Jean Monnet Center at NYU School of Law

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The European Constitutional Paradox: The Challenge of Citizenship and Demos

The European Union enjoys powers unparalleled by any other transnational entity. It has, inter alia, the capacity

-- to enact norms which create rights and obligations both for its Member States and their nationals, norms which are often directly effective and which are constitutionally supreme. -- to take decisions with major impact on the social and economic orientation of public life within the Member States and within Europe as a whole. -- to engage the Community and, consequently the Member States by international agreements with Third countries and international organizations. -- to spend significant amounts of public funds.

Europe has exercised these capacities to a very considerable degree.

Whence the authority to do all this and what is the nature of a polity which has these powers?

One place to look for the answer would be -- international law: The High Contracting Powers -- the Member States of the European Union -- entered into an international Treaty based on international law which created an Organization with these wide capacities and established its Institutions empowered to exercise the various powers. What, then, of authority? On this view the transnational authority of the Union writ, so long as Jus Cogens was not violated (and it clearly was not), derives from international law. Pacta Sunt Servanda. The internal authority of the Union writ, so long as internal constitutional norms were not violated (and apparently they were not) derives from the constitutional authority which governments enjoy to engage their respective states, including the authority to undertake international obligations with internal ramifications in national law. And the nature of the polity? It is an international organization belonging to the States which created it.

For a long time the international view has been out of vogue. Despite its terse elegance it seemed to give a formalistic answer to the question of authority and identity. It is true that international law imposes no restrictions, other than Jus Cogens, on what states may contract among themselves. But, as the European Court of Justice explained in its so-called constitutionalizing decisions, given the special purposes of the European construct, given the unprecedented nature of the powers and capacities, given the unique institutional machinery, the European Community (and later Union) were to be conceived as a new legal order. In more recent cases the Court has even taken to calling the Treaties a Constitutional Charter. Partly because of what the Court said, largely because of what it -- and its national counterparts -- did, it has, indeed, in many ways, made little sense to think of the Union as a classical international organization based on a traditional understanding of international law. This, surely, is one of the great European orthodoxies -- celebrated by Euroenthusiasts, lamented by Euroskeptics but accepted as fact.

Let us accept the theology of the New Legal Order and Constitutionalism. The question still remains -- whence the authority?

Citizenship and Authority

In Western, liberal democracies public authority requires legitimation through one principal source: The citizens of the polity. The principal hallmark of citizenship is not the enjoyment of human rights-- though that may be part of the citizenship package. That is the hall mark of humans. We pride ourselves that we extend human rights to visitors, aliens and the like. The deepest, most clearly engraved hallmark of citizenship in our democracies is that in citizens vests the power, by majority, to create binding norms, to shape the socio-economic direction of the polity, in fact, all those powers and capacities which, I suggested, the Union now has. More realistically, in citizens vests the power to enable and habilitate representative institutions which will exercise governance on behalf of, and for, the citizens. If we seek primary citizenship rights we should look for all the instruments and mechanisms which are there to ensure the mastery of citizens over the polity and its organs. The institutions and mechanisms of democracy are the repository of primary citizenship rights. Note too, that this huge privilege and power of citizenship has, traditionally, come with duties -- not simply a duty to obey the norms (that falls on non-citizens too) but a duty of loyalty to the polity with well known classical manifestations. The republican spirit, note, did not rebel against Taxation. It rebelled against Taxation without Representation.

The first big question which citizenship gives rise to is to find the mechanisms to assert the linkages between citizens and the exercise of public authority. Absent those linkages, public authority loses its legitimacy. Thus, absent European citizens there is a serious problem of legitimate authority which the celebrated constitutionalization accentuates.

Lawyers recite dutifully that the

Community constitutes a new legal order ... for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. (Van Gend en Loos)

Habitually we celebrate the fact the obligations among States created by a Treaty confer rights on individuals which courts must protect, even against States. It is in this sense that calling individuals subjects of the Treaty alongside Member States may be justified. Subjects sounds awfully like citizens. Indeed, in Monarchies, the subjects of the Monarch are the citizens of the modern State.

But note: Individuals are subjects only in the effect of the law. In this sense alone is it a new legal order. Consider the following reductio ad absurdum: Imagine three states which still allow slavery. There is trade among these states, including trade in slaves. Imagine further that the three get together and conclude a Treaty which creates mutual obligations among them such as prohibiting a workday for slaves of more than 20 hours. They also create institutions which are henceforth empowered to regulate all matters concerning slavery. Imagine now that they do not wait for a judicial decision but include explicitly in their Treaty what the ECJ "found" in Van Gend en Loos: That these obligations, are, independently of national legislation, intended to create rights for the slaves themselves, and that national courts would have to protect those rights. Another New legal order will have come into being. Does the fact that the obligations created by the States, the High Contracting Parties which bestow rights on our poor slaves make them subjects of the Treaty? Well, yes in the limited sense of deriving rights created by others. No, in the sense that they have no say in the making of those rights. Enjoying rights created by others does not make you a full subject of the law. In times gone by Men, the full subjects of national polities, created many obligations among them, as employers for example, which conferred enforceable rights on women. This, alone, did not make women full political subjects of the legal order until emancipation. Thus, in Van Gend en Loos, to the extent that the High Contracting Parties retained the prerogatives to make the obligations, bestowing rights on individuals, there was, in this sense, little new in the legal order, except that it accentuated the problem of legitimacy. For if the Community and Union have the capacity to exercise law making power over individuals independently of national legislation, by whose authority does it enjoy that power? One could object to my absurd example and claim that in the Union context the States are composed of citizens, not slaves who enabled their States to create institutions which create obligations etc. That is true, but than one is back to legitimation through the mediation of the State, i.e. through public international law and one waves the "new legal order" good bye.

One paradox, then, of European Constitutionalism has been that it created a new, non-international, constitutionally oriented legal order in the effect of its norms, but avoided a necessary component of legitimation in the creation of the norms -- citizenship. It is not that one has to exclude all norm making authority and legitimating power to States as such. After all, in all federations, States or their equivalent, form part of the legitimation at the federal level. But there must, likewise, be direct legitimation by citizens -- de jure or de facto -- at the union level.

Establishing European Citizenship would, thus it seems, be one necessary step to resolving that legitimation deficit. Vesting that concepts with attributes, mechanisms or instruments that manifest, in a manner not mediated through national, Statal institutions, the attributes of citizenship will be the other.

Demos and Identity

Citizenship is not only about the politics of public authority. It is also about the social reality of peoplehood and the identity of the polity.

Citizens constitute the demos of the polity -- citizenship is frequently, though not necessarily, conflated with nationality. This, then, is the other, collective side, of the citizenship coin. Demos, provides another way of expressing the link between citizenship and democracy. Democracy does not exist in a vacuum. It is premised on the existence of a polity with members -- the demos -- by whom and for whom democratic discourse with its many variants takes place. The authority and legitimacy of a majority to compel a minority exists only within political boundaries defined by a demos. Simply put, if there is no demos, there can be no democracy.

But this, in turn, raises the other big dilemma of citizenship: Who are to be the citizens of the European polity? How are we to define the relationships among them. A demos, a people cannot, after all be a bunch of strangers. How should we understand, then, and define the peoplehood of the European demos if we insist that the task remains the ... ever closer union among the peoples of Europe?

One way to reconcile is denial -- by rejecting the notion of a European demos. The implications of this No Demos thesis, espoused, among others, by the German Constitutional Court, is to deny any meaningful democratization of the Union at the European level, to reassert the implicit underpinning of the Community legal order in international law, and if one is to be intellectually consistent, to negate likewise any meaningful content to European Citizenship. Space does not permit full elaboration[2]but a few hints will suffice.

Under this view, the nation, which is the modern expression of demos, constitutes the basis for the modern democratic State: The nation and its members constitute the polity for the purposes of accepting the discipline of democratic, majoritarian governance. Both descriptively and prescriptively (how it is and how it ought to be) a minority will/should accept the legitimacy of a majority decision because both majority and minority are part of the same demos, belong to the nation. That is an integral part of what rule-by-the-people, democracy, means on this reading. Thus, nationality constitutes the state (hence nation-state) which in turn constitutes its political boundary. The significance of the political boundary is not only to the older notion of political independence and territorial integrity, but also to the very democratic nature of the polity. A parliament is, on this view, an institution of democracy not only because it provides a mechanism for representation and majority voting, but because it represents the nation, the demos from which derive the authority and legitimacy of its decisions. To drive this point home, imagine an anschluss between - this time -- Germany and Denmark. Try and tell the Danes that they should not worry since they will have full representation in the Bundestag. Their screams of grief will be shrill not simply because they will be condemned, as Danes, to permanent minorityship (that may be true for the German Greens too), but because the way nationality, in this way of thinking, enmeshes with democracy is that even majority rule is only legitimate within a demos, when Danes rule Danes.

Turning to Europe, it is argued as a matter of empirical observation that there is no European demos -- not a people not a nation. Neither the subjective element (the sense of shared collective identity and loyalty) nor the objective conditions which could produce these (the kind of homogeneity of the organic national-cultural conditions on which peoplehood depend such as shared culture, a shared sense of history, a shared means of communication(!) exist. Long term peaceful relations with thickening economic and social intercourse should not be confused with the bonds of peoplehood and nationality forged by language, history, ethnicity and all the rest.

For some the problem is temporal. Although there is no demos now the possibility for the future is not precluded a-priori. For others, the very prospect of a European demos is undesirable. It is argued (correctly in my view) that integration is not about creating a European nation or people, but about the ever closer Union among the peoples of Europe.

The consequences of the No Demos thesis for the European construct are interesting. The rigorous implication of this view would be that absent a demos, there cannot, by definition, be a democracy or democratization at the European level. This is not a semantic proposition. On this reading, European democracy (meaning a minimum binding majoritarian decision-making at the European level) without a demos is no different from the previously mentioned German-Danish anschluss except on a larger scale. Giving the Danes a vote in the Bundestag is, as argued, ice cold comfort. Giving them a vote in the European Parliament or Council is, conceptually, no different. This would be true for each and every nation-state. European integration, on this view, may have involved a certain transfer of state functions to the Union but this has not been accompanied by a redrawing of political boundaries which can occur only if, and can be ascertained only when, a European people can be said to exist. Since this, it is claimed, has not occurred, the Union and its institutions can have neither the authority nor the legitimacy of a Demos-cratic State. Empowering the European Parliament is no solution and could -- to the extent that it weakens the Council (the voice of the Member States) -- actually exacerbate the legitimacy problem of the Community. On this view, a parliament without a demos is conceptually impossible, practically despotic. If the European Parliament is not the representative of a people, if the territorial boundaries of the EU do not correspond to its political boundaries, than the writ of such a parliament has only slightly more legitimacy than the writ of an emperor.

What, however, if the interests of the nation-state would be served by functional cooperation with other nation-states? The No Demos thesis has an implicit and traditional solution: Cooperation through international treaties, freely entered into by High Contracting Parties, preferably of a contractual nature (meaning no-open ended commitments) capable of denunciation, covering well-circumscribed subjects. Historically, such treaties were concluded by heads of state embodying the sovereignty of the nation-state. Under the more modern version, such treaties are concluded by a government answerable to a national parliament often requiring parliamentary approval and subject to the material conditions of the national democratic constitution. Democracy is safeguarded in that way.

And citizenship? Citizenship on this view must remain in the exclusive domain of the Member States through whose authority the Community and Union may function with legitimacy.

On any count this is a formidable challenge to the European construct.

How, then, could and should European citizenship be constructed. What should be the political attributes which forge the linkages which must flow, at the European level, from citizen to public authority. How should European demos be understood. Does it exist? Can it exist? What are its implications for European identity?

It is with these fundamental questions which we turn to the TEU and the preparatory and early phases of the 96 IGC.

[2] Der Staat "über alles" -- Demos, Telos und die Maasrtricht-Entscheidung des Bundesverfassungsgerichts 44 Jahrbuch des Öffentlichen Rechts der Gegenwart 91 (1996)

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