Normative aspects of the future European Democracy

2015-07-28

This post is archived. Opinions expressed herein may no longer represent my current views. Links, images and other media might not work as intended. Information may be out of date. For further questions contact me.

In a number of previous posts, I have mentioned the need for a European Democracy to operate along republican principles. Apart from some features already present in the EU order, such as the separation of powers, there is a number of normative criteria not currently satisfied. These namely are:

• constitutional order: a bottom-up legal framework founded on a corpus of primary law that represents the sovereign will of a people, this typically being a single document—the constitution—though that is not necessarily the case;
• legitimacy: several processes at Union level have not been directly legitimated, instead their legitimacy is derived indirectly while their accountability is justified solely by their alignment with their EU-law-defined mandate or remit;
• sovereignty: the EU suffers from an emergent contradiction, a sovereignty mismatch, for while each of its member states enjoys sovereignty, there exists no Union-level state representing the interests of the Union at-large and, a fortiriori, there is no sovereign European People underpinning such a polity;
• autonomy: the essential feature of a democracy is that rules are made by us and, by that token, we can choose to amend them; democracy in its proper sense is a political system predicated on self-rule/autonomy in contrast to other systems characterised by heteronomy, where the law is perceived as exogenous to popular will.

In this article I dedicate a section to each of these issues. The gist of my argument is that apart from the surface aspects of a political union—the fact that it is named a “political union”, that it may be federal in design, etc.—there also exist a number of substantive aspects that need to be present in the broader edifice for it to qualify as genuinely democratic.

Constitutional order

The European Union (EU) as well as Europe’s Economic and Monetary Union (EMU) are founded on a series of international treaties. These provide the basis for Union law. They are its de facto constitution. Due to that the system features the following:

• league of states: the supra-national stratum derives its legitimacy from Member States; the constitutional subjects are states not people, meaning that at best the architecture as a whole is only indirectly a democratic one;
• common rules without common politics: as exemplified in the EMU, the absence of a sovereign state representing the supra-national level, implies the lack of common politics; a vacuum which is only filled by a rigid system of common rules that are subject to definition by technocratic experts or those governments who, in an inter-governmental setting, have the upper hand in circumstantial power relations;
• quasi-confederal technocracy: in the vacuum of a common policy-making-policy-forming sphere, Treaties and the laws predicated on them provide a certain scope for authority and initiative that is to be exercised by a number of predetermined institutions or entities, suggesting that (i) key qualitative judgements rest on technocrats, and (ii) the scope itself is insulated from parliamentary review, for no parliament, be it the European or any given national one, can change the mandate of those very institutions or entities.

For the constitutional order to be genuinely democratic each of these issues needs to be addressed, so that:

• uniform polity: instead of having a society of sovereign states bound together by Treaties, there needs to be one state, operating along federal lines, which is predicated on a single primary corpus of law, a constitution;
• common politics with common rules: the kind of parliamentary principles and procedures that apply to European nation states need to become the standard modus operandi at the European level, so that every policy and aspect thereof is ultimately determined by the parliament, rather than a set of Treaties outside the purview of parliamentary control;
• federal democracy: Europe’s executive function needs to enjoy an outright popular mandate, with the commensurate capacity to initiate legislation (no more dependence on the European Council or any inter-governmental body); a power that needs to be bestowed on a European Parliament/Congress consisting of two directly elected chambers (House of Representatives and Senate) that both have the right to initiate legislation.

The above provide the outline of a constitutional order where the object—the polity—is a federal state, while the subject—the People—is only the body of European citizens. The latter represents the dual role of citizens as inhabitants of a place and members of a political space, hence bicameralism. The European citizens as a whole and practically divided in constituencies elect the Parliament (House of Representatives) and the European citizens in their respective state elect the Council of the EU (Senate).

Strictly speaking, the Congress does not draw its authority from two distinct constitutional subjects, but from a single subject—the People qua citizens—performing two separate functions in pursuit of a common end: to reconcile and to harmonise the good of the space with the good of the place. The institutional heterarchy between the two chambers reflects the equality of those functions.

Legitimacy

It has become customary to draw a distinction between input and output legitimacy. For instance, it is suggested that projects such as the euro are legitimised by virtue of their output of, say, ensuring price stability across the euro area (eurocrisis notwithstanding). The policies therein are for the people and, hence, it is claimed, they are legitimate because of it.

As with notions like the “democratic deficit”, I find those terms to be misleading and such reasoning to be inadequate in grasping the emergent phenomena of European integration. If it is held as a universal truth that the output of a policy necessarily legitimises, at least in part, the agency and/or the structures producing it, then it would follow that a dictatorship can also be considered morally just by virtue of its stratagems being “for the people”. Though this is definitely not what political analysts intend to claim when using such technical terms, it is nonetheless the logical extension of their applied line of reasoning.

Instead of conforming with a nebulous terminology that will eventually engender erroneous thinking, let us use age-old distinctions of legitimacy and accountability. That way we can make a step forward in describing, for instance, a technocracy as what it actually is: not properly legitimated, not always or fully accountable.

A polity can only be considered as enjoying democratic legitimacy when it is founded on popular sovereignty, its legal order is the instantiation of popular will, and the loci of its authority are the legislative and executive powers both of which are given a democratic mandate, while simultaneously being held accountable to the people.

This is a feedback loop, a virtuous cycle, where the sovereign people legitimise their state to exercise authority over, with, and for them, without the state and individual instruments thereof ever becoming alienated from the sovereign will of the people. As for institutions or structures tasked with technical operations, their discretionary power is limited by their accountability before the sovereign people as well as their mandate or remit as stipulated in the constitution (which must also stem from the popular will).

Legitimacy in the sense here outlined is a substantive democratic quality. It is intimately linked to popular sovereignty. It is inseparably attached to the popular will.

If language indeed influences our perception of the world, of the way we think of things, then such notions as “input/output legitimacy” better be avoided. They may be useful for esoteric, academic discussions, yet their incorporation in everyday palaver may lead to confusion and fallacious inferences or conclusions. Furthermore, they can be used to beautify a suboptimal state of affairs or to obfuscate and conceal the fact of a sub-par political order (e.g. the EMU as it currently stands).

Sovereignty

This section covers a topic I have discussed at greater length in [at least] two recent articles: (1) On the inaccurate notion of “shared sovereignty”, and (2) The emergent contradiction of Europe’s inter-governmentalism. I here try to present their main ideas.

Europe’s fundamental problem is that there exists no Union-wide state, underpinned by popular sovereignty, which represents the interests of the Union at-large. The system is inherently inter-governmental.

While each Member State is sovereign in its own capacity, the aggregation of Member States, their totality, does not—and cannot in and of itself—foster a greater sovereignty. Instead a mismatch arises: state-like powers are exercised throughout the Union’s (or the EMU’s) compass, without them being based on a uniform body of citizens that outright legitimises them.

The kind of virtuous cycle of democratic legitimacy that applies to the nation state, is not made manifest at the European level, exactly because of said mismatch. The paradox of a quasi-confederal technocracy that emerges from a club of democracies, can also be explained on those very grounds. By adding to that the fact that the supra-national level is based on Treaties decisively insulated from parliamentary review, we realise that this architecture is quite different from what we have come to expect from a modern democracy.

The sovereignty mismatch at the heart of the European project can only be addressed by the formation of a European body politic. A European demos will be made manifest, will exercise its sovereign authority, when/if it substantiates the constitution on which the future European Democracy will be founded. In the meantime, any measure aimed at reducing the dependence on inter-governmental modes of deciding or governing, is to be welcomed.

Autonomy

Democracy is not instituted once. The democratic status of a political system is confirmed continuously. Rules ultimately rest on popular will and are subject to change should the people choose so (a mind-dependent reality as I noted in a previous essay On the inevitability of austerity). The process of confirming democracy is essentially the method of ensuring that whatever concerns the polity does not degenerate into becoming alien to the citizens. This is autonomy or self-rule, self-institution. We may add that autonomous rule-formation, in the substantive constitutional sense, is endogenous.

When political entities or states of affairs, be it an official body, a policy, even an elected representative, are decisively divorced from the popular will, we witness the emergence of heteronomy. The source of authority becomes exterior to the totality of participants in the polity—the citizens—so that any outcome thereof is not aligned with—or springs from—popular sovereignty. The process of legal-political institution becomes exogenous, while producing faits accomplis with which citizens are effectively forced to conform with.

In light of the arguments propounded in the previous sections, I consider autonomy to be an intrinsic quality of democracy. There can be no democracy in which the political order either in full or in part is kept outside the scope of popular rule and sovereign will-formation.

Currently, Europe’s supra-national level is mostly characterised by heteronomy. Treaties cannot be amended by ordinary parliamentary procedures. The accountability of institutions such as the European Central bank leaves much to be desired, while entities such as the quasi-legal Eurogroup and the formal institution of the European Council take decisions behind closed doors. As for the constitutional aspects, we already covered the following:

• there is no European People qua constitutional subject of a European constitutional order;
• the primary legal corpus of the Union—the Treaties—can only be changed by Member States through unanimity.

This emergent indirectness effectively renders the supra-national level exterior to any and all particular sovereignties. In the absence of a sovereign foundation supporting the Union at-large, heteronomy is intrinsic to the present order—it is there by design, even if never intended.

Political Union and Democracy

For the European Democracy to be precisely that, I would suggest that all of the above need to be inherent in the political system. That granted, I admit to be a bit more cautious—or less enthusiastic—than the typical panegyrist of “political union”. It is one thing to federate nation states into what is an effective confederation (a society of states); it is another to unite peoples under a democracy (a society of citizens) that happens to be federal for practical purposes.

The ideas for future integration entertained by many fall within the former category, whereas I am among those who would rather opt for the latter. I prioritise the substance (democracy) over the form (federation).

This should not be taken as a maximalist, “all or nothing” approach, but only as a principled stance for what is considered ultimately desirable and optimal, even if it may not be immediately realisable within the prevailing circumstances.

A certain political union is better than none. Yet, as we have seen with the formation of the EMU, or more recently with how inadequate the EU’s response is to the influx of refugees, a given degree of integration, even if preferable to no integration at all, may still leave much to be desired.