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  EU construction

EU construction

Albert Weale and Mich Nentwich ”Political theory and the EU”

Ch.1 Legitimacy and the European Union.

Following Beetham´s analysis of political legitimacy as a multi-dimensional concept, comprising different elements of legality, normative justifiability and legitimation. Political power is legitimate to he extent that:

 It is acquired and exercised according to the established rules (legality); and


The rules are justifiable according to socially accepted beliefs about (1) the rightful source of authority and (2) the proper ends and standards of government (normative justifiability); and

positions of authority are confirmed by the express consent or affirmation on the part of appropriate subordinated, and by recognition from other legitimate authorities (legitimation).

Leaving aside for the present the form of legality characteristic of liberal democracy (constitutional rule of law) in order to concentrate on the key dimension of normative justifiability, we can identify its distinctive source of authority in the principle of popular sovereignty, and its acknowledged ends of government to be the protection of basic rights (freedom, security, welfare, albeit in variable or contestable order). Each of these legitimising criteria is complex, though in different ways. From the principle of popular sovereignty derives the electoral authorisation of government, and the criteria of representation, accountability, and, so forth, that comprise the manifestly democratic aspects of legitimacy.

Legitimation is a feature of all political orders. Legitimacy of a liberal democratic system depends on three criteria: an agreed definition of the people or political nation as defining the rightful bounds of the polity; the appointment of public officials according to accepted criteria of popular authorisation, representativeness and accountability; and the maintenance by government of defensible standards of rights protection, or its routine removal in the event of failure. Of course the particular form these criteria take in any given country will depend upon its distinctive tradition and historical evolution, including the survival of pre-democratic modes of legitimation.

Legitimacy in the European Union legitimacy as the EU enjoys must be quite different from that of these states which compose it, and more akin to that of other international authorities, whose membership comprises states rather than individual citizens. This is a legitimacy constructed on the one hand at the level of legality- superior jurisdiction to which national legal systems are subordinate- and on the other at the level of legitimation- the public recognition and affirmation by established legitimate authorities- rather than at the level of normative justifiability.

This is because the EU does not need them for its effective operation. Its addresses are primarily member states and their own legal authorities; and it no more requires obedience and cooperation from ordinary citizens than do NATO, the WTO or the UN itself.

First, viewed as a regulatory regime, EU law impacts directly on citizens, as producers, employees, consumers, etc., and requires their acknowledgement of it as binding on them, and therefore their recognition of the EU as a rightful source of valid law. This is evident, for example, across the range of quota policy- the preservation of fish stocks, the reduction of agricultural surpluses, the rundown of rust- belt industries- where decisions jeopardise the livelihood of individuals directly and have significant distributional consequences. The tendency of national governments to offload the odium for such decisions very publicly onto the EU only makes the issue of its legitimacy more, not less, salient.

Second, from a dynamic point of view, the development of the EU historically has exposed the inadequacy of a legitimacy confined to elite consensus. The debates over Maastricht demonstrated the vulnerability of the EU to popular countermobilisation, and the necessity to secure not to only public support for the expansion of its powers, but also a more direct legitimacy for the institutions that were to exercise them. Whatever disadvantages greater transparency and accountability may bring for the distinctive modes of EU decision making, it is now commonly accepted that the further extension of jurisdiction needs to be balanced by a larger electoral and parliamentary role. Those who are opposed to be balanced by a larger electoral and parliamentary role. Those who are opposed to the former will also oppose the latter. The issues of the EU´s legitimacy and the extension of its powers are thus intimately connected.

A final reason for treating the legitimacy of EU institutions seriously is the impact it has on the legitimacy of the member states themselves. The later can no longer be regarded as independent of the former. Just as it was the acknowledged deficiency of individual nation-states in market regulation and economic performance that led to the surrender of powers of the European level, so the latter´s performance affects the standing of national governments for good or ill. So too, the inadequacy of parliamentary…

Ch.3   Democracy, legitimacy and majority rule in the European Union.

…democracy is said to be missing in the EU…

Institutions, as all other rules that regulate behaviour, should be legitimate in several senses. We are only morally obligated to obey normatively legitimate institutions. That is, they must be justifiable to the `demos`, to all affected parties. Normative legitimacy requires a presentation and justification of such principles of legitimacy for the EU, as well as transparency of its institutions. Only then can the public assess whether principles of legitimacy are satisfied. At present, we have neither such a theory of justice, nor the requisite transparency. These flaws are in part due to the lack of constitutional dimensions to the institutions of the EU. There is no explicit presentation and systematic defence of the de facto constitutive rules, rules of mechanisms, and purposes of the EU.

The Amsterdam Treaty takes steps in this direction by requiring timely information to national parliaments, and allowing them six weeks for debates before legislative proposals are placed on the Council agenda. More drastic suggestions, not adopted, included a European constitution explicitly established and recognised as such, and procedures for holding Council members accountable for their votes.

Democracy as a majority rule.

Democracy is also used to describe the decision procedures of institutions whereby the preference of the majority of the electorate determine the result. The democratic deficit of the EU sometimes refers to this notion of democracy. There is as gap between the powers transferred to the Community level and the control of the elected Parliament over them, a gap filled by national civil servants operating as European experts or as members of regulation and management committees, and to some extent by organised lobbies, mainly representing business.

Parliament, moving towards a system of bicameral parliamentary democracy, possibly leading to co-decision with the council as the standard procedure Furthermore, the Treaty increases the use of qualified majority voting among the government representatives in the Council of Ministers. These changes highlight some of the central topics of a normative political theory for the EU: the legitimate significance of states; the proper scope and application of the principle of subsidiarity; and the content of  `vital national interests` or important ad stated reasons of national policy` which protect a domain of domestic sovereignty from outside intervention, originating with the 1966 Luxembourg compromise and re-emerging in the Amsterdam Treaty.

These two senses of democracy are related in several interesting ways. The lack of specific majoritarian decision procedures can be lamented only from the perspective of a sound political theory of legitimacy. Only then we can understand why such majority rule is appropriate for certain kinds of decision in the first place. Second, contractualist theories of normative legitimacy appeal to consent by all affected parties, and are thus reminiscent of democratic elections. Considerations of possible consent bring out whether the interests of each are secured well enough by the institutions. Thus, the notion that government must rest on the consent of the governed has become an article of political faith, a conviction that much contemporary political philosophy labours to secure`. (Flathman 1993)

However, the precise relations and implications between these two senses of democracy- of normative legitimacy and of majority rule- are contested and obscure. A better account of legitimacy must draw on a broader theory of justice for Europe. Such a theory may allow us to understand and judge the case for particular majoritarian mechanisms within the EU. We need such an account in order to assess the suggestions for institutional changes mentioned above.

…Another important task is to determine the effects of the EU on individuals, both within the EU and outside. Much empirical research on these issues is required. In several ways, the EU seems to be moving towards the role which nation states enjoyed previously. With the four freedoms and a European monetary union, the EU has pervasive effects on individuals’ lives. The impact increases with the decreasing power of government instruments over legislation and exchange rate policies, which hitherto served as a shock absorbers between citizens and the surrounding world. The increased importance of the EU underscores that political control over its institutions is an important good, and explains why the democratic deficit, in both senses, is a most pressing issue.

What contractualism is not.

Principles of legitimacy require actual participation in order to be appropriate, or for the laws to be experienced as the citizens´ own creation (Brown 1994), the EU would appear to require a constitutional convention, as in the American case (Jefferson 1789). Contractualism, on the other hand, insists that political participation, including democratic mechanism, and constitutional conventions must be justified on the merits of such procedures.

The focus on principles of legitimacy as conditions which particular institutions must satisfy also sets this approach apart from accounts which hold that the role of political theory is to generate blueprints for institutions. The aim of political theory is narrower: to resolve conflicts among considered judgements and clarify our views on areas where more determinate answers are needed.

The justification offered by contractualism is not one of deduction, but rather of acceptability. Often this is all that is needed for the purpose of identifying some social worlds as out of bounds, as unjust or immoral. On this view, political theory aspires to put some constraints on what kinds of world individuals should acquiesce in, without necessarily pointing to one ideal world. Justification of this kind underdetermines the set of just institutions. Several institutional arrangements can b equally unobjectionable, and hence permissible from the point of view of justice.

Justifying majority rule

We now turn to consider the case for majority mechanisms within the institutions of the EU. The following sketch is brief: the purpose is to indicate, but not exhaust, contractualist arguments on this issue.

The general case for majoritarian mechanisms in general is that such mechanisms secure the relevant interests of affected parties from standard harms to an acceptable extent. Majoritarian democratic mechanisms are designed to allow all affected parties equal shares of political control in some sense. The argument for such allocations of political power is comparative: it must be argued that majoritarian mechanisms are better suited than alternative allocations of political controls, in that they ensure the relevant interests for all parties. Such arguments rely on substantive empirical information about how democratic measures and alternative procedures are likely to work, including the likely abuses of power they and alternatives give rise to. Troubling cases include those where there are permanent minorities, and those where the set of affected parties is contested, such as when the plight of animals or the environment is at stake.

Two examples of troubling issues can illustrate contractualist arguments regarding institutional reforms aimed at increased majority mechanisms.

 The contractualist approach is concerned to assess stable institutions by their effects, both intended and unintended, on affected parties. We must be attuned to the incentives created by institutions over time, and how they affect individuals´ values and perception of themselves and of the community they live in. Long-term unintended effects of social institutions are notoriously difficult to predict and hence assess. Nevertheless, institutional theory may throw some light on these issues. For instance, the case against voting on representative legislators cannot rest with Rousseau’s scornful dismissal of voters being free only on the day they vote. Rather, the issue must be whether such a method is better than the alternatives in terms of securing the interests at stake, where we consider the incentive effects on voters and representatives. Another relevant example concerns the centralising effects of European institutions.

Against mixed models

In mixed models of government one body enjoys legislative, executive and judicial powers. To be sure, even in states which split powers the executive and legislative functions are not always clearly aligned with different bodies. Often the executive not only executes laws, but initiates legislation and makes policy, while the legislative often reviews and influences the execution of policy (Vibert 1995). However, the concern for transparency and avoidance of standard threats caution against mixed models of government.

In contrast, those approaches which stress the pervasive need for democratic participation and majority rule might regard all attempts at separating powers as anti-democratic and hence illegitimate. The separation of powers puts some aspects of government out of reach of representatives, and hence of the public.

Systemic effects are unpredictable at the level of day-to-day decision making. Second, citizens may reasonably want guarantees against likely threats of abuse. Institutions and the allocation of power must be tailored with these sources of instability in mind. To be sure, the representatives and executives must be virtuous, but citizens may reasonably insist on protection against likely threats- including the possibility that some will bend the rules inappropriately.

The case for majority mechanisms in the EU.

What role should majoritarian mechanisms play at the level of the EU? When decisions are moved to the European level, we should suspect that majority rule as a means of accountability and control at the same level secures a better match between the decisions and those affected. Thus majority procedures are often regarded as an improvement over the current situation in the EU.

European level and there are several competing additional suggestions for how to increase majoritarianism in the European institutions. In the following I indicate how contractualism approaches these issues.

The commission has multiple functions:  promotion of the common interest, monopoly of legislative initiative and guardianship of Community law.  Even though the commissioners are regarded as civil servants with loyalty only to the EU and the `European interest`, they frequently defend national positions in the Commission.  There is then, representation in a weak and direct sense, and the Commission decides by majority vote.

The appropriate focus for increased democratic rule should not therefore be the Commission. When the Treaty of Rome established, member states were regarded as the most likely sources of inappropriate threats to the regime. However, the EU is developing from being institutions created for the effective pursuit of private interests, towards a union with political aspirations guided by a conception of the common good suitable for states.

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