Political Theory and the European Constitution

Editors Lynn Dobson and Andreas Follesdal

London: Routledge/ECPR Studies in European Political Science 2004 - Link


Statement by the editors, Brussels, TEPSA August 30, 2004


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 Union now needs is more, not less, political contestation about the ends and means of Union competences. Also by that standard the Constitutional Treaty marks an improvement in several regards.


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 Europe really needs, now. But that debate had become ‘academic’ in the pejorative sense. The question is what to make of the particular Constitutional Treaty before us. The answer to this question is now of burning practical relevance – anything but ‘academic’. 

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 Europe’s social diversity. Only 42 of the more than 200 participants were women and only one of its members was of colour. As to members of other (standardly self-defined) minorities, they either lay low or were absent. Yet with all its flaws, the convention was more open, accessible, and transparent than other methods yet ventured in EU decision-making, and also manifested more elements of consensual deliberation by - competing -  views of the common EU good.


What do our authors say?

So what do philosophers and political theorists have to add?

Should the Union have a Constitution emerging from a constitutional convention at all?

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 Europe are determined, … united ever more closely, to forge a common destiny.’ Is this end point of a unitary political order indeed what the peoples want, rather than a political order with power both at national and European levels?

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 Union

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 Poland and Spain protested their voting weights. Stijn Smismans addresses such tensions: Who shall decide who gets to participate, and why should small states be overrepresented by how much? The Commission maintains formal equality of access and indeed goes out of its way to listen to underprivileged groups. But access depends heavily on actors’ resources, and these are heavily skewed toward some kinds of actors. Instead of removing such channels, the Constitutional Treaty seems to embed them.

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.