Political Theory and the European Constitution
Editors Lynn Dobson and Andreas Follesdal
Statement
by the editors,
We meet
at a crucial time, as the Constitutional Treaty winds its way facing several
hurdles that may or may not stop it,- or stop the ‘ever closer united Europe’.
Indeed, the significance of the Convention and its draft Constitution can
scarcely be grasped without an appreciation of how it fits into larger
empirical and normative contexts: the widening and deepening of the EU and
increasing public and legal dissatisfaction in the wake of the Maastricht
Treat. The US-led war in Iraq, which
arose between the Convention’s convocation on 28 February 2002 and its closing
on 10 July 2003, revealed divisions
between the European states on core matters of foreign policy, reinforcing the
resolve of some to carve out a more independent and unitary role for the EU in
global affairs.
The
challenge is even more pressing as voting for the European Parliament election
reaches an all time low. Some politicians have suggested that what is needed to
enhance legitimacy and motivate citizens is mainly to show how well the EU
works, and how powerful it is.
We think
this answer is not sufficient. Indeed, it fails to grasp the nature of the
legitimacy deficit completely. To the contrary, many of us argue that what the
What is the book
about?
This book
concerns the political theory of the Constitution. It addresses two central
issues: If a Constitutional Treaty is the answer, what was the question? And
what are we to make of the answer, by the normative standards of political
theory, contested as they may be?
We argue
that the Constitutional Treaty should be judged, with all its confusions and weaknesses,
as an attempt to arrive at a collectively acceptable normative order in the EU,
- an attempt infused with other, and perhaps fewer, strategic calculations than
is habitual in EU politics.
European
integration has provoked political philosophers and theorists to consider the
EU in the light of central concepts of political theory, including sovereignty,
democracy and legitimacy, and to reconsider our standard conceptions of these
in the face of the multi-level political order that is the EU. Reflective
scholars have disagreed about the diagnosis of the European malaise in general, and hence about the prescriptions –whether a
constitution is what
The
present volume addresses some of these core issues, shedding light on normative
themes in the Convention’s proposals. We do not seek to offer particular
constitutional blueprints against which the Constitution ought to be compared,
and certainly no particular normative stance has been imposed. Instead, authors
identify and scrutinize the normative frameworks within which the draft
Constitution answers salient questions of institutional design.
Of course
we understand and accept that the conventionnels
could not hope to escape bounded rationality, unintended consequences,
institutional loyalties, propensities to unduly conflate the common good with
one’s own, nor the usual clutch of human fallibilities, foibles, and
partialities.
We also
know –but are less ready to excuse - that the Convention’s participants were
also extremely unrepresentative of
What do our authors
say?
So what
do philosophers and political theorists have to add?
Should the
Philippe Schmitter argues that this is the
wrong initiative, too fast, at the wrong time. An overarching identity among Europeans is
rudimentary at best.
David McKay and Peter Kraus consider the challenges of establishing the
EU as a federal order. From this perspective, an oddity in the Constitution is
the Preamble’s claim
that ‘the peoples of
McKay finds that the EU will have institutions preventing both undue
centralization and decentralization, checking both elites and the citizenry - except for EMU
arrangements. Asymmetries,
as in the Euro-zone may foster distrust and hence longer term instability.
Kraus is also optimistic: the EU may be foster a ‘post-sovereign’
politics of recognition among diverse collective identities. In particular, he
stresses the expanding
roles of the European Parliament and national parliaments as arenas for EU
decisions.
The Convention
Process
Did the
draft Constitutional treaty emerge from a process that grants it
legitimacy? Simple analytical
oppositions between ‘arguing’ in terms of other-regarding reasons, versus
‘bargaining’ of self-interested goods, are empirically unsatisfying and
theoretically uninteresting. And the customary normative evaluations of these –
arguing better, bargaining worse - appear simply naïve.
Four
authors study the Convention process from more sophisticated perspectives.
Richard Bellamy and Justus Schönlau dispute idealized
accounts of constitutional politics, instead claiming that varieties of
reasonable compromise and legitimate bargaining should address ‘constitutional’
issues.
The alleged conflicts between liberal and communitarian conceptions of justice and legitimacy
were visible in the heated debate on the proper role of religion - a debate I had the
privilege to attend, and that Tore Olsen discusses. The Christian Democrats
wanted mention of God’s role as the source of values essential to European civilisation, while MEP Andrew Duff, here present, stated
with usual clarity that: “God has given Christianity and Islam its graces, but
he has not brought liberal democracy to Europe.” The Convention failed to agree,
leaving the text much in accordance with MEP Duff’s recommendation. Regardless
of whether we approve of this result, the debate raises the more
fundamental issue again of what are the proper roles of a
constitution. Optimists may say that common values were expressed in accordance
with liberal constraints an overlapping consensus on surface values supported
across diverging deeper values.
Myrto Tsakatika examined another area of ‘failure’, concerning
the open method of coordination. Intractable conflicts about how to combine
efficiency, legitimacy and diversity were not resolved, leading to silence on
the topic. So much for the benefits of striving for consensus.
When the norm of appropriateness is consensus rather than conflict, the result
may well be silence – or exit by decision makers to the back rooms. Indeed, in
the Convention, many weighty decisions were taken away from the public eye,
within the Praesidium.
The Values of the
Our next five chapters probe the particular values or principles adopted
in the Constitutional Treaty.
Lynn
Dobson identifies important tensions between three competing conceptions of
freedom and power that are at work in the Constitutional Treaty. EU may have
enhanced its capabilities, but heightened risks of domination of some groups
and states by others. How may domination be prevented, while allowing requisite
joint action capacity to pursue commonly valued goals? This is a tall order. Several authors note the difficulties of the
democratic enthusiasm of the document. The Constitutional Treaty endorses three
principles of democratic rule, namely democratic equality, representative
democracy, and participatory democracy. Unfortunately, the draft provides
little guidance when it comes to managing the tensions between these three –
tensions that later erupted into political conflict when
Daniel Naurin discusses how the Constitutional treaty seeks to
increase transparency. The Convention wanted both the European Parliament and
the European Council to meet in public – but such reforms are at best
insufficient without a well functioning party system that allows for political
contestation. The beneficial effects of transparency also depend on
institutional design. What seems essential is the extent of a collective
identity and loyalties toward shared norms and conceptions of the common good.
Thus transparency may be more effective in the Commission than in the Council.
Claudia Attucci explores the role of the
Charter of Fundamental Rights. Standardly, human
rights catalogues protect individuals against abuse of public power. She holds
that the Charter
plays an important additional role in providing trust: a structure and limits
to the requisite dialogue about fundamental values – allowing local diversity
but within ranges set by universal principles.
Roberto Gargarella is concerned about the courts’ roles in the EU.
In particular, judges enjoy interpretive discretion without a democratic
mandate. He reminds us of the risks involved in constitutional interpretation.
If we want judges to be the voice of powerless minorities, how can we find ways
to ensure that judges reinforce democratic
values in this way? – especially when we don’t know –
or disagree about - what justice requires in multi-level political orders.
Final reflections
Some of the
theoretical dichotomies that have enjoyed prominence in academic and political
discussions prove yet again to be less relevant in practice and too
coarse-grained theoretically - liberal versus communitarian, bargaining versus
arguing, European interest versus national interest, rights versus values,
universalism versus particularism. We believe that
these labels merit further refinement, and particularly when we consider
non-orthodox polities. Our task as scholars – and as citizens - lies less in
specifying ‘either/or’ and more in identifying all the insights worth keeping,
specifying ‘to what degree, in what combination, and in which circumstances’,
and as theorists, to defend our answers with clarity and rigour.
The
Convention model brought EU ‘history-making’ decisions nearer to the ‘ideal
speech situation’ or to mirroring arguments in a variant of an ‘original
position’. The conventionnels were far from standing
behind a veil of ignorance as to their own positions, allegiances, and
institutional interests. Nor could members continue deliberations until
consensus was ultimately achieved. Some, no doubt, had everything to gain by
holding out until time was up – and thus keeping some issues out of the text.
Yet the
Convention was not a war of all against all. It underscores that the
distinctions between self-regarding (bad) and other-regarding (good) motives
and actions need something of an overhaul. Appeals to the European interest was
a matter of shifting interpretive emphases, not from self-regard but from that
of a confined ‘us’, to that of a more enlarged ‘us’.
Another
accomplishment is the prospects the Constitutional Treaty offers for handling
political conflict. An uncontested democratic political order is an oxymoron as
well as a chimera. We don’t want, even as an ideal, a democracy that takes the
politicking out of politics. The Constitution should provide resources and arenas
so political parties can identify what is at stake in contested political
decisions, and manage conflicts. And this should foster an overarching loyalty
in addition to their national identity. Paradoxically: it is by creating the
spaces and issues for contestation that such loyalty can best be fostered. But
only if the institutions and decisions can withstand scrutiny can we hope that
citizens will develop dual political obligations, to be prepared to obey both
national and European authorities.
Our book
highlights some of the conditions and challenges for such a stable, just
European political order worthy of obedience. Politicians and citizens must
make up their minds about whether to ratify the Constitutional Treaty. The book
allows their own decisions to be a bit better informed about the stakes and the
nature of this union. It discusses the opportunities and challenges for
establishing – and maintaining – a European Union whose citizens and
politicians have moral reason to expect general compliance from each other.