensus
on principles of legitimacy and institutionalised procedures seems insufficient
to convince others of one's trustworthiness regarding future compliance
with these procedures. Others' present compliance does not by itself give
us reason to trust that they will continue to respect democratic procedures
-- we also need assurance that they regard themselves as having reasons
to continue to comply in the future. Moreover, the trust needed in the
European Union now also concerns the creation of institutions, and their
interpretations by courts. In order to secure compliance over the long
term such changes and interpretations must be accepted as legitimate expressions
of equal respect among citizens of different Member States, rather than
by expediency or arbitrary consensus alone. The changes and interpretations
must be guided, and it would seem that the present content of a constitution
would provide too little in the way of guidance (cf. Rawls 1993, 165).
Some justification is required, where a common commitment to the principles
of an existing constitution must be supplemented by some further ideals,
principles or the like -- avoiding substantive premises that are reasonably
contested. Disagreements about the proper division of competences between
Member States and the Community institutions, for instance, may diminish
support and compliance by citizens and government officials. Politicians
will suspect civil servants sent to Brussels of harbouring inappropriately
supranational loyalties, due to loyalty shifts by the civil servants (Trondal
and Veggeland 2000). On the other hand, shared conceptions of the roles
of Member States and the Community, e.g. in the form of a suitably specified
Principle of Subsidiarity, can serve to bolster trustworthiness and reduce
such mistrust (Follesdal 1998)
To illustrate, consider Kurt Baier's notion of Constitutional Consensus
(Baier 1989). Baier holds that commitment to certain institutions should
suffice for stability - what he calls a "Constitutional consensus".
All that is needed is consensus "on the procedures for making and
interpreting law and, where that agreement is insufficiently deep to end
disagreement, on the selection of persons whose adjudication is accepted
as authoritative" (Baier 1989, 775). I take it that this basis is
close to that of Jürgen Habermas' "Constitutional Patriotism":
“The constitutional rights and principles form the fixed point of
reference for any constitutional patriotism that situates the system of
rights within the historical context of a legal community. … the
citizenry as a whole can no longer be held together by a substantive consensus
on values but only by a consensus on the procedures for the legitimate
enactment of laws and legitimate exercise of power”. (Habermas 1998,
225) It is unclear how this basis can provide the mutual trust necessary
for constitutional changes, or for institutional development and application
on the bases of political judgement. Competing conceptions of the appropriate
procedures, and about the ends of the polity threaten the long-term stability
of co-operation and the ability to
make credible commitments -- witness the debates in the wake of statements
by Joschka Fischer and Jacque Chirac ( 2001).
Habermas holds that the "democratic process itself can provide the
necessary guarantees for the social integration of an increasingly differentiatied
society" (Habermas 1997, 133). However, this is not obvious. Even
though others may currently accept the democratic process, their reasons
for accepting may disappear for instance if they gain power. Hence, trustworthiness
would seem to require at least knowledge about the reasons others have
for accepting these procedures. A
second reason why current agreement about procedures is insufficient is
that a disagreement about their justification threatens the possibility
of agreeing to change the procedures. For instance, Habermas' arguments
regarding the criteria for an ideal speech situation are contested, both
on account of the premises and the argumentative steps (cf. Olafson 1990,
Heath 1995, Larmore 1996, 205-21).
One might agree to the need for democratic procedures, and there may be
a happy consensus on the actual procedures. But such consensus may easily
fall apart when it comes time to change the procedures. When such procedural
changes are required, trust in the process is greatly facilitated when
parties can bolster their trustworthiness by appealing to some common
ground, e.g. in the form of a thin conception of the Union Citizen and
the appropriate division of labour between
Community and Member States.
Against this third commitment, it may be objected that there is at present
no agreement on ideals and political theory, even of this anaemic kind.
Andrew Mason concludes from this fact that shared reasons - for instance
in the form of principles of equality or justice - seem unnecessary, since
different conceptions of these principles do not hinder compliance. Citizens
may value the same institutions, but not share the principles because
there are contested conceptions of the ideals of
equality, justice or freedom (Mason 1999, 281).
Mason seems to be right in that present compliance does not require common
principles. However, the issue of trust concerns expectations of others'
future behaviour. Now, such trustworthiness may be secured by public presentation
of each person's or group's reasons, showing that each, from their own
normative grounds, has sufficient reason to comply and act on appropriate
reasons, at least as long as the compliance of others is expected.
However, we must recall that the need is not only for compliance with
existing institutions. Individuals also need assurance that others have
reason to comply and use their political power as voters and politicians
to further the just arrangements, and vote for laws sometimes out of consideration
for the common good rather than unbridled self interest. These various
accounts must be quite elaborate and detailed, to avoid fears of non-compliance
that fosters mistrust and instability.
Alternatively, individuals may share reasons or ideals, which may make
it easier to appear trustworthy. Such strategies cannot be dismissed by
pointing to present disagreement about conceptions of equality, justice,
etc. Such disagreements merely indicates that future compliance is not
secure - and thus that individuals are unable to appear trustworthy, and
hence that the current order is not stable.
In response, I submit that these possible discrepancies between institutions
and normative political theory are not necessarily a weakness of the theory.
They may equally well be weaknesses of the institutions, highlighted by
a normative theory of this kind giving content to the vague appeals to
'the European Common Weal', a European Soul' and the like. That talk of
citizenship may increase conflicts, and not only induce support, should
come as no surprise: governments have often
discovered that citizenship rights have "the potential for exacerbating,
as well as diminishing the conflict of classes" (Goodin 1988). And
introducing citizenship rights for citizens of Member States immediately
highlights the plight of permanently resident non-nationals. The introduction
of Union Citizenship introduces fundamental inconsistencies in current
citizenship practice both within many states and within the European Union
as a whole (Baubock 1994, 220; Meehan 1993, Follesdal
1999). Indeed, the present institutional arrangements of the European
Union conflict with central norms of legitimate governance as hitherto
secured in Europe, such as accountability and transparency, equal respect,
and a set of social institutions that secure fair shares of economic and
social benefits. The lack of transparency and accountability of bodies
with political authority in the European Union seem incompatible with
any plausible interpretation of a commitment to equal respect for all.
Insofar as these assessments are correct, loyalty to these institutions
should not be forthcoming, as they fail to satisfy principles of legitimacy.
However, the Duty of Justice introduced above would require of all that
they work to establish such fair institutions.
Conclusion
A broad range of liberal views hold that Union Citizenship
should draw on and foster only a very limited set of shared aims, far
less than that historically aimed for in European nation states. The present
reflections have focussed on the role of some notion of Citizenship in
securing trustworthiness, stable compliance and willing support among
Europeans for the institutions and practices - since such perceived needs
seem to have fuelled the call for Union citizenship.
A limited normative basis is regarded as possible partly because Contractualism
and some other theories postulate a different motivation for individuals'
compliance than 'sentiments of affinity', namely a sense of justice. A
central question to this account is whether this inherently 'abstract'
motivation and the abstract sense of solidarity which is based on universalistic
principles of social justice can motivate, and be sustained over time
(Preuss 1995b, 275). Any citizenship, and any shared identity, may be
thought to require empathy generated by appeals to such shared characteristics.
However, even existing nation states are usually too large to foster empathy
and sympathetic concern for the weal of all others (Calhoun 1996, 3).
And still they seem to enjoy sufficient support from citizens -- at least
for the time being.
Alternative justifications of equal respect and full citizenship -- as
well as welfare rights -- are required also within existing polities (Goodin
1988, 78). The contractualist account assumes a more 'impersonal' motivation:
the interest in doing our moral duty. This account is based on individuals'
sense of justice and mutuality, expressing respect for others, rather
than a sense of community or 'thick' identity, or empathy.
Liberal Contractualism, as several other theories, assumes that institutions
can socialise individuals into a "sense of justice". Individuals
can come to see themselves as free and equal participants in a joint European
scheme of co-operation that requires the compliance of a large proportion
of the population.
This commitment is not only to some very general principles of justice,
or to abstract constitutional principles. Acting on a sense of justice
entails interacting in our day-to-day lives with other individuals in
accordance with the legitimate expectations they have about our behaviour,
honouring their trust in our responses. The sense of justice includes
a commitment to honour the legitimate expectations of other citizens,
with a shared conception of justice and the appropriate relations
between individuals and the European multi-polar polity uniting them.
The account of justification sketched above accepts an account of the
practices one is embedded in as a part of, but only one part of, a full
justification of the institutions. Yet Union Citizens need not share a
full conception of the common good, nor a sense of common end in the sense
of a Manifest Destiny (O'Sullivan 1845) of geographical or political annexation
of Europe.
I have explored the role of citizenship in securing trustworthiness and
mutual trust among the population and among representatives in the governing
bodies of the Union. I have suggested that a commitment to institutions
and even to constitutional norms is insufficient to ensure stability:
what is needed is also fragments of the immediate grounds for such principles.
A shared conception of the proper role of individuals, member states and
the Union may provide such common grounds -- to
the extent that it is needed to ensure trust and stability.
The introduction of Union citizenship created aspirations and shortfalls
between the required commitments to common ends necessary among citizens,
and the actual level of shared commitments. Discrepancies between present
Union institutions and the normative theories of legitimacy exist, but
these conflicts cannot be resolved by dismissing any attempt at bringing
normative political theory to bear - particularly not when the call for
Union Citizenship seeks to exploit the resonance with received accounts
of legitimate government. Union Citizenship commits the political order
to principles and conceptions for legitimate governance, apparently in
blithe
ignorance of whether the requisite resources are available for building
such institutions. If these conditions are found and secured in the European
Union, Union citizenship can serve as a beast of burden to facilitate
mutual trust among the citizens of Europe.
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[1] The research for this paper was funded by ARENA – a program of
Advanced Research on the Europeanization of the Nation State, under the
Research Council of
Norway, and by the EU TSER program (SOE 2973056) on European Citizenship
and the Social and Political Integration of the European Union. The paper
benefited from
discussions at the Roundtable on “European Citizenship” at the
World Congress of Philosophy, Boston 1998. I am extremely grateful for
conversations and
correspondance with Stefan Gosepath, Jos de Beus, Carlos Closa, Pablo
De Greiff, John Erik Fossum, Neil MacCormic, Johan P. Olsen and Ulf Sverdrup.
Their constructive
comments have lead to extensive rewrites.
[2] For some such contributions, cf. Lehning 1997, Lehning 1998.
[3] I believe similar interpretations are possible regarding Jürgen
Habermas' claim that Constitutional Patriotism is a sufficient common
base. While Liberal Contractualism
differs from Constitutional Patriotism in ways explored below, they share
a commitment to the constitutional order Habermas 1996, 500; Habermas
1990, 257), and seek to
minimise the reliance on contested values in response to the challenge
of pluralism (Habermas 1998, 225; cf. Habermas 1997, 118 and Habermas
1992, 16). For an
exploration of this account, cf. De Greiff 2000?). I do not deny that
alternative interpretations of Habermas seems possible, eg. when he writes
that the requisite "identity of
a political community, which may not be touched by immigration, depends
primarily upon the constitutional principles rooted in a political culture
and not upon an
ethical cultural form of life as a whole." (Habermas 1992, 17, my
emphasis).
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