On Habermas’ European Democracy

2015-02-16

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Contents:

• Introduction
• The prospects for a European political community
• The internal contradiction of twin sovereignty
• Conclusion

Introduction

Professor Jürgen Habermas is, in the humble opinion of the present author, one of Europe’s most eminent thinkers and a very important figure in the academic discussion that surrounds or informs the European integration process.

In December 2014 Habermas published a working paper titled “Democracy in Europe: Why the Development of the European Union into a Transnational Democracy is Necessary and How it is Possible”. The purpose of the present article is to provide a commentary on the assumptions and arguments put forth by the esteemed professor, in parts to criticise, in others to further elaborate on the theme concerned.

It is recommended that the reader is well acquainted with Habermas’ paper, before venturing to read any further. Still, some excerpts from his work will be included herein, always under the principle of fair use, for the sake of contextualising certain arguments.

The prospects for a European political community

To argue for a European democracy is to suggest an ex post legitimation of legal-institutional structures and political arrangements already present and operational. The creation of a European federation is not supposed to derive from or in nothing. It is to be a qualitative and, in several parts, juridical-technical alteration of a certain order so that it eventually qualifies as democracy, properly so called.

A European democracy, to the extent that it succeeds the current EU architecture, and given the fundamental necessity for Treaty changes, is to be the end product of [a large part of] intergovernmental politics. It will be destined to assume a substantively supra-national status and will thus stand as antithetical to the very inter-national modus operandi that will engender it. Such is the core tension underlying an integration process driven by the objective to achieve an “ever closer Union”.

It is highly unlikely that a European democracy could be formed in the same way nation-states were constructed, i.e. as a constitutional order that substituted the dynastic, autocratic, theocratic, feudal structures that preceded it while assimilating several of their elements. The reason being that the factors in interoperation that fostered such historical phenomena are no longer present, at least not in the same way and to the same degree.

The nation-state cannot be conceived without its two primary tenets: (i) the transcendent presence of the nation, the ethnos, as an exalted “essence” that the actual citizenry/people partakes of, and (ii) the identification of the “nation” with the “state” which serves to render the latter as consubstantial with the community of its subjects and, hence, as legitimate qua state by virtue of the people’s very presence.

While it may be true, as Prof. Habermas argues, that the idea of a national identity, with the magma of significations attached to it, was superimposed on — and ultimately became the overarching characteristic of — existing communities, a “European nation” cannot be of the same sort as the nations it will ultimately have to supersede.

The original argument for nationalism could enjoy a certain plausibility when juxtaposed to the polities then-existing, especially wherever ethnos and demos would be perceived as overlapping. The same cannot be said for a political-community-to-be that is geared to encompass existing nations, and to bind them under a common identity that is expected to be the homogeneous compound of multiple heterogeneous elements.

It is far-fetched to expound on some “essence” that underpins such a theoretical European nation, when the peoples who will actually form it already have fixed perceptions of belonging and of nationality deeply rooted in their lifeworld. A “European nation” or rather a European political community cannot rely on the same sort of romanticised concepts that permeated the politics of modernity. In this period of post-Enlightenment there needs to be openness as regards the applicable instruments and the sought ends.

Even if all nations are products of a rather recent epoch, the popular perception often is otherwise: that nations are natural, organic entities. Against that set of beliefs, a European nation will not only struggle for subconscious approval, but will eventually fail to remain robust to a range of shocks concerning identity. It will be quite easy and rather persuasive for those opposing the idea of a European polity to call for the return of the “true” nation when both it and this hypothetical European one are made directly comparable by means of their common denominator.

Instead, the conventionality of the broader enterprise need not be obfuscated by some dubious teleology, but be embraced as the main factor of differentiation vis-à-vis the traditional perceptions. A European political community will have to sever its ties with the essentially nationalist worldview it seeks to replace, so as to stand as our era’s paradigm of a self-conscious instituted community.

In fact, European integration already has some elements of this sort of conventionality. At its best, the European Union exists as a political entity that makes manifest, at least to a degree, the common will of peoples to coexist in solidarity toward one another within a nexus of shared values for the purpose of fulfilling objectives they have in common. Integration has hitherto not been driven by the idea of some “European nation’s” presence and the related normative propositions for pursuing fulfilment and the “national interest”, but as a conscious commitment to an evolving political order that can — or that has the potential to — deliver a more favourable state of affairs than the one each nation-state could achieve independently.

While it may appear laudable, such is far from an ideal setup. It is for all practical purposes what an economist would label as “economies of scale” applied to politics. Yet if that is a valid assertion and the EU is the political space for the realisation of the otherwise technical objective of shepherding economies of scale, then a substantial portion of policies, those peculiar to economic organisation, the objectives of fiscal as well as monetary policy, are removed from the political sphere and placed in the hands of technocrats, with the consequence of European integration becoming the process of the technocratisation of the aspects of political life that were once democratic.

The main flaw of the present European edifice is its input legitimacy, especially when compared to the standard enjoyed at national level. The EU is a functionally-driven state-in-formation with federal, confederal and intergovernmental facets. It is an organisation stemming from international treaties that has gradually assumed several quasi-constitutional powers. Whether these are formally recognised as constitutional or are accepted under the pretence of them being mere practical arrangements is open to debate. Regardless of whatever the consensus may be, the EU has competences on a range of issues that clearly override national policies.

At this stage in the European integration process, the indeterminacy of the European state’s properties stands as the single most important factor of its democratic deficit.

Some institutions represent federal entities with the European Parliament being the primary example. Others are anchored in intergovernmentalism, such as the European Council and the Council of the European Union. The European Central Bank can be considered federal with two important caveats: (a) the disproportionate institutional independence it enjoys, and (b) the lack of a counter-party treasury with adequate fiscal capacity that would indirectly render monetary policy as genuinely federal (note: the fact that the recently-announced expanded asset purchase programme is conducted on the basis of each member-state’s capital key is not in line with any sort of federal approach to tackling the problems of deflation and sluggish aggregate demand).

The European Commission remains in a grey zone, as it assumes the executive function, its current president — Mr. Juncker — was indirectly qualified for his position by virtue of being the top candidate of the largest political group in the European Parliament — the European Peoples Party —, it does initiate the legislative process which delivers “federal” laws and, generally, appears to have a structure that could be the blueprint of a genuine European government. Yet the Commission is also made up of one Commissioner per member-state; a condition that most probably has to do with intergovernmental expedience than practical necessity. Also the impetus to the Commission’s initiatives is provided by the European Council, an intergovernmental entity par excellence. Lastly, the European Commission is this awkward hybrid of a political and a technocratic entity, which is expected to simultaneously shape European policy, monitor the implementation of secondary legislation and be the “guardian of the treaties”.

The Court of Justice of the European Union may also fall in a similar grey zone, courtesy of the uncertainty surrounding the constitutional status of the supranational judiciary vis-à-vis its national counterparts.

Another vector for heteronomy is the fact that the EU is founded on international treaties. A constitutional reform cannot be initiated and completed in the same way the equivalent process would occur at the national level. For amendments to the Union’s legal cornerstone to be made a revision of the Treaties is necessary, with its concomitant need for unanimity among the government’s of the member-states, their respective parliaments and/or electorates. Because of the overall difficulty of altering the European Treaties in ways other than incremental modifications, its effective corpus of rules and values enjoys a status of pseudo-permanency.

Put simply, the implication is that European citizens, either jointly as a de jure demos or separately as political subjects of the member-states, are severely constrained in their efforts to place their fundamental policies in the ordinary procedures of democratic politics.

The problem is compounded by the shortcomings of intergovernmental politics. That each government is democratically legitimised by its citizens does not mean that the collection of democracies fosters a composite, “greater” democracy. In fact, elected representatives of some states that happen to be on the positive side of the equation in the overall experience of asymmetric shocks, when and where these occur, are better-equipped to use their position of supremacy to exert pressure and/or impose conditions on the representatives of the states that experience the most pernicious effects of the shock. The eurocrisis years alone feature several instances of elected governments across a number of countries being forced to implement policies that were in direct contradiction to their very own beliefs and commitments to their voters. Time will tell whether the new Syriza-led Greek government will be the next to defy its own principles and violate its popular mandate…

Furthermore, the fragmentation of any community of citizens is evident even at the most democratic of EU institutions: the European Parliament. Deputies are, at least partially and in varying degrees of intensity, forced to do national politics from Brussels/Strasbourg. The reason is that their election and continuing presence in office hinges on procedures that are strictly confined to national borders. Instead of putting their own spin on European issues, many MEPs are cast into a mould of having to defend their respective nation-states’ interests. It thus is not uncommon to witness conflicting views in Parliament, even within political groups, coagulate along national lines (disclaimer: the present author has worked as a parliamentary assistant to an MEP for 2.5 years — all opinions are strictly personal).

Against this backdrop the above-mentioned tension of aiming to create a supranational democracy with international instruments appears to be acute, while the remote possibility of a “European nation” becomes even less plausible. The way to circumvent whatever antinomy may exist in this setup has been to continue to outsource national policies to the European level, technocratising them in the meantime, in hope of ultimately solving whatever incompatibilities/crises would result therefrom by retroactively transferring the corresponding sovereignty.

This method takes the form of gradual changes to the legal order that are meant to address inadequacies in the present state of European integration, while themselves are generating structural flaws and longer-term validation errors by virtue of their underlying intergovernmentalist shortsightedness and general ad hoc purpose. The systemic crisis of the Euro and the regime of measures that was concocted in response — fiscal consolidation coupled with deflationary policies that enforce a downward spiral of impoverishment, salami tactics in case-by-case Memoranda of Understanding with countries experiencing asymmetric shocks, a retroactive legal framework in the form of the Two-Pack, Six-Pack, Fiscal Compact etc.— is the most recent case that comes to mind.

The result is that further integration is treated as an inevitability, a necessary evil geared to correct the errors created by previous steps in the process. This artificial feedback loop needs to be broken if European democracy is to be pursued. It is readily apparent that the effort to adjust the policy framework without abandoning the intergovernmental approach is destined to perpetuate a suboptimal state of affairs. There is a breaking point though that should not be underestimated: when the impracticality of the venture is fully exposed by the deleterious conditions it has fostered. To that end, the rise of populism and political extremism throughout the continent can in many ways be interpreted as the knee-jerk, albeit self-destructive, reaction to the status quo.

A European political community will not come at the end of the road now walked by the powers that be nor can it be the continuation of nationalism on a grander scale. It requires a shift in the conventional wisdom underpinning EU politics and an overall change in the perception of identity and community. Integration can no longer be presented as both an inevitable solution to existing problems and an a priori good under the sole claim that such issues are better dealt with at the European level. Additionally, the narrative for European integration need not be that of an exogenous impetus, i.e. that European nations have to be bound up together to face “the challenges of globalisation” or whatever bugaboo. That is a politics of fear and negation not affirmative will-formation, ill suited to the substance of a conventional identity the European community need be based on.

The internal contradiction of twin sovereignty

Professor Habermas finds a solution to the aforementioned structural malignancies of the EU in the double sovereignty of the European citizens and the European peoples/nation-states, who will become the constituents of the European democracy. To quote at some length (p.13-14):

The most we can expect is to throw light on two competing objectives that the respective proponents regard as non-negotiable. The formation of a supranational federation, but one situated above the organizational level of a state is de facto advanced farther than people are aware of; now, under the pressure of problems in the banking and sovereign debt crisis, the key issue is how the legally produced realities can gain a foothold in the consciousness of citizens in order to continue the project with the two conflicting goals: the supranational polity that is empowered by further competencies to act in relevant policy fields should, on the one hand, be allowed to exercise its jurisdiction only in democratically legitimate ways, without, on the other hand, depriving the member states of the measure of autonomy that enables them to oversee for themselves the conservation of the normative substance that our national democracies already historically embody.

The best possible outcome of this discussion is that the citizens harmonize their two allegiances when they push ahead with the integration process as if they had participated in the constitution-building process from the outset as equal subjects in the dual role as future citizens of the Union and as current national citizens. If this shared intention of all parties could be qualified, in turn, as the result of a process of democratic opinion- and will-formation, then the last remaining gap in in our scenario of democratic legitimation would be closed. From the viewpoint of political theory, this “higher-level” constitutionbuilding process differs from all preceding ones in the sense that the informal discussions that usually precede the formal constitution-building processes, but which have to be recuperated in our case, now acquire an additional legitimizing function.

Following in the footsteps of the two constitutional revolutions of the late eighteenth century, many more constitutional states have been founded right up to the present day. All of these constitutional foundations can be understood (at the requisite level of abstraction) as replications of the two original founding acts in Philadelphia and Paris. As is now apparent, the creation of a supranational democracy, by contrast, cannot be understood on the same model of a two-stage process according to which a constituting of the state powers underlies the political procedures within the constituted polity. A more suitable model here is instead a three-stage one in which the existence of democratically constituted nation-states is already presupposed. With the citizens who want to defend the historical outcome of previous constitutional revolutions, a subject comes into play that now empowers itself to serve as another constituting authority.

Unlike the case of the revolutionary popular sovereign, this is of course not a case of self-empowerment in the strict sense. The self-empowerment of the national citizens to engage – once again, so to speak – in constitution-building at a higher level depends on the consent of a classical popular sovereign, which now comes on the scene in the guise of the totality of European citizens and must be willing to divide its constituent authority. With the prior constitution of a higher-level sovereignty itself – hence, with the agreement between the two designated constitution-building subjects – the classical picture of a constituting and a constituted level is supplemented by a further dimension that once again underlies the actual constitution-building process.

What the professor is effectively propounding is a bicameral system where the European Parliament has representatives of the citizens, the Council of the European Union representatives of the states and both are treated as equals in the ordinary legislative procedure. The “detail” however is the sovereignty that nation-states will continue to have, manifested in the very federation (or confederation?) Prof. Habermas envisages. The two subjects in his view are the European citizens as a whole and the European peoples/nation-states, as if the legitimacy of states is independent from the former’s presence.

The inner antinomy in this double or twin sovereignty is that it seeks to achieve a transnational democracy along the lines of a federation without casting aside the nationalist shibboleths that would obstruct genuine trans-border communities. As was already noted above, the legitimacy of the nation-state derives from the perception that the magnitudes of “nation” and “state” are connatural. Unless we are willing to remain oblivious to the actuality of things, we cannot treat both as ontic. The ostensible transcendence of the nation is a figment of the imagination that has served a particular function in a given historical-civilisational milieu. By the same token, the atemporal presence of the state as the embodiment of such national transcendence is spurious.

Legitimacy is bestowed on and recognised in an interwoven set of intersubjective and interobjective relations. It is extrinsic, not a property germane to them. The claim that the nation-states can be political subjects and bearers of legitimacy independent from the people(s) rests on the dual assumption of the nation-state’s intrinsic legitimacy and independent presence. It furthermore places an ex ante constraint on all issues pertaining to territoriality, for if the nation-state has such independent presence so do its claims on its territory persist even within the supranational polity and in spite of it. Why “should” that be the prescription in advance if better alternatives may be found within a European polity freed from such presumptions?

The need to preserve whatever constitutional achievements hitherto does not provide justification to Habermas’ “double sovereignty”. Whatever constitutional value is deemed worthy of preservation can be an element of the civic political community or indeed remain part of the legal order at local level, divorced from the imaginary substantivism of nationality. As for whatever peculiarities may exist at that level, a European democracy will not render them obsolete by virtue of its polycentric functionality. Besides, many are not even contingent on a certain legal order as they derive organically from their respective communities and are largely irrelevant to the constitutional setup of the democracy/federation.

We have already noted that the European polity is best framed as an outright self-conscious instituted community, a civic identity based on shared values. As such and contrary to a typical nation, that identity, that clear-cut social contract will annul itself if its values/provisions are violated, whereas in the nation-state’s case the polity continues to be regardless of its qualitative parameters (how a dictatorship can supersede a democracy and vice-versa without the discontinuation of the state — courtesy of the nation’s perceived transcendence).

The preservation of the nation-state’s fundamental claim to sovereignty represents a case of configuring a system in such ways so that it is cumbersome, resistive to fundamental change and inimical to structural modularity. Much like the present EU architecture is. Legacy issues need to be definitively dealt with, so that European democracy can make an unencumbered start. The intention is to operate within a framework that will enable evolution, constitutional innovation, rather than be an anchor in the past that will suffocate whatever progressive impulse and condemn the project to effective stagnation.

Twin sovereignty may be a diplomatic way to present the case for a European federation and might indeed be effective in that respect. In terms of an actual constitution, it would be undesirable. Bicameralism is a sound proposition, yet it does not have nation-state sovereignty as its prerequisite. The European citizens as a whole elect the Parliament and the European citizens in their respective constituency elect the Council of the EU (note: I first heard the idea of elected representatives to the Council from @ruitavares). Those are not two distinct political-constitutional subjects, but a single subject — the citizens — in two different functions that pursue the same end: to bring together and to harmonise the good of the space with the good of the place. The resulting institutional heterarchy between Parliament and Council is one of equality between functions.

To further elaborate on the inner contradiction inherent in the professor’s positions, let us examine the following (p.12):

Such a federalized, but supranational Union would also deviate markedly from the federal model. Interestingly enough, current EU law includes a range of important provisions that, on the assumption of a sovereignty shared by European citizens and peoples, can be understood as legitimate deviations from the model of the federal state:

• the principle of limited conferral of powers, which ensures that European institutions do not acquire ultimate decision-making authority;
• the right of member states to leave the Union, where the qualifications governing the exit process throw an interesting light on how the original sovereignty of the acceding state had been “divided,” but not completely “forfeited”;
• the ordinary legislative procedure in which Council and Parliament are involved on a par;
• the equal participation of European Council and Parliament in the election of the president of the Commission;
• the right of review to which the national constitutional courts lay claim in order to prevent European law falling below the level of democratic and legal expectations achieved in the member states;
• the primacy of European law over the national legal systems that is justified only in functional terms and not in terms of the general priority of federal over national competencies;
• strong competences of the member states in implementing European decisions, which ensure that the supranational polity does not assume the character of a state;
• the decentralized monopoly over the use of legitimate force, which remains with the member states;
• the principle of subsidiarity that serves to maintain the organizational structure of the member states and protect national ways of life.

These principles and provisions can be understood from a reconstructive perspective as a logical expression of democratic will-formation in a constituent assembly that has a complex composition in the sense outlined. To this extent, the European Treaties already prefigure an at once federally and democratically constituted supranational polity.

What is outlined above is the set of elements substantiating a pseudo-_confederation_, a union of nation-states featuring a supranational stratum with largely technocratic character and competencies. These principles rest on a variant of the tenet of double sovereignty Habermas expounds on — intergovernmentalism — while they contain the questionable suggestion of a distinction between citizens and peoples.

The principles related to decentralisation within a federation do not rest on nation-state sovereignty but on polycentric functionality, empowered by a single corpus of legitimacy. They emanate from the need of the political subject to reconcile the general with the particular good, a need that is situational and contingent on the specifics, not transcendent and presupposed.

While the professor does indeed recognise national identities as imaginary he erroneously insists on dividing European citizens and peoples, effectively setting in stone the presence of the latter qua national and nationalistically defined. It is that very preservation of the antiquated identities and pre-formulated assumptions about the groups that has engendered the afore-enumerated principles which define the EU architecture as is, i.e. as a malfunctioning status quo.

Conclusion

The purpose of the present blog post is to elaborate on the substantive aspects of a constitutional order that would ground a European democracy. The impetus to this piece of text was provided by Professor Jürgen Habermas’ working paper titled “Democracy in Europe: Why the Development of the European Union into a Transnational Democracy is Necessary and How it is Possible”.

In the two preceding sections we began by outlining the prospects for a European political community, suggesting that it better be a self-conscious instituted community, an identity based on values. To argue thus, we mentioned the problems of the present EU setup and how the underlying nationalism of the intergovernmental modus operandi prevents the materialisation of the most optimal states of affairs.

We then turned our attention to the core tenet of Prof. Habermas, his notion of “double sovereignty”. Our concern is that it entails a continuation of the substantive aspects of intergovernmentalism. In his effort to support his claim the professor has ventured into dubious methods of dividing a single subject into two. His support for bicameralism, instead of being predicated on the two functions of a single constituting subject — the citizens — to harmonise the good of the space with that of the place, stems from an inherently self-contradicting twin sovereignty of the citizens as a whole and the peoples/nation-states as such.

In conclusion, the disagreement is not found in the sought end, the European democracy along federal lines, but on what will be the starting point of such a polity. Our view has been that of altogether overcoming the reification of the nation and of dismissing modernity’s chimerical notions of collective political self; the professor’s is that of steadfastly clinging on to them, stretching them to fit on a grander scale.

The preservation of nation-state sovereignty, the implementation of such an atavistic concept in a democratic and federal edifice, will place a severe limitation on the European polity’s potential that will restrain its capacity to evolve into something new in this era of post-Enlightenment.