Jean Monnet Center at NYU School of Law


Surrender Representation

One of the two restrictions here considered - representative government - is not respected if the representation of individuals belonging to a particular state is surrendered. The word `state' here does not refer to an ethnically based political unit but rather to a territorally bounded constitutional community. The citizens of Switzerland count up the votes cast everywhere in their country equally, without regard for the fact that French, German, Italian and Romansh are spoken there.

The distinctive mark of a state, as that word is here employed, is the equal counting of votes within the constitutionally delimited community. Verfassungspatriotismus is the word used in German. It is the state which presents - under democratic conditions - the outer preconditions for public discussion and, thereby, a willingness on the part of the minority to accept the decisions of the majority. For such decisions appear possible to influence. Permanent minorities - the Swedish-speaking citizens of Finland, for example - have their rights guaranteed in the Finnish constitution. In this way a foundation is laid - through the procedure of a simple majority - for the use not merely of the regulatory norm-giving power, but of the redistributive fiscal power too.

According to the historically established form of normative democratic theory, there is a solution to the problem of the permanent minority. It is the provision of constitutionally stipulated rights. According to the fourth and fifth recommendations regarding the democratic deficit, however, this solution is insufficient, on acount of the cultural, economic and social heterogeneity characterising 21st-century Europe.

Those championing the fourth position consider it unsatisfactory, as a matter of principle, to present the suprastatism of the European Union as provisional in nature. The deficit ought, in their view, to be defended more aggressively. They argue that the notion of representation for individual citizens must be abandoned. Otherwise, no effective defense of the prevailing constitutional asymmetry can be mounted against the onslaught of those wishing to abolish it.

According to those recommending the surrender of representative government, suprastatism and accountability should be reconciled in a manner different from that proposed by those embracing the first three recommendations mentioned. Instead of accountability on the basis of the representative-democratic principles of individual suffrage and of mediation through the agency of parties and elected representatives, they put the emphasis on the following two principles: separation of powers within the structure as a whole, and holding referenda where all Europeans are asked to give their opinion.

The argument for surrendering representative government - as the best way of reconciling the presence of suprastatism with the absence of accountability - begins with objections to each of the other possibilities:

Figure 3. Arguments given by protagonists of a surrender of representative government in relation to strategies sdvocating its primacy.

Abandon suprastatism

Correct in principle, but the common market would disappear.

Democratise suprastatism

Correct in principle, but there is no European demos. `The great jump' is too risky.

Provisionalise suprastatism

There is no satisfactory normative theory behind such an idea of a federal balance.

Edgar Grande may serve, in this review, as an exemplar of the position that representative government should be surrendered. He formulates this standpoint by presenting it against the background of a generally embraced critique. Wholly irrespective of European integration, he avers, there is cause to criticise representative government. Such a system does not succeed in actively forming popular opinion through an interplay between electors and elected. It is, likewise, far from admirable as regards the effective control by citizens over the policies actually pursued (Grande 1996: 347 ff).

It is not with the ideal of popular government within a framework of national democracy, in other words, that Grande's recommendations should be compared. They should be assessed, rather, against the actual functioning of existing representative systems. He thus warns against the so-called Nirvana approach, which so easily appears in all political analysis. The ideal should compared with the ideal, and actual systems with actual systems. If one compares ideals with actual systems, one runs the risk of serious misjudgement.

Let us turn now to Grande's two proposals. One of his practical suggestions is transnational referenda. By such means, he suggests, a sufficient degree of legitimacy can be attained to make possible the maintenance of a structure marked by suprastatism without a corresponding mechanism for holding the European tier of government accountable. This is accomplished through having the European population as a whole adjudicate the conflicts arising from the confrontation of different constellations of union organs and member states.

The point of these transnational referenda would not be simply, he writes, to grant immediate legitimation to the changes in the Maastricht Treaty then in session. All-European referendums would be able - in the long term too, and with permanent effect - to work in a community-building manner. The word `immediate' is of central importance here. All-European referendum would work in a Europeanising direction. They would establish, as a fait accompli, a constituent power. A European demos with its own competence to establish its own competences would already be established thereby.

To this political effect may be added the establishment of a constitutional instrument of threat on behalf of European citizens. In this way the possibilities are enhanced, at the margins, that the all-European system of decision-making will become responsive, if not responsible, to the 300 million Europeans who constitute the electorates of the member states (Grande 1996: 355).

Grande's second proposal for solving the problem of suprastatism without a corresponding mechanism for holding the European officeholders accoutable is by establishing a transnational separation of powers. Given the material and institutional complexity of suprastatism in today's Europe, he argues, the responsibility of individual citizens and of parties, mass media and political organizations would simply be too much, even under the most favourable conditions. An effective control of the norm-giving and fiscal powers could only be achieved at the European level by consciously changing from a principle of individual control to one of institutional control, and achieving thereby an optimization of institutional control in the political system of the European Union (Grande 1996: 355).

Grande cites one of the Federalist articles, No. 51, according to which the different powers will "control each other, at the same time that each will be controlled by itself" (Madison, Hamilton and Jay [1787] 1987: 321). This idea is yet more relevant in the present European context, he argues. In 21st-century Europe, still more than in the 18th-century United States, the effective control of political power can only be secured through strong institutions, rather than through procedures by which individual citizens within states have their say in general elections.

On the basis of this general approach, Grande recommends that we go further - with both a stronger European Parliament and a two-chamber system at the European level, complete with the use of concurrent majorities. There is a risk, certainly, that increasing complexity will reduce the possibilities of European-level decision-making. On this point, however, we are fortunate to have the European Commission as a possible institutional arbiter and mediator. Together with transnational referenda the Commission should be enough, according to Grande, to ensure that a separation of powers does not lead in an excessive measure to a reduced capacity for action, as far as the use of suprastatism for integrative purposes is concerned.

Grande argues that, as a general matter, there is a dilemma here which must be confronted. The separation of powers should not, on the one hand, be permitted to produce a total decisional blockade. On the other hand, a system of mutual institutional controls - based on the separation-of-powers principle - is needed. According to the conceptual framework embraced by Grande, however, no demand for democratic accountability follows from the latter requirement. Such a notion orginates, namely, in the idea that legitimate governance issues from private individuals who are represented by those they elect. If we surrender this notion, the problem can be solved. In surrendering representation, those disposed to defend the democratic deficit emerge from their quandary more easily than if they cling stubbornly, in Grande's view, to the much more demanding alternative of keeping suprastatism provisional.

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