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It would not be possible in the space of this chapter to consider all possible competing justifications for the division of political authority and legislative competence within the EC. Some thoughts on the model of democracy briefly posited by Joseph Weiler are, however, in order. As noted earlier, Weiler and his co-authors suggest that the supranational mode of governance within the Community may "be analysed most profitably in our views with insights from the Weberian or Schumpeterian competitive elites model of democracy, or, aspirationally at least, to a statal, federal vision of pluralist democracy".[79]
While the very meaning of elite and pluralist models of democracy is fraught with difficulty,[80] we must, however, be clear at the outset what we are subscribing to if we endorse a Schumpeterian competitive elite model. To this end we need to understand the Schumpeter view and the connections between it and elite theories of democracy.
Schumpeter rejected what he took to be the classic eighteenth century model of democracy, which he defined as: the institutional arrangement for arriving at political decisions which realizes the common good by making the people itself decide issues through the election of individuals who are to carry out its will. He believed this conception of democracy to be unworkable, and 'replaced' it with his own now famous definition which saw democracy as the institutional arrangement for arriving at political decisions in which individuals acquired the power to decide by means of a competitive struggle for the people's vote.[81]
Elite theorists, such as Mosca,[82] Michels[83] and Pareto,[84] challenged certain aspects of pluralist theory and contended that decisions in society will always be made by a minority of the populace who will dominate the minority. Their work formed the basis for political scientists in the USA, such as Wright Mills,[85] who argued that a power elite controlled the economic, political and military domains, and that there was no natural equilibrium resulting from the balance of competing interests. Behaviouralists, such as Almond and Verba,[86] reinforced this message by studies purporting to show that citizen participation in political activity was low, that society was perforce governed by the interested and involved elite and that too much participation would be disruptive and detrimental.
It was Schumpeter who provided the broad frame of legitimacy within which elite theorists and behaviouralists reasoned, for his was a top down conception of democracy. Political leaders devised the package to be offered to the electorate, with the electoral will being manufactured in ways analogous to a commercial product.[87] Political action was not the business of ordinary people, who simply voted and thereafter played no further role. The Schumpeterian vision provided elite theorists and behaviouralists with just what they wanted. Not only could they argue that people did not engage in political activity. Not only could they contend that encouragement of such behaviour would lead to deleterious consequences. They could also now argue that political participation of this kind was not an integral element of democracy at all.[88]
This vision of democracy has itself been vigorously challenged from a number of perspectives. Pateman has argued convincingly that Schumpeter misinterpreted the classical eigtheenth century vision of democracy with which he took issue, and that he artificially fused the views of different theorists.[89] Bachrach[90] is critical of the diminished conception of democracy contained in the competitive elite model. On this view democracy is, as we have seen, perceived solely as method of choosing those who are to govern. Participation in the making of political decisions once the government has been elected is not seen as valuable in instrumental terms, as a means of improving the soundness of the resulting decisions. Nor is such participation valued in process terms, as a means of enhancing the development of the individual. The competitive elite model is also challenged for its narrow definition of the political sphere, for the way in which it indirectly pre-empted arguments for the expansion of democracy in other areas by definitional fiat. Equally telling critiques have been advanced by other writers.[91]
The competitive elite model of democracy is not attractive in normative terms, even less so when given the Schumpeterian overlay. Yet if it does accurately capture the operation of the supranational element of the EC then so be it, we must accept this even if the conclusion is distinctly unattractive. The question is therefore whether this model does in fact accurately reflect the reality of decisionmaking within this area.[92]
It can be accepted that in historical terms there are aspects of the decisionmaking process within the EC which arguably reflect the elite model. The dominance of the Member States within the Council and the European Council, the impotence of the European Parliament prior to 1986 and the lack of transparency and participation are all of relevance in this context. We should, however, be wary of moving too readily from these 'facts' to the conclusion that a Schumpeterian competitive elite model captures the essence of decisionmaking now, or even that it did so in the EC's formative years. There are a number of reasons for hesitation in this respect.
First, it may be mistaken to think of the above facts in terms of a model of democracy at all, at least in relation to the early years of the Community. The existence of data indicative of elite power does not necessarily presuppose an acceptance by the relevant actors of a competitive elite model of democracy as such. It is more likely that states viewed this disposition of power as natural given that the EC was borne out of an international agreement.
Secondly, it is equally important to avoid the elision of two separate issues: do elites play a role within the Community; and is the Community properly characterised in terms of the Schumpeterian competitive elite model? It would be idle to pretend that the answer to the first of these questions can be anything other than an affirmative.[93] Yet this does not in and of itself generate a similarly affirmative answer to the second inquiry. Elites play a role in all national political systems.[94] This does not serve to render those systems Schumpeterian in the manner described above. Moreover, it should not be forgotten in this respect that viewed historically republican writers were perfectly willing to accord a place within the mixed regime of government to representatives of elites.
Thirdly, while the elite model of democracy differed from classic pluralism as to the structure of power within society, most elite theorists shared the pluralist assumption that there was no cognisable public interest or common good which was separate from the desires of individuals or groups within society. The outcome of the elite competition was the common good. This important assumption of the elite model is not readily transferable to any stage of the EC's existence. The Commission has always wielded significant power within the EC, although the precise extent has varied across time. The Commission has always seen itself as the guardian of the public interest as represented by the Treaty. It has used its right of legislative initiative to effectuate the goals therein. To be sure it may have found it necessary to compromise these initiatives to conform to the reality of what Member States would accept. To be sure also the very specification of what the common good laid down in general Treaty articles actually requires may be contestable. This does not alter the fact that the Commission as one of the elite players has never subscribed to the view that there is no conception of the Community public interest which is independent of the competition between individual state preferences. This applies equally to the ECJ. It too has played a significant role in the development of EC law and has always sought to advance what it perceives to be the Community conception of the public good. Nor is it self-evident that the Member States themselves conceived of EC decisionmaking in the manner indicated by elite theory. States have sought to preserve overall control of the Community's direction. This is not, however, equivalent to believing that there was no conception of common good for the Community other than that captured by the result of inter-state agreement.
Fourthly, the very divided structure of political authority makes it difficult to apply a Schumpeterian elite model to the EC. That model is premised upon the existence of a political structure within which authority is so organised that it becomes meaningful to talk about varying elites competing for the peoples' vote. This precondition is not readily fulfilled in the context of the EC. The only occasion on which the people vote directly is in the elections for the EP. This institution does not, however, have a monopoly of power within the Community. It is not therefore open to rival groupings within the EP to offer coherent packages to the electorate given that the EP is not in control of the legislative agenda.
Fifthly, a Schumpeterian competitive elite model of democracy does not fit well with the institutional reports leading to the 1996 IGC. This is so both in relation to the institutions' self-perception of the Community and in relation to the concrete suggestions made therein. There is nothing in these reports to suggest an attachment to such a democratic model. The very concern for both democratic and social legitimacy which permeates all the documents makes little sense in terms of elite theory. If a top down elite theory of democracy really informs the thinking of the Member States individually and collectively then it is not apparent in the reports of the Council or the Reflection Group, let alone the Commission or the European Parliament.[95] Nor is it easy on this view to explain why so much attention should have been given in the reports and in prior high level documents, such as Inter-Institutional Agreements and Declarations, to concerns such as transparency, participation, citizenship and the like. If one truly believes in a Schumpeterian elite model then these issues largely cease to be of democratic concern given the operative definition of democracy. The cynical response might be that this is all window dressing to placate the populace lest they become too restive. Leaving this rationale aside it is difficult to see why there should be such attention given to making the EC more accessible to its citizenry.
The final point concerns the connection between a model of democracy and the very conception of the demos on which the Community is premised. Joseph Weiler is surely correct to point out that any discussion of democracy presumes the existence of a demos.[96]
Much democratic theory presupposes a polity (usually a state) and almost all theories presuppose a demos. Democracy, in a loose sense, is about the many permutations of exercise of power by and for that demos. Indeed, the existence of a demos is not merely a semantic condition for democracy ... Can there be democratisation at the European level without there being a transcendent notion of a European people? Is there a European demos around which, by which, for which, a democracy should be established? How should or could it be defined? How could or should it fit into political theory?
These are difficult questions. Weiler's own analysis is of considerable importance. He takes issue with what he terms the No Demos thesis which significantly influenced the German Federal Constitutional Court in the Brunner case. On this view,[97]
"The people of a polity, the Volk, its demos, is a concept which has a subjective ... component which is rooted in objective organic conditions. Both the subjective and objective can be observed empirically in a way which would enable us, on the basis of observation and analysis, to determine that, for example, there is no European Volk."
A demos in this sense is therefore perceived in ethno-national terms. Only a people which has a shared history, language, culture, and ethnic background can constitute a demos. The Volk thus defined predates and precedes the modern state, and is not torn asunder even by the split of the state itself.[98] It is the Volk in this ethno-national sense which is the basis for the modern state. For those who adopt this view, the next step is to deny the existence of any such conception of a European demos and to conclude that in the absence of a demos there cannot be real democracy at the European level.[99] Weiler makes telling criticisms of this conception of the demos,[100] and argues that in any event this should not be the only way in which to conceive of a demos capable of bestowing democratic authority on a polity.[101] An alternative vision, suited to the Community, is to conceive of the demos as a "coming together on the basis of shared values, a shared understanding of rights and societal duties and shared rational, intellectual culture which transcend ethno-national differences".[102] This "supranational civic, value-driven demos" should, Weiler contends, be seen as co-existing with the national ethno-cultural view.[103]
Weiler's argument is forceful and compelling. Yet it surely points to, perhaps even necessitates, a model of democracy other than the Schumpeterian competitive elite model for the following reason. While some vision of the demos must be a precondition for discussion of democracy, it must also be true that the particular conception of the demos adopted will have an affect upon the model of democracy which is felt to be appropriate for such a polity. If a conception of the demos is essential for discourse about democracy, it is equally important that the model of democracy which is adopted does not frustrate in embrio fulfilment of this conception. Not only is the elite model thin and arid, it is based upon assumptions which run counter to those in the civic sense of demos. The shared culture and understandings which lie at the heart of this civic sense of demos will not emerge or will not develop if we continue to work with this model. The civic, value-driven view of the demos, based upon shared values and a shared intellectual culture which transcend national differences, will not be fostered by a top down model of democracy based upon elite competition which is inherently exclusionary to ordinary citizens. The very idea that citizen involvement should be exhausted by the act of voting would serve to confine and 're-nationalize' the individual's perception of the Community, undermining thereby the attempt to realise the civic demos. The idea that thereafter the elected do and should govern by way of competitively bargained agreement, is equally destructive, based as it is on the pursuit of essentially private/state interests and devoid of any general conception of shared value and the Community good.[104]
[79] Above, n. 1, p. 32.
[80] For detailed treatment see, Craig, Public Law and Democracy in the United Kingdom and the United States of America (1990), Chap. 3.
[81] Schumpeter, Capitalism, Socialism and Democracy (1942).
[82] Mosca, The Ruling Class (1939 edn), pp. 50, 53.
[83] Michels, Political Parties: A Sociological Study of the Oligarchical Tendencies of Modern Democracy, trans. E. and C. Paul (1962).
[84] Pareto, The Mind and Society, trans. Livingston (1935).
[85] The Power Elite (1956).
[86] The Civic Culture (1965).
[87] Downs, An Economic Theory of Democracy (1957).
[88] Almond and Verba, The Civic Culture (1965), p. 342; Lipset, Political Man (1960), p. 45; Milbrath, Political Participation: How and Why do People get Involved in Politics? (1965), pp. 144-145.
[89] Pateman, Participation and Democratic Theory (1970), pp. 17-21, Chap. 2.
[90] Bachrach, The Theory of Democratic Elitism: A Critique (1967).
[91] See, e.g., Bottomore, Elites and Society (1964); Kariel, The Decline of American Pluralism (1961); Lowi, The End of Liberalism: Ideology, Policy and the Crisis of Public Authority (1969).
[92] It should be remembered that the analysis within this chapter is only concerned with the structure of authority and the pattern of decisionmaking within what Weiler terms the supranational arena. I accept entirely that in what Weiler terms the international arena a different model of democracy may be appropriate.
[93] How much of a role depends in part on a definitional issue as to what constitutes an elite.
[94] Hayward (ed.), Elitism, Populism and European Politics (1996).
[95] The fact that all the reports concede an important role for the Council and European Council in the overall structure of decisionmaking is, as argued above, entirely defensible and does not serve to make democracy within the Community elitist in the sense considered in the preceding text.
[96] Above n. 1, p. 5.
[97] Ibid. p. 10.
[98] Thus speaking of Germany, Weiler notes that "one could split the German state but not the German nation", ibid. p. 11.
[99] Ibid. pp. 12-14.
[100] Ibid. pp. 14-19.
[101] Ibid. p. 15.
[102] Ibid. p. 19.
[103] Ibid. p. 23.
[104] Whether the points being made in this section apply with equal force to the (aspirational) statal, federal version of pluralist democracy, to which Weiler refers, depends upon the particular meaning which is ascribed to this vision of democracy. If by a pluralist conception of democracy one has in mind some version of the Bentley/Truman/Dahl thesis overlaid perhaps by more modern public choice literature then many of the arguments considered within this section would still operate, albeit in a modified form.