Jean Monnet Center at NYU School of Law


2. Politically Democratic Integration

Two concepts of political citizenship are competing in Europe:

a) The liberal tradition, interpreting participation in an individualistic and instrumentalist manner, and above all stressing the idea of the rule of law. Since the new democracies in the East often ended up as `defective or illiberal democracies,' allowing participation in more or less free elections but leaving the rule of law underdeveloped, this conception is gaining the upper hand again.

b) The Aristotelian conception of ethical and cultural community-cultural in the sense of the more recent conception of political culture. It is not so much the formal participatory rights and negative freedoms that are stressed, as `moeurs politiques'. Communitarianism has again linked up with this conception through a holistic concept of citizenship (Taylor 1989, Habermas 1992:640 et seq.). Communitarians are not ethno-demos patriots, and might hobnob with constitutional patriotism à la Habermas. But they have freed it from the narrowness of the state based on rule of law, and combined it with new participatory feeling. Conceptions of `deliberative democracy' or `reflexive democracy' are being revived in the press. There is no longer any basic conflict between these conceptions, as Benjamin Constant framed it at the outset of liberalism against the ancient concept of citizenship, which he regarded as ideological tyranny. Communitarianism is not only self-reflective but also self-limiting in its intellectual claims, if Walzer and others are liberal enough to stress that communitarianism seeks only to correct the exaggerations of liberalism and does not see itself as a new dogmatic doctrine.

New movement has come into the established institutions of liberal democracy. For years, no-one still discussed the alternatives for the constitutional further development of the EU, as Bowie and Friedrich (1964) had undertaken in `Studies of Federalism,' testing presidentialism, parliamentarianism and the Swiss council system with an eye to a European Federalism. Recently, (Kohler-Koch 1999:9), Friedrich's preference for the Swiss Council system has been taken up again. `Grandpa's political science,' the old institutionalism, seemed dead. Then, all of a sudden, paleo-institutionalism came back into fashion with ideas of `constitutional engineering' (Sartori 1994). Still more influential was enlightened neo-institutionalism, concerned with actors' options for action in multi-level systems, and increasingly associated with rational-choice approaches, e.g., in Scharpf (1994b).

The practice of democracies has, in many ways, come closer together in Europe. The difference between a semi-presidential and a purely parliamentary system has become secondary, given the developments in parties and their habits of interacting with the media.

The nature of the European citizenship that was created ex nihilo (Jessurun d'Oliveira 1994) remains unclear-as does the quality, in constitutional and international law, of the formation that constitutes its substrate. Staatenverbund is the German compromise formula. It has the drawback of being practically untranslatable, except into Swedish (statsförbundet). In all the major languages, the most readily accepted translation would be federation or confederation.

Maastricht is more than a treaty and less than a constitution. Some see this treaty as a constitution in embryo. Some American founding fathers wanted their constitution to be `short and dark'. New constitutions like the Southern and Eastern European ones have become `long and dark,' with, in Portugal for instance, the length of the debate on a government policy statement being regulated, and the Slovakian constitution commencing by laying claim to the tradition of the Great Moravian Empire.

The star example for the tendency to be overlong and unclear is the subsidiarity principle in Europe. It got into the treaties as a compromise formula, as Britain, in particular, would tolerate no echo of federal vocabulary. Germany (along with Belgium), as the only real federal state among the twelve Members, collaborated on this compromise formula, under pressure from the federal Länder. The leading union parties had less to object to in the once clerical undertones of the formula after the `Quadragesimo anno' encyclical. The spread of social-state ideas had long removed the Vatican connotations from the concept of the basic consensus between Christian Democrats and Social Democrats. But it had not, by any means, been made clearer by the transfer from functional contexts to territorial ones.

In order to be realised, the subsidiarity principle required specification between the whole and the Member States. Scharpf (1991:421) has rightly spoken of the `life-lie of federalism'. For all the verbal acknowledgement of the greater residual powers of Member States, in all federations with the exception of Switzerland, enormous centralisation came about. With a supranational entity that began its career as an economic entity, this is a fortiori to be expected.

A European Parliament resolution on the subsidiarity principle of November 1990 had already abandoned the ground of fraudulent labelling and clearly stated: `Federalisation of the exercise of these powers already existing at Community level would be an initial answer to the question of complying with the subsidiarity principle, which is accordingly closely connected with removing the democratic deficit' (EP-Doc. DE/RR/91692: 6).

Even more than in the federalism principle, boundaries on democratisation are present in the subsidiarity principle, which seeks to permit legislative power over all the parts for the whole only in clearly specified cases. As long as the democratic deficit is invoked, an impossible to criticise label makes it difficult to check centralising tendencies.

Yet, it would be an error to brand this ambiguity as the inability of the actors involved. Unclarity of objectives in the Maastricht Treaty has often revealed its advantages, as Elmar Brok (1992) convincingly argued for in the European Parliament. The subsidiarity principle leaves much open to conflicts of interest. In Germany, the deficit in implementing the pure theory of the market economy without subsidies is complained of, but the subsidiarity principle is invoked as a limit on EU powers as soon as domestic shipyards or coalmines come into the danger zone. When one of the founding fathers proclaimed the slogan `short and dark,' he was expressing similar concern at the unenforceability of any constitutional compromise that underlay it.

The controversial question remains as to whether unification of the legal systems and the political cultures can be promoted by a constitution. Answers range from a warning against the excessive expectations on the part of the citizens that a constitution might bring with it (Grimm 1994:51) to the stress on the need for a constitution (Weidenfeld 1991) in order to push forward internal unity. For some (Koch 1997), the leap into the `revolution' of a constitution is a way out of boredom. Eurosceptics like Kielmansegg (1995:237) still see few chances for a European democracy without a European identity and civil society, and without genuinely European parties and interest groups. Other observers do not pin themselves down precisely (Pies in: Streit & Voigt 1996) and regard both the development of a treaty and a constitution as roads that can be taken. Functional, instead of territorial, representation is, however, regarded by some experts (Kohler-Koch 1999:12) as the likelier line of development in order to overcome the blockage between the democratic and the federal principle.

Constructivism has since taken over the theory of international politics. Analyses of the constitutional-policy preferences of the Member States have shown that it is not so much a rationalist pursuit of power interests as institutionalised constructions of reality that mark constitutional foreign policy in the EU (Wagner 1999:435). No long-term order in the basic preference of the states can be shown, such as those assumed by the neo-realists and the rational-choice theoreticians. As was to be expected, it was, first and foremost, the feature of federal state versus unitary state that was decisive for the political culture of the countries where the reality constructions are rooted. Much the same can also be shown for the conception of citizenship.

In many respects, Euroscepticism recalls the Nineteenth-Century discussions about the integration of new nation-states.

a) Lorenz von Stein (1852:5) once considered Prussia not to be ripe for a constitution, because it was socially too heterogeneous. Similar arguments appear in relation to Europe. But with the exception of a few Eastern districts that were predominantly bilingual, Prussia spoke a single language and could be loosely integrated ideologically on the basis of an `invented Prussian tradition' running back to the Teutonic Order. Stein was still able to hope that the `constitutional incapacity' of Prussia would strengthen the constitutional capacity of Germany. The constitutional capacity of the whole of Europe, up to the Bug or even to the Urals, is, by contrast, regarded by no one as being a more favourable precondition for a constitution than the `mini-Europe' of Maastricht.

b) Federalism and parliamentarianism were regarded as incompatible-though Saint-Simon had already put the counter-thesis in 1814: that a European federation would first require parliamentary majority rule. In St. Paul's in Frankfurt in 1848, the opposite view prevailed, from the liberal Welcker through to the conservative Radowitz. Despite universal suffrage, Bismarck played off the incompatibility theorem against the parliamentarisation of the Reich after 1871. Conservatives, like Calhoun in America or Konstantin Frantz and Max von Seydel in Germany, overwhelmingly set `concurrent majorities' against parliamentary majority rule. The incompatibility thesis was still being defended even when Australia and Canada had long proved the contrary. But the parliamentarianism of the `colonies' had no educational value for continental dogmatics, and, where there were democratic federalists, they tended more to call for the Swiss council system or the US presidential system than for a parliamentary one.

The more recent theoretical approaches see a `paradox of weakness' (Edgar Grande), weakening both the state and society. The state loses control capacity, since globalisation and regionalisation allow the bourgeois to grow beyond the citoyen living within the confines of a state. Society also loses, since multi-level interpenetration makes the state becomes less controllable (Zürn 1996:34). Since, in Hirschman's terms, voice becomes harder, exit has become a recommended option. Either a pluralism model which drops the analogies with the theory of forms of government is recommended, or flexibilisation, consisting in a system of veto rights, is demanded (Abromeit 1998:89).

At the moment, it is only the European Charter of Fundamental Rights that is on the programme. Since 1984, European Parliament initiatives in this direction have been delayed. Now, the Charter is hoped for by the end of 2000. Views range from a copy of the European Human Rights Convention up to a new fundamental-rights catalogue with many social fundamental rights. One problem that remains will be the question of whether Member States can be compelled to comply with these rights by sanctions, and how far the right of action against fundamental-rights infringements should be extended before the European Court of Justice, for without it, the Charter would deteriorate into symbolic politics. Parts of the Hessian constitution have repeatedly been found to be incompatible with the constitution, yet no pressure has been put on Hesse to amend them. In Russia, the constitutions of twenty out of twenty-one republics contain clauses that are incompatible with the constitution of the Federation. The Union cannot even apply sanctions against severe infringements of federal comity-except in Chechnya, where the issue is formal secession. Things will not go any better for Europe!



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