Jean Monnet Center at NYU School of Law


Direct legitimation?

For some, it is quite a paradox that governance measures are proposed when the EU is in the midst of a constitutionalisation process. The EU is in the process of being turned into a governmental structure. The European debate gathered momentum after Joschka Fischer delivered his by now famous speech at the Humboldt University, Berlin, last year, pleading for federalisation of the Union. It received a lot of attention and many critical comments.7 Now, the German Chancellor, Gerhard Schröder, the British Prime Minister, Tony Blair, the French Prime Minister, Lionel Jospin, and the Greek Prime Minister Costas Simitis, among others, have voiced their views. Certainly, there is disagreement. Whilst some speak of a federal state much in line with the German model, others would like a more intergovernmental model, and while Schröder would like to turn the Council of Ministers into an "Upper House", Jospin speaks about the Federation of Nation- States that should be understood "as a progressive and controlled manner of sharing or transferring powers at European level". In a Memorandum adopted in June 2001, the Governments of Belgium, the Netherlands and Luxembourg subscribe to the need for "constitutionalisation" of the EU. There is now a rising interest in spelling out the vision and the normative foundation of the EU among its component parties. The basic values and commitments of the Union as well as the rights and duties of its citizens need to be specified.

Increasingly, this debate turns on the conditions for democracy. Several requirements must be fulfilled for a system of governance to be considered democratic. First, all people must be able to participate in the legislative process, which follows from the principle of popular sovereignty. Second, their rights to autonomy or freedom must be respected, which follows from the principle of human rights. In a democracy, the citizens are both the authors and the subjects of the laws. It is rule by the people not merely for the people. Basically, a law is only legitimate when accepted in a free debate by all affected parties. In order for a governmental structure to be legitimate, the principles of liberty, equality, security and participation need to be complied with. In more specific terms, the requirement is that it meets the criteria of congruence and accountability. By congruence is meant the basic democratic principle that those affected by decisions should also be responsible for them. This is an approximation: little congruence will lead to lack of legitimacy, while "too much" is held to reduce efficiency in large polities. In real world democracies, there has to be "a trade off" between legitimacy and efficiency. Accountability means the decision-makers can be held responsible by the citizenry and that it is possible to dismiss incompetent rulers.

What, then, is required is that basic liberties are guaranteed and that people also have participatory rights to initiate, influence and object to proposals in formal as well as informal assemblies. A rather multifarious set of institutional arrangements may be needed to secure citizens' rights in complex and pluralist societies with added layers of governance. Democracy entails the principle of collective self-rule. However, under modern conditions of pluralism and complexity this cannot mean the actual participation in the policy-making process but, rather, participation in the public debates presiding and surrounding law-making and policy-making processes. Then, one cannot solely focus on the distribution of decision-making power, on parliamentary representation or on the separation of powers, but also on the possibility of wielding influence via institutions in civil society - the press, the media, non-governmental organizations - and the possibility of participation in opinion formation and in the shaping of decisions in the institutional complex of the EU (Eriksen 2000, Nentwich 1998). Thus, several checkpoints are relevant for assessing the legitimacy of a system of governance, but for the EU to comply with standards of democracy, it first of all has to institutionalise the political rights of the citizens.

7 See, for example, Joerges, Mény and Weiler (eds.) 2000; see, further, Habermas 2001.




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