In a nation state those who are citizens of the state are by default members of the national demos. The demos at-large bestows legitimacy upon the authorities. In exchange, the state in its various functions exists to promote the general good, or the national interest, which among others includes national safety, social peace and cohesion, and, in democratic systems, a set of fundamental rights and values that provide and safeguard personal and collective freedoms.
The nation state is the only entity within a predefined territory that enjoys the right to exercise legitimate force, or else sovereignty. It is the application of this principle that provides a binding effect to its statutes and policies. The law is an expression of sovereign authority. It is the ultimate instrument for regulating intersubjective relations within the territorial confines of the state. The tool for formulating the specifics of the national compact and for determining such cardinal issues of social organisation as the distribution of resources, or the scope of individual freedom in relation to the needs of the community. The power of the state to perform these vital functions renders manifest the first aspect of national sovereignty: state sovereignty.
In a democracy the demos lays the foundations of legality by agreeing on a primary corpus of law, a constitution, or by recognising the law developed through its historical-cultural tradition as the legal fundament for the democratic institution of society. It is the primary law that ultimately determines whether the statutes, decisions, or actions of the state are legitimate and in line with the letter and spirit of the national compact. The legitimation function of the demos, the fact that it sets the specifics of the constitution, reflects the second aspect of national sovereignty: popular sovereignty.
The people provide the state with the power to govern. Yet the people qua demos only exist by virtue of the relevant legislation that regulates citizenship. There is no body of citizens in a legal sense if its members are not citizens of the state. And therein lies the virtuous feedback loop between state and popular sovereignty. In a democracy both need to be present. There can be no legitimate democratic polity without the demos and there can be no properly defined citizenry without state fiat.1
We may think of modern democracy as a constituted polity, a compact between the state and the demos, a virtuous feedback loop of state and popular sovereignty; founded on a predefined corpus of primary law; predicated on the separation of the state’s functions and the decentralisation of its authority; where the executive rules for, by, and with the people; where the judiciary is the ultimate arbiter of the legality of the legal order; where statutory acts are formulated by representatives of the demos in accordance with the rule of the majority, without infringing the inalienable rights of the minority and the irreducible capacity of every person to perform their role as citizen in sharing the public good; and where the political order is framed and bound by the law of the international community at-large, with the universal values it recognises.
The missing link for a European demos
The non-legal characteristic of the demos is its self-consciousness as a community of citizens. One of the reasons the nation state has been an enduring political construct through the centuries and remains at the heart of international relations, is that the national demos functions as an organic whole. The people do feel a sense of belongingness to their fellow citizens. They share the same or similar traditions, collective memories and narratives, are likely to speak a common language, have the opportunity to participate in the same public activities, abide by a uniform legal code, and, above all, are willing to live in that nexus of norms, rules and institutions as citizens.
This disposition is the sense of national identity, or else banal nationalism.2 People tend to be proud of being part of their nation. It is the glue that keeps the demos together. Statutes may confirm the national identity and regulate it further, but they cannot foster it on their own. Interpersonal confirmation among the people is needed. And it is this very sentiment of national belonging that underpins the interchangeability of the concepts “national” and “citizen”.
In a European context, every national of an EU Member State is by extension a European citizen.3 A strict legal interpretation of this fact would lead to the conclusion that there exists a fully fledged, over-encompassing European demos. Such inference would be erroneous. What is missing is the non-legal element: the necessary social attitude for togetherness. The basic solidarity that is more or less a constant within nation states.
In terms of the EU constitutional order, European citizens think of themselves as primarily nationals of their respective state, with the EU dimension being an addition to whatever benefits their nationality grants them. We claim thus based on the revealed preferences found in the very design of the EU, in particular:
- Nations as the EU constitutional subject. Nation states are the basic building blocks of the European Union. Their governments formulate, sign, and ratify the primary law of the Union, its “constitution”. The EU does not have sovereignty of its own but only whatever set of competences is explicitly conferred to it by its constitutive nations.
- Intergovernmentalism in day-to-day politics. EU Member States collectively are the most important actor in European politics. Through the institutions of the European Council and the Council of the EU they engage both in forming and making European rules. Additionally, all EU funds come from national contributions, meaning that the European level cannot implement an outright European fiscal policy, say, for the sake of tackling unemployment.
Intergovernmental affairs are the outward expression of multiple banal nationalisms. If citizens did not prioritise their respective national interest, they would put pressure for establishing an outright European government. This tendency would be expressed in the medium-to-long-term ambition of national governments. Inter-state politics would be set along the path of becoming superfluous.
Ambitious or perhaps unrealistic expectations aside, for as long as the national interest takes precedence over the European interest, there can be no fully realised European demos. To that end, intergovernmentalism will remain a defining feature of EU federalism.
Mismatch between popular and state sovereignty
Against this backdrop, we cannot consider the EU to have the virtuous cycle of legitimation germane to national democracy, at least not in a direct form.
State sovereignty exhibits a high degree of uniformity in those areas of policy where the EU has competence. Decisions are adopted at the European level and are implemented throughout the Union.
Whereas popular sovereignty remains compartmentalised along national lines. National interests are being represented in a multitude of ways. There is no equivalent European interest. What ends up being the European good is a negotiated result—a grand compromise—between competing national agendas.
This mismatch contributes to the overall indirectness of European democracy, which can be further qualified as (i) indirect input legitimacy and (ii) indirect accountability.
As concerns input legitimacy, European citizens do not have the right to directly elect the European “government”. The EU’s implementing executive, the European Commission, has its political leadership appointed in office. The Commission is supposed to be an apolitical, technocratic entity: the “guardian of the Treaties”. Regarding the Union’s deciding executive, the European Council, it is composed of the heads of state or government of the Member States. They are elected on national platforms. The political leader of Germany is decided by the Germans, that of France by the French, and so on. The Europeans as a whole do not get to choose their “head of state or government” in EU-wide elections.4
The effects of such arrangements are particularly evident on the accountability front. The EU has no supranational procedure whatsoever for holding accountable the European Council as such. If the citizens of a Member State do not like their government they can vote it out of office. If they do not approve of the European Council, they can do nothing as a unified whole. The only way would be for each national demos to elect a new government following national procedures. Notwithstanding the logistics and impracticality of such a venture, it would not be founded in EU law. It would rather be covering a glaring omission therein.
The constitutional order of the European Union is designed in such a way that what applies in a national democratic context does not hold true for the European level, at least not in its fullness. A European demos does not exist as a self-conscious whole. What is present courtesy of EU law is, at the very best, a demos manqué.
As for sovereignty and the democratic order it founds, the EU exhibits an overall indirectness and incompleteness, which may imply suboptimality, in both the modalities of its legitimation and the procedures for its accountability.
This is the Union’s sovereignty mismatch, which we may define as the absence or malfunction of the virtuous feedback loop of democratic legitimation between popular and state sovereignty.
Whether it is a design flaw of the European architecture or an immanent characteristic of politics on a continental scale is subject for another discussion.
We could name this “democratic sovereignty”. Perhaps though that is a superfluous qualification since a sovereign state in the modern international legal order has to be democratic or, more generally, to partake of certain universal values. ^
“Banal nationalism” is just the widespread sentiment of belongingness to a nation. It should not be confused with nationalism, an ideology that prioritises—even exalts to the extreme—the national construct over every other facet of the polity and usually is intimately linked with ultra-conservative, authoritarian politics. ^
The only EU institution that enjoys direct input legitimacy is the European Parliament. That still is not enough to change the bigger picture where the Parliament is but one of the many parts—and not the most important one. ^