Jean Monnet Center at NYU School of Law


Criteria for Evaluation

When it comes to evaluating these three preservationist options - as compared both with each other and with the two abolitionist approaches - we require some basic criteria of a more general kind. There are, as far as I can see, two ways of approaching this question. One is to compare the options in terms of end result, the other is to compare them in terms of process.

If one selects the end-result method, a checklist approach may be suitable. To my mind, Michael Zürn's suggestion of a fourfold checklist has moved the debate on the democratic deficit a large step forward. At the top of his list comes congruence. In principle, those who are affected by decisions (as objects) should also be those responsible for them (as mandators). If the degree of congruence is too small, the persons affected will consider the system of governance to be alien, in the same way that the law was alien under feudalism. There is a lack of fit, under such conditions, between the range over which democratically legitimated decisions apply, on the one hand, and the range of relevant social and economic relations, on the other. This lack of fit creates a new form of alienation and non-decision-making (Zürn 1996: 39).

The second criterion with which Zürn presents us is identity. Of course, a `demos' need not be an `ethnos' as well. However, the members of a demos must be `identical' in the sense of recognising each other as members of the `same' political community. In practice, this means a preparedness to accept the use of the majority principle and of revenue-sharing, I would like to add. Joseph Weiler and his co-authors (Weiler, Haltern and Mayer 1995: 13 f) provide a good example. They suggest, as an intellectual experiment, the entry of the Kingdom of Denmark - with its four million citizens - into the Federal Republic of Germany as a seventeenth Land. How would the Danes then be different from the four million Germans who vote for the Greens (and who form something of a permanent minority within the political system of Germany as a whole) ? Accepting the majority principle presupposes, in other words, the existence of a community of communication, of memory, and of experience. The countries of Western Europe do not, taken as a whole, constitute a community of communication. Nor do they form a community of memory, and only to a very limited extent are they a community of experience (Kielmannsegg 1996: 57).

The third criterion in Zürn's fourfold scheme is reversibility. Democratic theory rests on the epistemological notion that decisions are not eternal truths. They should be seen, rather, as the result of an interplay between interests and convictions. We must therefore accept that future decisions on any given issue may differ from past ones, i.e., new decisions may proceed in a different and even contrary direction. This is an important, if largely implicit, reason for accepting majority rule in a democracy (Zürn 1996: 41). Under modern conditions, it is true, reversibility is hard to achieve for two reasons. One has to do with the empirical character of technologies like nuclear power. The use of simple majority rule is difficult in such cases, for technologies of this type have irreversible consequences as to their substance. The second reason derives from the phenomenon here discussed, i.e., a system of procedural and substantive policy asymmetry which tends to render decisions irreversible. For neither in the public discourse nor (all the less) in an election campaign is the actual majority on any specific question confronted, in such a system, with a potential majority for an alternative policy.

Michael Zürn's fourth criterion is accountability. Democracy is not preferable to other forms of governance just because the majority is entitled to rule. A still more critical reason is that democracy makes it possible to dismiss bad or incompetent rulers. Not only decisions but the holding of political office too should be reversible. For an electorate vis-à-vis its parliament, and for a parliament vis-à-vis its government, this is an imperative demand. Its effective execution requires, moreover, a minimum of accurate information, and a general grasp of the achievements of the political system as a whole (Zürn 1996: 41 f).

I would propose here that we use Zürn's four criteria as a normative guide for deciding whether to abandon suprastatism, to democratise it, or to preserve it. The last-mentioned can be accomplished by provisionalising suprastatism, surrendering representation, or abandoning accountability.

Abandoning suprastatism entails establishing a confederation. In an association of states of this sort, all four criteria are satisfied. Citizens decide for themselves, and they have no difficulty in accepting the majority principle within their own state. As far as the element of multi-level decision-making is concerned, policies can be easily reversed. The power of citizens to force governments and legislative majorities from office for political reasons, moreover, is in no way threatened, for decisions in a confederal system are taken in each member state singly. Common decisions in a confederation are not binding until they are ratified by each and every member state in accordance with its own constitutional provisions.

Democratising suprastatism means founding a federation. If the EU were transformed into a multi-level state of that kind, the European parliament would be made the ultimate repository of the legislative and - indirectly - the executive suprastatal powers. A federation would work in the same way as member countries such as Austria, Belgium and Germany, all of which are federal in character. The criterion of accountability would then be satisfied. The same could be said of the criteria of congruence and identity.

The matter is trickier in the case of the reversibility criterion, which is difficult to satisfy in any federation. Reversibility is satisfied far better, however, in an outright federation than in the present system of double asymmetry and provisional suprastatism. If the EU were a federation, central political issues would be the stuff of a Europe-wide discourse and will-formation, and the composition of the European Parliament would be the decisive factor in resolving conflicts between the member states and the suprastate.

Provisional suprastatism represents the maintenance of the status quo. This is preferable, I would argue, to the other options available. Double asymmetry based on provisional suprastatism perhaps can be said - at a stretch - to fulfil the criteria of congruence and identity, but it certainly cannot be deemed satisfactory in the case of reversibility and accountability. Avoiding majority decisions and making as few decisions as possible at the suprastatal level is a pragmatic way to avoid violating the criteria of identity and congruence more than is absolutely `necessary' to defend the four freedoms.

However, a multi-level decisional system which is not federal - in the sense that governance at its suprastatal level is not founded in direct and general elections - cannot be accepted from the standpoint of reversibility and accountability. As long as elections to the European Parliament do not carry significant political weight, policy alternatives and policy openings are not being confronted according to the principle of majoritarian rule at the European level. The result is that important policies are made by the European governments in common and, thereby, on an unaccountable basis, and with irreversible effect (Zürn 1996: 47).

Surrendering representation, according to Edgar Grande's theory, violates all four of Michael Zürn's criteria. The political structure of European suprastatism would then be turned into a system marked by a transnational separation of powers. Each single element in the system of countervailing powers would be released from its inherent element of individual representation. The Commission, the Parliament, the Court and the Council of Ministers would continue to exist, alongside a system of transnational referenda. The important thing here is checks and balances, not identity, congruence, reversibility and accountability.

Abandoning accountability, according to Giandomenico Majone's theory of technocratic rule, violates the criteria of reversibility and accountability, but not necessarily those of identity and congruence. The last two criteria could be upheld even in a political machine without mandators, in which citizens could change neither policies nor office-holders. In such a system the governing elite will hold referendums. People will identify themselves with the state, but they will have no influence.

From an end-state point of view, provisional suprastatism does not seem an especially good solution. As seen from the standpoint, however, of the piecemeal constitutional engineering (Popper 1945, ch. 9), it might be thought preferable to its abolitionist and preservationist alternatives:

[Utopian] principles, if applied to the realm of political activitity, demand that we must determine our ultimate political aim, or the Ideal State, before taking any practical action. Only when this ultimate aim is determined, in rough outlines at least, only when we are in the possession of something like a blueprint of the society at which we aim, only then can we begin to consider the best ways and means for its realization, and to draw up a plan for practical action (Popper 1945: 138).

The politician who adopts the piecemeal method, in contrast, may or may not hope that mankind will one day realize an ideal state, and achieve happiness and perfection on earth. However she or he will

be aware that perfection, if at all attainable, is far distant, and that every generation of men, and therefore also the living, have a claim; perhaps not so much a claim to be made happy, for there are no institutional means of making a man happy, but a claim not to be made unhappy, where it can be avoided. The piecemeal engineer will, accordingly, adopt the method of searching for, and fighting against, the greatest and most urgent evils of society, rather than searching for, and fighting for, its greatest ultimate good (Popper 1945: 139).

Scharpf, for his part, argues implicitly in such terms when presenting the provisionalising version of the preservationist position. Economic interdependence is nowadays so far-reaching, he avers, that it would be irresponsible to adopt a strategy of abandonment. The re-introduction of member state self-determination into the negatively integrated single market - the confederal solution - would not simply violate the treaty: "[E]scalating national protectionisms would not just mean the end of the Union, it would also plunge the European economy into catastrophic straits" (Scharpf 1995: 582).

Nor, in Scharpf's view, should the suprastatal order be democratised. The legitimacy of the suprastate is admittedly weak. In practice, however, a strategy of democratising suprastatism - in accordance with the federal solution - would lead to unacceptable results. For it would mean that, during a transitional period of uncertain length, the more legitimate law would be superseded by the less - all in order to achieve a better state of affairs in a distant future. This would mean, in practice, that the legitimacy of member-state democracies would decline, without a corresponding growth in the democratic legitimacy of the suprastate.

Much is therefore at stake if politics at the European level remains weak, while politics at the national level has lost its effectiveness. The only way to avoid this horror scenario is to employ the limited opportunities of action present at both levels - national and European - in such a way that the existing opportunities for effective policy are exploited, and predictable frustrations are side-stepped. This has important implications for the relationship between European and national policy (Scharpf 1995: 583f).

The thrust of my argument may be summed up as follows: comparing different options in terms of piecemeal constitutional engineering means that we must identify, specify, and try to falsify our premises. A piecemeal approach should not be thought, however, to imply a defence of the status quo, i.e., in this context a preservationist position. The point is that the premises underlying each and every step in the development of our constitutional policy should be rendered clear and falsifiable. Premises supporting the status quo are quite as important to clarify and to corroborate as premises underlying policies of change.

Virtually all of us have, at the very root of our thinking on the democratic deficit, a psychological tendency to let ourselves be inspired (consciously or not) by a well-known three-stage metaphor. I have in mind the threefold tale of Paradise, Fall and Resurrection. From the Medieval Paradise the Renaissance and Reformation were sprung, and the system of sovereign states replaced the indivisible Universal Community in sacred union with the Holy Church. Yet the modern system of sovereign states in Europe has never lost its telos, according to this implicit and idealistic creed. Through its re-unification, Europe shall be resurrected from the consequences of the Fall of Man. At present, it is true, divisions, splits and schisms prevail. In the future, however, Europe shall return to its true self, as once it existed under Pope and Emperor.

According to the principle of piecemeal engineering, however, policies should be formulated in small, clearly stated stages so that their premises can be tested. If, furthermore, we refuse to accept telos as an argument, it becomes urgent to criticise what is often said in the current political debate on the process of European integration. For criticism is in fact called for, and should be delivered along two different lines.

My first point - and an elementary one it is indeed - is that there is no immanent goal called `united Europe'. Events and developments in the area of European integration are not the servants of some underlying purpose or cunning of history. Only individuals exist - individual people who actively prefer that certain steps be taken or not taken. The surrender of congruence, identity, reversibility and accountability cannot be justified by reference to `integration' as an historical `process' aimed at bringing Europe back to its `true self'. The democratic deficit cannot be defended on the grounds that is a `necessary' element whereby the `natural' development of things is accelerated. The double asymmetry - of power and responsibility and of positive and negative integration - can only be discussed, and should only be discussed, in terms of falsifiable propositions. These propositions should relate to the intended and unintended consequences that the double asymmetry brings - in terms of employment, economic growth, social improvement, the loss of democracy, the risk of war, etc.

Second, more `integration' should not be considered, by definition, to be `better' than less. The outcome one prefers - as regards congruence, identity, reversibility and accountability - must be argued for in terms of falsifiable propositions concerning the anticipated consequences of accepting double asymmetry vs. not accepting it. The question is which option is preferable to the available alternatives at any particular time. Which is considered better must be allowed, moreover, to change over time and in accordance with experiences gained. A step in the direction of more integration is not a priori better; it should not be equated automatically with progress. Such a step may indeed take the member states one step higher, in terms of the integration stair-case metaphor. However, being taken one step higher up the stair-case does not by definition mean an improvement. The level is higher but not necessarily better.

One can say, as Bela Balassa did when presenting his metaphor in 1961, that the various steps represent varying degrees of integration.

In a free trade area, tariffs (and quantitative restrictions) between the participating countries are abolished, but each country retains its own tariffs against non-members. The establishment of a customs union involves, besides the suppression of discrimination in the field of commodity movements within the union, the creation of a common tariff wall against non-member countries. A higher form of economic integration is attained in a common market, where not only trade restrictions but also restrictions on factor movements are abolished. An economic union, as distinct from a common market, combines the removal of restrictions on commodity and factor movements with a degree of harmonisation of economic, monetary, fiscal, social and countercyclical policies (Balassa 1961: 5f).

A political union - or what Belassa calls "total economic integration" - involves "the unification of economic, fiscal etc. policies and requires the setting up of a supranational authority whose decisions are binding for the member-states" (Balassa 1961: 5 f). Whether this will work or not obviously has something to do with how realistic it is to reconcile suprastatism with the absence of accountability. This can be done more easily at the lower stages of the stair-case. The common market is the last step, which does not imply more than regulatory policies. Monetary union might imply fiscal union and thereby indirectly the need for making federal taxation and spending policies accountable to the European Parliament.

In the light of the stair-case metaphor, a terminology for describing varying degrees of integration is not the same as a theory of European federalism as a pre-determined process of ever-closer union. As an acceptable theory, such a notion would have something falsifiable to say in three respects. First, is it an accurate description that the various steps in the staircase are being reached in accordance with an inherent logic ? Second, is it a plausible explanation that the process of integration is determined by its immanent purpose? Third, is it a reasonable prescription to recommend that these steps be ascended one after the other, in accordance with a given logic ?

My answers to these three questions are all decidedly in the negative. No other ultimate criterion is possible, in my view, than the reformist one stated by Karl Popper, to the effect that we should "be aware that perfection, if at all attainable, is far distant, and that every generation of men, and therefore also the living, have a claim". This means that the perfectionist solutions - whether they entail abandoning suprastatism or democratising it - are unavailable in practice. This notwithstanding the fact that they may be perfect according to the checklist approach.

The proposals to surrender representation or to abandon accountability may be reconcilable with some scheme of Madisonian democracy. Yet, however reconcilable in such terms, they have great difficulty meeting the Zürnian criteria. In conclusion - and this is decisive in my view - they are normatively unacceptable. I cannot accept a political theory not built on the principles of representing individuals and open for the possibility of changing policies and office-holders as the result of general elections.

From the standpoint of piecemeal constitutional engineering, in sum, it would appear that provisional suprastatism remains the best available option, and preferable to both its two preservationist and two abolitionist, surrender representation or abandon accountability competitors.

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