Welcome to the second part in my series examing democracy in the EU. Last time, I attempted to define the “democratic deficit” – and looked a bit at the history of the phrase. In this post I will continue by exploring the two pillars of democracy: popular and constitutional. Again, apologies for the “dry” nature of the post – it’s from an essay I’m writing for university, so it’s bound to be more academic than most of my blog. Anyway, if you can look past the style of writing I hope you’ll find a good introduction to some of the arguments being made in academia about the nature of EU democracy.
Let’s begin with Andrew Moravcsik [PDF]. For Moravcsik, the EU system is above all a constitutional democracy – one with “tight constraints” on behaviour that “combine and exceed the most extreme constraints in national systems.” Democracy in the EU is based fundamentally on the separation of powers, rather than purely on the sovereignty of parliaments. Moravcsik argues that the various checks and balances in the EU system are more powerful than any individual national democracy, primarily because of the way power is divided within the EU: “vertically among the Commission, Council, Parliament and Court, horizontally among local, national and transnational levels – requiring concurrent majorities for action.”
However, even if it’s true the EU has a strong constitutional pillar, this fact alone would not make it more democratically legitimate. According to Yves Mény [PDF], there are two “pillars” to any democratic system – one pillar made up of the popular will and the other made up of the constitutional checks and balances that regulate and moderate the “excesses” of the first pillar (such as the persecution of minority groups). Since WWII and the “disastrous experiences of many countries which had brought to power dictators via democratic elections,” Mény believes that Western democracies have in general been strengthening their constitutional pillars at the expense of their popular pillars – for example, through the introduction of human rights, gender equality and anti-descrimination legislation. The result has been a distortion of the signals voters send to their representatives about which policy choices they might favour:
“The people might send messages of all kinds but not be heard by the representatives who are convinced they are choosing the right options. People’s frustration derives partly from the incapacity to put their problems on the political agenda in spite of ‘sending messages’ to those who govern.”
This leads, according to Mény’s logic, to widespread voter apathy and the perception that the state lacks democratic legitimacy (in this way, Mény argues that the “democratic deficit” is a phenomenon of modern democracies in general, and not something unique to the EU). A viable democratic system therefore needs balance between the popular and constitutional pillars of democracy; the precise equilibrium of that balance may vary depending on the context, but the important thing is that neither pillar overwhelms the other. If the popular pillar is too strong, it might lead to the “tyranny of the majority” which De Tocqueville feared; if the constitutional pillar is too strong (and the number of “checks and balances” interrupts signals being sent to policy elites by voters) then electorates might grow disillusioned with the entire political system.
The “two pillar” model, however, is not necessarily the commonly accepted perception of democracy. Mény argues that “unfortunately, too many citizens are still convinced that democracy is only the power of the demos” (i.e. that the popular pillar is the source of all democratic legitimacy) and they do not recognise the importance of constitutional checks and balances to moderate the democratic process – by, for example, protecting minority groups or insulating policy-formation from the influence of concentrated interest-groups seeking to shape decision-making at the expense of a more diffuse general public. On the other hand, nor should the importance of the popular pillar be underestimated – the EU might have a strong “constitutional” system of checks and balances, manifested especially in the extraordinarily effective separation of powers between institutions and levels of governance, but a strong constitutional pillar is not a substitute for a weak popular pillar; both elements of democracy should be represented.
That’s it for this post, I’m afraid. Just a short introduction to the concept, really – because I want to cover a lot of ground within 4000 words. Next time, I’ll be examining the “insulated” nature of EU institutions – where shadowy eurocrats are appointed to positions rather than being elected by the people of Europe.
Photo Credit – CC / Flickr: European Parliament
Joe,
Some of the differences you are speaking about might become clearer if dealt with more simply as direct vs representative democracy, where the latter is less conducive to oppression of minorities, especially if built on proportional representation.
The rights of individuals (minorities) are further safeguarded through the European Convention and the EU Charter, which effectively offer constitutional guarantees against intrusive politicians. (Parliamentary supremacy is akin to leninism in this respect.)
In my humble view, EU citizens have the most modern and comprehensive Bill of Rights, but what we lack is full political rights at European level, even if the need for European level solutions increases.
The “citoyen” is a rational concept, which builds on certain republican values, in principle since 1789. The time is ripe to export this concept to the EU level, in order to end the current dysfunctional system.
Thank you for your comment, Ralf!
The competing ideas of “constitutional” and “popular” democracy are seperate from the “direct democracy” versus “representative democracy” debate. Direct democracy can be constitutionally-constrained, and representative democracy can be (and frequently is) populist. Think of the “popular/constitutional” axis and the “direct/representative” axis as lying on the same graph – but the distinction between the two concepts is important. I would prefer to see the EU include more direct democracy (an effective ECI would be a start) but maintain sensible constitutional constraints.
Then the question becomes: what is “sensible”? Moravcsik argues that:
“The most fundamental constraint [on the EU's powers] lies in the requirement of unanimity, followed by electoral, parliamentary or administrative ratification, to amend the Treaty of Rome – an exceptionally high standard for any fundamental act of substantive redirection or institutional delegation.”
As frustrating as this “check” might seem for reformists, it ensures the EU has one of the strongest constitutions in modern democracy [EDIT: Perhaps "strongest" is the wrong word here. I mean it's highly resistant to amendment]. There is a clear separation between the popular and constitutional pillars. But that does not mean the constitutional pillar is “superior” to the popular pillar. Without popular input, a democracy is nothing.
Joe,
Theories are fine, political rights better.
In my view, representative democracy is the legitimate system of government. The EU is more than a system for technical regulation of markets (where Moravcsik started), and there is need for more EU level solutions by themselves and as parts of global efforts.
Thus, the EU needs a democratic system of governance, something people understand and are able to use.
Try to engage EU citizens for your model, using your terms, for why you want to keep them (and the EU) without power.
The Napoleonic wars and the Congress of Vienna were able to keep the citizens down for a very long time, but do you actually see the Holy Alliance as a crowning achievement?
Ralf,
I haven’t proposed a model, yet. :-D I’ve criticised Moravcsik, Meny, et al for not placing enough weight on “engaging” citizens. As for the Holy Alliance: it was anti-democratic – not part of the “constitutional” versus “popular” debate.
More posts to follow, with more theory I’m afraid. I would say, in my defence, that this is important constitutional theory which the founding fathers of America grappled with. It’s important stuff – and useful for a better understanding of EU democracy.
Joe,
Theories are the stuff that university essays are made of, but since you have hinted at un- or anti-democratic conclusions, I have turned to these, in the firm belief that the EU cannot develop as needed or engage its citizens, without becoming based on its citizens.
The US innovation of federalism and the French republican concept of citizenship are, in my view the logical and necessary step to take at EU level.
Ralf,
Perhaps it comes down to the difference between a lawyer’s brain and a political scientist’s brain. To you – rights are more important than political theory. For me: political theories are the stuff rights are built on.
The US model of federalism is constitutional federalism. When De Tocqueville wrote about the “tyranny of the majority,” he was writing about the American experiment, and precisely that concept came up in the Federalist Papers. Political theory is the stuff of American federalism.
However, I do believe you are wrong in saying I have hinted at antidemocratic conclusions. Where?
Joe,
If I remember(ed) correctly, you expressed some admiration for what in practice amounts to the most secure guarantees for immobility, and I think you hinted at something like that on Twitter.
The Founding Fathers (some of them) read everything available concerning political and legal thinking, but they were, on the whole, practical men (and lawyers).
Let me ask: Can the EU continue to develop as a treaty based organisation, subject to scrutiny by national parliaments?
As I just said in a comment on Julien Frisch’s blog, the EU is the EU’s greatest problem.
Ralf,
Without knowing the exact comments you’re referring to, I’m afraid I can’t defend myself from that particular charge. “Secure guarantees for immobility” in what context?
As for whether the EU can continue to develop as a treaty-based organisation, subject to scrutiny by national parliaments – yes, I believe it can. National parliaments are one of the important “checks and balances” that help guarantee democracy. I would never want to remove (national or European) parliamentary scrutiny from the EU.
Joe,
The constitutional hurdles translate into guarantees for immobility, in my view, but excuse me if I have read your posts too hastily.
I am not as optimistic as you with regard to scrutiny by soon perhaps 50 parliaments, national, regional and linguistic. Fifty shards do not add up to a vase.
For me the principle is simple: The right decisions at the right level and democratic control at the same level.
Ralf,
For me, the principle is that democratic control should exist at every level. That is the importance of the seperation of powers: “[divided] vertically among the Commission, Council, Parliament and Court, horizontally among local, national and transnational levels – requiring concurrent majorities for action.”
Scrutiny by 50 parliaments is not such a problem as long as they don’t all have a veto and qualified-majority voting is employed. If national parliaments prevent the EU carrying out certain actions, then who are we to say that this is wrong? Democracy is about preventing action the public does not want as much as it is about doing things the public does want.
Joe,
The great difference between 13 small former colonies on the East Coast in the 1780s and the European Union in 2010 is that the Americans had continental vision back then, while it looks almost impossible to get European leaders (and in their wake, citizens) to rise above their petty squabbles to the more acute challenges of a globalised world.
Checks and balances at every level and in every direction cannot be the solution for our security and prosperity in the 21st century.
Re the lawyer v political scientist views, I think that a political scientist is concerned about how to explain and justify the idea and content of human rights, while lawyers are concerned with the practical implimentation as well. I think that lawyers – or at least the academic legal world – are quite sensitive to the theory behind rights, though the emphasis may be more on the “mechanical” aspects. What mechanisms would best protect and serve these rights? How do they have to be balanced against each other and other considerations, and how far is it permissible and justifiable to do so?
I think aiming at the enshrined rights may be the wrong target for alleging the draining popular support for systems; these rights and checks are generally popular, and definitely necessary for the correct functioning of the system. I think people generally appreciate the need for rights to protect them from the state. Politically speaking, it’s not just a question of blocking possible policy avenues, it’s a question of the rationale of state power itself. From a liberal point of view, it is better to ask not what justifies these contraints on state power/the will of the people, but what basis is there for the state to act in this way, in this area.
Too often the ideas of liberty and human rights are subverted via democracy to the strange, if logical, conclusions of nationalism or the popular sovereignty justification/aspect of democracy. A democracy that is held as hostage to the insidious conclusions that “if the people are sovereign, then if anything is passed by democratic vote, it’s legitimate” will undermine itself – the more the individual’s rights are overriden, the more voices will be excluded and democracy damaged. Lawyers do see rights and their protection as being vital to democracy, but so do political scientists – for how can democracy be justified without political thought on the equality and rights of individuals and the idea of the citizen?
But the point that constitutionalisation can damage democracy is a good one. In the Lisbon Treaty (II) in Ireland, the far left wanted a stronger Charter of Fundamental Rights, yet is was more a ploy to seek to constitutionalise policy that they have no hope of getting enough votes to impliment. But it’s the second part of that sentence that’s important. You say that the EU can continue along the lines of national parliaments and QMV, but if you look at the system, this gives preference to centerist and lowest common denominator policy outcomes. The voting procedures, rather than the constitutionalisation of rights, limits the ability of politicans in the EU to change policy direction significantly. Even should the United Left gain a parliamentary majority in Strasbourg, legislation requires control or the assent of the Commission, Council, and the co-operation of the national parliaments to pass and be implemented. Like the US Congress, only more constitutionalised and without a clear public will to embarrass branches of the legislature into compliance, the majorities required to pass legislation and make policy are so big, that citizens may feel the disconnect ever more keenly.
Effectively, legislation needs majorities in the Commission (for proposal), the Council (a super majority), the EP, and the national parliaments (again QMV through the Council – it’s not so much assent as a lack of objection, but it still counts). National parliaments should make the most of the right to scruntinise European legislation, but a more majoritarian EU system would be a better method for bringing the EU closer to the electorate (though the gradual reformist way of achieving this may be better than a clean break, given the need to build up a pan-continental discourse that matters).
Conor,
Thanks for your comment – a lot to think about. I’ll pick up on a couple of your points:
“You say that the EU can continue along the lines of national parliaments and QMV, but if you look at the system, this gives preference to centerist and lowest common denominator policy outcomes.”
Why are centerist, lowest-common denominator policies a bad thing in the context of the European Union?
The majorities required to pass legislation and make policy are so big, that citizens may feel the disconnect ever more keenly.
This seems to be a big assumption. Are you saying that the people of Europe actually want the EU to be more active in policy-formation and the passing of legislation? You are absolutely right about the scale of the separation of powers in the EU – but I see this as a strength of EU democracy, not a weakness.
(Sorry for the late reply).
Centerist lowest denominator outcomes: they can be good and bad. In some ways it’s good, as the lack of political engagement means that more radicial policies are more likely to be opposed and not seen as legitimate. However, people aren’t engaged (and are less likely to be engaged the broader the support base needed to pass legislation is), because its hard to see who makes decisions, and who to hold accountable for those decisions. Without that kind of transparency and accountability, it is hard to get an engaged and well informed electorate. Lowest denominator policies may be what people what, but it would be much better for that to be an outcome of debate and voter engagement than a mere default setting.
This follows on to the EU being more engaged in policy making – it’s ok if people don’t want it, but its hard for them to really back the groups/parties for specific policy outcomes. Organisational default settings shouldn’t be the limit of what can be provided for citizens. The crisis at the moment is a good example: it’s unclear what solutions will be put forward, but a degree of Brussels action will be increased (more inspection of accounts, at the very least). These are very important decisions, and they need to be taken – however the segmentation of the stakeholders in the decision-making process means that debate isn’t aired fully, nor scrutinised (hence the media focus on national interest battles rather than policy debates). This leads to a lack of transparency and accountability since its harder to back those representatives that support your values and policy preferences.
But more than that, it doesn’t aid the quality or legitimacy of the outcome. The more majoritarian Council under Lisbon has led to faster and more policy/ideology based arguments (I think Honor Mahoney’s recent article on the E.Council being the big winner of the Lisbon settlement mentioned this). The more powerful the segments, the less they need to interact with the other parts to come to a decision; the more majoritarian the system, the more the different parts have to interact. In a similar fashion as deliberative democracy theories, when the segments have to openly debate and defend their positions, and require the support of others, they will need to make arguments on policy grounds, on what will be in the common good, rather than lazy (and sometimes misinformed) references to self-interest. This increased the legitimacy and the quaility of the decision-making. After Lisbon, the different parts need to be more engaged with each other, but there’s still segmentation.
Having a broad base for decisions is good, but the type and cohesiveness of the base matters too. That a third of parliaments can give a yellow card to proposals is good, but a huge part of the value is in the horizontal interaction between parliaments that it could foster. Having a third of parliaments united against a proposal on policy/subsidiarity grounds is better than a chance coalition that happened to block something. And likewise, a good (or even lowest common denominator) policy enacted by a base united on policy grounds after a public discourse and interaction is better than passing something by policy and chance.
It will take time to engage people in European politics, so majoritarianisation (!) needs to be gradual, but moving forwards encourages more interaction and development than sitting still. The more open and majoritarian (though limits will always be necessary given the multinational nature of the union) the process, the more the segments and people need to interact, the more legitimate the decisions, and the better quality they will have (well, the more probable it would be that they’d be of better quality).
So if the two pillars are there to serve people by being able to act, and act effectively, in the areas that people want it to act, a less segmented system would be better. Note that separation of powers is vitally important, but the different intra-institutional and inter-institutional actors need to be encouraged to interact publically. After Lisbon this will be increasingly the case, though it’s not the best solution.