The European Union
as a
mixed modern regime?
An analysis of the contribution of
counter-democracy and new forms of legitimacy
to the debate on EU’s democracy
- based on a theoretical framework by Pierre Rosanvallon -
University of Amsterdam, July 2014
Political Science, Master thesis: New forms of Governance, from EU to the World?
Jolanda van de Beld
Supervisor: prof. dr. J.H. Zeitlin
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Table of contents
1 Introduction 2 2 Theoretical framework of Rosanvallon: the mixed regime of the moderns 6
2.1 The mixed modern regime 6
2.2 New forms of legitimacy: non-majoritarian institutions 2.2.a Legitimacy of impartiality
2.2.b Legitimacy of reflexivity 2.2.c Legitimacy of proximity
2.3 Counter-democracy 11
2.3.a The power of oversight 2.3.b Negative power: prevention 2.3.c People as judge
2.4 Unpolitical democracy 16
2.4.a Repoliticization
3 Legitimacy and the democratic deficit of the European Union 18
3.1 The relationship between ‘democratic deficit’ and legitimacy 18
3.2 Legitimacy questions regarding EU 19
3.3 A democratic deficit? 21
3.3.a A constructive approach to the EU’s democratic deficit 3.3.b An institutional approach to EU’s democratic deficit 3.3.c A ‘new standards’-approach
3.4 Rosanvallon’s theory: added value? 27
3.4.a Three forms of legitimacy: applicable to EU level?
3.4.b Counter-democracy to overcome the ‘democratic deficit’? 3.4.c The transformation of democracy
4 EU new modes of governance: opportunities for counter-democracy? 34
4.1 New modes of governance 35
4.1.a Experimentalism
4.2 EU democracy as a testing ground? 38
4.2.a Exercising the power of oversight 4.2.b Exercising preventive power 4.2.c Judgement
4.3 Compatibility of counter-democracy with new modes of governance 43
5 Conclusion 46 6 References 49
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1. Introduction
The European Union is under attack from criticism on its democratic legitimacy and its capability to represent European citizens adequately (Bache et al., 2011: 68). In the past decades a large quantity of literature has been published on questions of legitimacy in the EU and the assumed or denied existence of a ‘democratic deficit’. This ongoing debate seems to generate entirely different outcomes and solutions, due to the fact that evaluations start from different normative premises. In fact, this debate is actually about the nature, functions and goals of the European Union (Majone, 1998: 6). Apparently, in this way it is not easy to give an answer to the question of whether the EU is democratic legitimate and representative or not. To analyse these issues, one has to start with theoretical concepts and agreement on the standards that should be uses. What kind of democracy should we pursue? What should the role of citizens in this type of democracy ideally be? What institutions are needed to realize the functioning of the democracy we pursue?
Of course there is also a huge quantity of literature addressing the aforementioned questions about the nature and transformations of democracy over time and in different countries. One of the political theorists engaged with democracy theory is the French academic Pierre Rosanvallon.
Rosanvallon is professor of Modern and Contemporary Political History at the Collège de France and also professor at the École es Hautes Études en Sciences Sociales. His work is mainly dominated by the political and intellectual history of France since the Revolution, contemporary questions of social justice, and the definitions and trajectories of democracy. In many of his essays and books one can find an expression of his hope for democratic revitalization (Rosanvallon, 2006 & 2008).
Alongside his many works on the development of democracy through the ages, one of his books is particularly devoted to the notion of distrust in a democratic regime. Rosanvallon argues that distrust plays an important role in the development of democracy today. Therefore, instead of being pessimistic about the future of democracy, we must recognize new democratic practices that are being developed in the ‘age of distrust’. Rosanvallon delineates a so-called ‘mixed modern regime’, in which ‘counter-democratic’ practices play a key role alongside electoral-representative elements.
Accordingly, the title of this book is Counter-Democracy. Politics in an age of distrust – translated from La contre-démocratie. La politique à l'âge de la défiance (Pierre Rosanvallon, 2008). This book was well received by critics, who considered his book as one of the best attempts to produce a ‘new
3 realist theory of democracy’ (e.g. Schmitter, 2010: 889). Hence, he succeeds in provoking readers to think about the value of counter-democracy for democratic theory (Ansell, 2011: 706).
A few years later, Rosanvallon elaborated his ideas of the mixed regime of the moderns by explicating the additional third ‘pillar’ of his modern regime. In addition to the electoral-representative pillar and the counter-democratic one, there is also an important role for government institutions whose legitimacy is not based on majority rule, i.e. voting. In his book Democratic Legitimacy.
Impartiality, reflexivity, proximity – translated from La légitimité démocratique. Impartialité,
réflexivité, proximité (2011), Rosanvallon argues that the sources of legitimacy have shifted and that
we can use new forms of legitimacy to reinforce the democracy instead of abandoning it.
Despite the fact that Rosanvallon focuses only on national democracies, his theory is quite general in scope. Hence his scheme of a mixed modern regime and the counter-democratic mechanism he describes might also be useful at the supranational level. In other words, the theory of Rosanvallon can be applied to the questions we face with regard to the EU’s democratic legitimacy. It is striking that the name of Rosanvallon did not appear in articles and research on the topic of EU democracy so far. As I already mentioned, we have to start with theoretical assumptions when analysing the EU’s democracy and legitimacy and I consider that it might be very useful to start with the theory of
Rosanvallon. The notion of democratic deficit is essentially concerned with accountability of the EU to the citizens, the degree of representation, the sources of legitimacy, and these elements are addressed by Rosanvallon in his books.
In this thesis I try to combine the theory of Rosanvallon on counter-democracy and the mixed modern regime with existing research and findings in the field of the EU’s legitimacy and democratic deficit. I will begin with an exegesis of Rosanvallon’s arguments in the next chapter. I set out first the elements of the mixed modern regime. After that I will continue with an explanation of his views on the new forms of legitimacy. As we will see, these forms of legitimacy are all based on democracy’s fundamental value of social generality, which can be understood as individual equality. Rosanvallon develops three such forms: legitimacy of impartiality, legitimacy of reflexivity and legitimacy of proximity. This new distinction between sources of legitimacy might be useful when we turn to the discussion of legitimacy in the EU. As Rosanvallon says, his division goes beyond the notions of input and output legitimacy (Rosanvallon, 2011: 8), and may thus shed a new light on the problem of EU legitimacy.
4 In the next section of the second chapter, I will move from what Rosanvallon calls the ‘realm of the institutions’ to the ‘realm of the citizen activism’ (Rosanvallon, 2011: 221). I will explain the three mechanisms of counter-democracy as developed by Rosanvallon. Counter-democracy can be situated in civil society and enhances the exercise of popular sovereignty in ways different from elections. Rosanvallon identifies three mechanisms in which people can have influence on their political leaders and the government: the power of oversight, the power of wielding a veto, and the power of judgment. These forms of exerting power and exercising popular sovereignty are complementary to the
expression of will by means of voting. The notion of counter-democracy can thus broaden our conception of popular sovereignty in a democracy.
In chapter three I will try to relate the theory of Rosanvallon to the debate about democracy and legitimacy in the EU in general. The main question will be whether Rosanvallon’s theory about the mixed modern regime can contribute to this discussion. The first sections of this chapter provide an overview of the debate on legitimacy, how it relates to the democratic deficit and how it can be distinguished in three forms: input, output, and throughput legitimacy, whereby different arguments can be categorized. After that, the different sections about the democratic deficit will capture different approaches to this issue: constructive and institutional. In the end it will turn out that we need one more category which can be considered as a ‘new-standard’-approach. It seems that Rosanvallon’s theory is corresponding with this last approach, even though it is built on different theoretical
conceptions. The last sections of chapter three will address the question of democratic deficit in light of new forms of legitimacy and counter-democracy. The final section takes into account an essay on the future of the European Union, written by Rosanvallon and analyses how this can be related to the current debate.
Chapter four gives a more in-depth analysis of the opportunities for counter-democracy for overcoming the democratic deficit within the framework of new modes of governance in the EU. While there is already a large quantity of research on implications of these modes of governance for democracy and legitimacy, this chapter explores whether or not there are opportunities for citizens’ powers of oversight, prevention or judgement and, again, whether or not these theoretical conceptions of Rosanvallon contribute to the debate. Especially the power of oversight seems to be very useful and enforceable with regard to new modes of governance and in particular experimentalist governance. The exercise of the other two counter-democratic powers is hampered: preventive power by the
5 courts. Moreover, we will acknowledge that first the power of oversight should be secured, before people can proceed to preventive or judgemental actions. However, it will appear that access to information, justification and transparency with regard to decision- and policy-making in the EU are important prerequisites for the feasibility of counter-democracy.
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2. Theoretical framework of Rosanvallon: the mixed regime of the moderns
In the view of Rosanvallon, there has been a change in the meaning of democracy since the 1990s. To understand this transformation and the apparent decline, we must look at the foundations of modern politics (Rosanvallon, 2006: 189). In the first section of this chapter I will explain the general idea of Rosanvallon’s so called ‘mixed modern regime’. The second section is reserved for taking a closer look at the realm of institutions and new forms of legitimacy in this regime. The third section will zoom in on another aspect of the mixed modern regime: counter-democratic initiatives from citizens. In the last section the notion of unpolitical democracy will be the focus of attention.
2.1 The mixed modern regime
According to Rosanvallon, the political is an expression of the collective will. Society, however, has become more and more complex and in consequence people lost their confidence in something called ‘collective will’. This notion only made sense when ‘the unity of society and the clarity of a common desire went together’ (Rosanvallon, 2006: 193-194). Still, the most important thing in a democracy is the notion of popular sovereignty. But simply assuming that the electoral vote is the sole principle of popular sovereignty, which Rosanvallon calls the traditional conceptualization, is not enough anymore. The collective or general will that is expressed through the ballot box only seems an outdated
assumption. Today there are many other forms to express popular sovereignty and for this reason, Rosanvallon maintains the concept of ‘complex sovereignty’ (Rosanvallon, 2006: 200). The
complexity of the people and the ongoing problem of the localizability of the people make democracy a political form that is always incomplete and always in process (Rosanvallon, 2006: 204). Complex sovereignty means new ways ‘to have a voice, to formulate opinions, to exert power, to announce a judgment, to maintain supervision, to manifest agreement or opposition – to participate, in a word, in public life’ (Rosanvallon, 2006: 201). The monistic vision of the political must be replaced by a pluralistic vision: besides the institutional forms of exercising sovereignty, the people also exercise their power through non-institutional forms, for example demonstrations (Rosanvallon, 2006: 200).
The principle of another form of exercising popular sovereignty beside elections is the basis for the concept of counter-democracy which Rosanvallon developed several years later. I will come back to this in detail in the second section of this chapter. For the moment, we can consider
counter-7 democracy as other ways to practice popular sovereignty, mostly indirect in contrast to the direct exercise of power through elections. This combination is called ‘democratic dualism’, which is a part of the mixed modern regime. Electoral-representative government, indirect practice of power – counter-democracy –, and political deliberation and reflection are the three pillars of this regime (Ansell, 2011: 706, Rosanvallon, 2008: 313). The mixed modern regime is a combination of political and social practices in which various forms of social expression – the pillar of counter-democracy – contribute to the structuring of the political field (Rosanvallon, 2008: 249).
The mixed modern regime is unique, according to Rosanvallon, because of a whole new division of powers. This indirect democracy has a new design of checks and balances and brings new insights regarding input and output democracy (Rosanvallon, 2006: 245). Also this new democratic system is a ‘decentred’ one. This decentring of democracies follows from the fact that we no longer assume that elections and the majority rule form the central principle of a democracy. New forms of representation and indirect power practices have made democracy in the appearance of a mixed modern regime more complex (Rosanvallon, 2011: 219).
2.2 New forms of legitimacy: non-majoritarian institutions
In a mixed modern regime, elections and majority rule are no longer considered to be the central principles to legitimize a government. The complexity of society that is an incentive for the
development of complex sovereignty also entails another consequence: the difficulty to achieve social generality. It seems here that Rosanvallon invents his own phrasing for individual equality, because social generality refers to equal access civil services and equal treatment by institutions, e.g. courts. Political equality at the ballot box therefore became complemented by social equality with regard to public administration. Rosanvallon mentions this equal access to civil services as ‘bureaucratic legitimacy’. Along with electoral legitimacy, these two principles guaranteed the legitimacy of the state and the government until the 1980s (Rosanvallon, 2011: 4). However, the old system with dual legitimacy collapsed, due to the ‘desacralization’ of elections and the decrease in valuation of the ascribed moral and professional qualities of bureaucracy. The aforementioned counter-democratic practices, discussed in the next section, are also reactions to the desacralization of the electoral-representative principle of democracy. It seems that in Rosanvallon’s opinion, counter-democracy is mainly a new form of exercising popular sovereignty, in addition to voting. In his book Democratic
8
Legitimacy (2011) Rosanvallon focuses on achievement of social generality by institutions based on
non-majoritarian forms of legitimacy.
After the collapse of the old system, Rosanvallon recognizes a need for a more dynamic approach to social generality. A society should be understood neither as a monist unity, nor as a totality with ‘unanimity as an underlying ideal’ (Rosanvallon, 2011: 7). This dynamic approach results for Rosanvallon in three new ways to achieve social generality and consequentially three types of legitimacy.
2.2a Legitimacy of impartiality
The first way in which social generality can be achieved is, in Rosanvallon’s words, called ‘negative generality’. This is more or less another term for an empty locus of power in a democracy: no one can claim or appropriate this place. The type of legitimacy associated with negative generality is the legitimacy of impartiality (Rosanvallon, 2011: 6, 7). Authorities and institutions can gain legitimacy by being independent and maintaining a distance or equilibrium. While electoral legitimacy rests on quantitative social weight, legitimacy of impartiality is based on the guarantee that no individual should benefit from an advantage or from privileges (Rosanvallon, 2011: 97). In practice, the
institutions one can think of in this approach are independent regulatory agencies and oversight bodies (Rosanvallon, 2011: 137). However, these independent authorities are not elected, so are they
democratic legitimate? For Rosanvallon, the legitimacy of impartiality is one of efficacy, a functional type. In this point of view, institutions are not related to society in the same way as elected bodies, but through the importance of services they render. Therefore these institutions are acknowledged as legitimate by the people as users of public services (Rosanvallon, 2011: 87). Legitimacy of impartiality can be understood as ‘output legitimacy’, but the question remains if it is also democratic in some way. Are these independent and efficient authorities also representative? And is it possible for citizens to exert control over them? Can they be held accountable? (Rosanvallon, 2011: 87).
If we look at independent authorities, we can easily conclude that they are not democratically representative in a procedural or functional sense. That means, they are not delegates chosen by election and they are also not serving as a reflection of the community. But we can understand independent authorities as ‘pragmatically representative’. Rosanvallon argues that pragmatic representation means attentiveness to aspirations and demands of citizens, and social conflicts,
9 88). This pluralistic view on society is also why partisan politics is essential. Another dimension of politics, however, is also very important for pragmatic representation: in a democracy citizens need to be ensured that they are treated fairly and that discrimination is eliminated. This is where legitimacy of impartiality finds its place. In the words of Rosanvallon: “In this respect, the politics of impartiality is an essential tool for building a democratic society” (Rosanvallon, 2011: 120).
2.2b Legitimacy of reflexivity
The second manner of achieving social generality is considered by Rosanvallon as ‘generality of multiplication'. The aim here is to multiply the expression of social sovereignty and to compensate for the shortcomings of the expression of general will by the ballot box. Legitimacy based on this notion is called ‘legitimacy of reflexivity’ (Rosanvallon, 2011: 6, 7). When we assume that the general will can be fully expressed through the ballot box, we implicitly make three other assumptions: the choice of the voters is equal to the general will, the voters are equal to the people in the state and political activity will continue in the same way from the moment of voting. It is easy to see that these
assumptions are not realistic. For Rosanvallon, a reflexive democracy is a democracy that is willing and trying to compensate for these unrealistic suppositions. Compared to negative generality, which ‘depends on creating a new position from which the demand for unanimity can be satisfied, here the method is to multiply various more limited approaches so as to achieve a relatively comprehensive vision of the whole (Rosanvallon, 2011: 123).
An important role with regard to reflexive democracy is to be played by constitutional courts. According to Rosanvallon, constitutional courts practice oversight on other government institutions and hence increase indirectly the power of citizens over these institutions. The line of argument here is as follows: citizens are always at risk of oppression by the government; anything that tries to limit the government is thus in the interest of the people, because it reinforces their power. Rosanvallon
summarizes: ‘The people chose those who were to govern directly and then installed constitutional judges to keep an eye on them. Elections and judges thus jointly imposed social control on the legislative power’ (Rosanvallon, 2011: 139-140). There is also another important balance between these two institutions: constitutional law is designed to maintain fundamental democratic values, whereas elected officials are most of the time occupied with short-term politics. Together, parliaments and constitutional courts contribute to a more pluralistic democracy in which the power of the people is exercised directly and indirectly (Rosanvallon, 2011: 142).
10 It is, however, not only the constitutional courts that can lean on the legitimacy of reflexivity. Also civil society organizations or critical work of social scientists can reveal and denounce the
shortcomings of the government’s electoral legitimacy (Rosanvallon, 2011: 148). Their role is also one of bringing the people back into the political sphere, between the moments of election. Citizen
participation and public deliberation are at stake here.
Just like with the regulatory agencies and oversight bodies that enjoy legitimacy of impartiality, we have to ask the question whether constitutional courts in themselves are democratic. When we follow Rosanvallon, we can assume that they contribute to democracy, but is it not a problem that they are not elected bodies themselves? It seems that Rosanvallon refutes the problem of the unelected character of constitutional courts by claiming that electing judges to these courts would be even more problematic. He argues that the notion of capacity for reflection is the most important one. Besides, judges of constitutional courts should be concerned primarily with the common good. In the case of reflexive institutions a reduction of politicization is needed, because a more partisan setting would decrease the concern for the common good and destroy the capacity for reflection (Rosanvallon, 2011: 163, 167).
2.2c Legitimacy of proximity
The third and last form of legitimacy explained by Rosanvallon is one of proximity. This is based on achieving social generality by paying attention to particularity. A government should pay attention to everyone’s problems and should forget no one; in this way generality can be understood (Rosanvallon, 2011: 6). In contrast with the legitimacy of impartiality, proximity means that people want their
particular situations to be taken into account. There is an increased call for political leaders that consult the people in their considerations about policy making. The aspiration for proximity also targets other institutions, such as the police and the courts. It makes clear that citizens have the feeling that their government is not able to express their needs and feelings. The term proximity refers to presence, attention, empathy, as well as to accessibility, receptiveness and openness of political leaders. Besides, people want them to explain their decisions and secure transparency. Finally, people do not want to be subject to rules that are inflexible. Proximity implies adaption to the diversity of situations and
contexts (Rosanvallon, 2011: 171-172).
In the context of relations between government and the people many initiatives have emerged since the 1990s: public forums, public opinion surveys, conferences and committees at different levels
11 of government (Rosanvallon, 2011: 203). According to the principle of proximity, these initiatives can claim legitimacy. Rosanvallon uses here the term ‘participatory democracy’ with which he refers not only to government initiatives, but also to the popular aspirations mentioned above. He also recognizes a transformation in political engagement and a change in the relationship between citizens and leaders: ‘The locus of democratic activity seems to be shifting to civil society, and people seem to be looking for new ways to express themselves. (…) The scope of this interactive democracy is much broader than the electoral-representative system’ (Rosanvallon, 2011: 208-209). This assertion is maybe the clearest reference to his earlier developed idea of counter-democracy, what is now going to be discussed in the next section.
2.3 Counter-democracy
In his book Counter-democracy. Politics in an age of distrust (2008) Rosanvallon had already developed a great part of his ideas about interactive democracy, complex sovereignty and
representatives into an concept he calls ‘counter-democracy’: ‘A form of democracy that reinforces the usual electoral democracy as a kind of buttress, a democracy of indirect powers disseminated
throughout society – in other words, a durable democracy of the usual electoral-representative system. Thus counter-democracy is part of a larger system that also includes legal democratic institutions. It seeks to complement those institutions and extend their influence, to shore them up. Hence counter-democracy should be understood and analysed as an authentic political form’ (Rosanvallon, 2008: 8).
In the opinion of Rosanvallon, a representative democracy always includes distrust, but that is no reason to be pessimistic about democracy. Contrary to what one might think, distrust plays an important role in the development of a democracy (Rosanvallon, 2008: 4, 5; Rosanvallon, 2011, 221). In short, he claims that democratic distrust among people can lead to counter-democratic actions. This counter-democracy can occur in three dimensions: surveillance or oversight, prevention and
judgement. In the first dimension of surveillance, we can consider the people as ‘watchdogs’. In the second dimension the people practice ‘negative democracy’ by wielding a veto. The third dimension can be understood as democracy of accusation, because people can act like judges (Rosanvallon, 2008: 12-18). In the following sections, the three dimensions will be discussed in more detail.
12 Oversight, or surveillance, is in fact the possibility for citizens to control their government. This
overseeing counter-power must constrain the dysfunctionality of a representative system. There are three types of surveillance that can be distinguished: vigilance, denunciation and evaluation
(Rosanvallon, 2008: 30, 32).
Vigilance means the ongoing process of monitoring, the permanent watchful eye of the citizen on the government’s actions (Rosanvallon, 2008: 33). Even though the task of the vigilant citizen seems quite passive, it is a very important mechanism. Rosanvallon uses the metaphor of the fire alarm, which he borrows from the conclusion of an article on congressional oversight in the US by McCubbins & Schwartz (1984). Before firemen can come to action, people have to sound the fire alarm. The effectiveness of firefighting depends highly on the attention of the people, in other words the vigilance of the community. This is comparable to the mechanism of vigilance as
counter-democratic power (Rosanvallon, 2008: 36). Vigilance can focus attention on issues. The last years it operates pre-eminently through the internet, in public opinion polls or reports from commissions, experts and journalists. Vigilance is comparable with what other political scientists have called ‘agenda setting’ (Rosanvallon, 2008: 39).
Denunciation is another form of monitoring the actions of a government by citizen participation. It is much like vigilance, but in a more grim form. Denunciation is used in terms of addressing political scandals. Therefore one might say that denunciation relies on the solidity of norms and values of citizens. According to Rosanvallon ‘denunciation reinforces the collective conscience by exposing what seeks to destroy it’. One can think of corruption as an example of a scandal that could be addressed by denunciation. Like vigilance, this mechanism is practiced by journalists, interest groups and other citizen organisations. For politicians, due to denunciations their reputation can be at stake. And because trust in politics depends highly on the reputation of individual politicians,
denunciation can be a powerful counter-democratic mechanism (Rosanvallon, 2008: 44, 45, 48). The third dimension of oversight is evaluation. This is a kind of technical monitoring of policies and political actions and demands more expertise and careful research from its performer. Compared to denunciation, evaluation is more about competence and efficiency than about reputation (Rosanvallon, 2008: 52). Evaluation has changed the nature of the political order and the relationship between public society and political society: ‘Increasingly, citizens are demanding that government officials prove their competence and subject their actions to regular evaluation’ (Rosanvallon, 2008: 55). Evaluation has brought tighter legitimacy constraints on the actions of governments. Citizens
13 practise their own expertise and make in a matter of fact the decision-makers ‘pupils of the people they govern, subject to constant evaluation of their performance’ (Rosanvallon, 2008: 56).
For all three types of surveillance, the media and the new media like internet are very important. But in the last thirty years there also arose independent authorities through which surveillance can be exercised. Examples of these authorities are ombudsmen and mediators which make it possible for people to give attention and publicity to their problems. These authorities also give citizens the opportunity to actually get response from government institutions that are otherwise inaccessible bureaucratic systems. Another example is the review boards that control ethical and legal norms on actions of for instance the police. Citizens who feel mistreated can turn to these
organizations (Rosanvallon, 2008: 71). Evaluation, as a type of counter-democratic surveillance, is most of the time exercised by internal audit bureaus in governmental institutions and evaluation bureaus in public society (Rosanvallon, 2008: 73).
2.3b Negative power: prevention
The second mechanism of counter-democratic power explained by Rosanvallon is called prevention, or negative sovereignty. According to Rosanvallon, this negative dimension of politics is barely analysed, but has a long history. Long before people claimed the share sovereignty through elections, they demonstrated already the possibility to resist ‘the powers-that-be’. The ways of exercising this
negative power were simply passive resistance or clever circumvention of rules. Tax resistance is one of the clearest examples (Rosanvallon, 2008: 121). Preventive power has also taken another form, namely the organized political or parliamentary opposition. The political function of this so called ‘critical sovereignty’ is to put the government to the test and force it to justify its decisions
(Rosanvallon, 2008: 156, 157).
When we look outside the parliamentary framework, we recognize for instance rebellion: the people who stand up and speak out. Rosanvallon distinguishes three types of people that stand up and speak out against the government: the rebel, the resister, and the dissident (Rosanvallon, 2008: 161). The rebel is for example the man that fights for human rights against a regime of repression. He will maybe risk his life or freedom for this, but he will not yield for the principles of the government against which he is fighting (Rosanvallon, 2008: 161). The practice of resistance is somewhat less active. For the resister it is not possible to intervene in the actions of the government. His role is one of hesitancy, disagreement and intransigence and he tries to mobilize other citizens (Rosanvallon, 2008:
14 167). The role of the dissident is comparable to the role of the resister. The dissident can be an
individual in a totalitarian regime that is the living proof of the fact that the government is unable to control all their citizens. The dissident raises doubts and bears witness to actions that regimes prefer to keep hidden (Rosanvallon, 2008: 168)
But what exactly is counter-democratic prevention in today’s democracies? According to Rosanvallon ‘the new form of preventive power is electoral in nature’ (Rosanvallon, 2008: 173). He claims that the meaning of electoral competition has changed. We do not simply choose between equal candidates, but we sanction candidates by de-selection or we reward them by re-selection. The
decision for de-selection or re-selection is made on basis of past policies. Furthermore, voters do not vote only on parties, but more on individuals. ‘To put the point a bit too strongly: no one is truly elected any more. Those in power no longer enjoy the confidence of voters; they merely reap the benefits of distrust of their opponents and predecessors (Rosanvallon, 2008: 176). Evidence for this shift is to be found in the increase of negative campaigning, a phenomenon that is most evident in the United States. Attacking direct opponents is the main task of this type of campaign (Rosanvallon, 2008: 177).
Still more forms of prevention can be distinguished. Citizens are in the position to participate in preventive actions, such as street demonstrations and pressure groups. These means can persuade or force governments to reconsider decisions and policies. Social, political and economic actors can take up the role of veto-player (Rosanvallon, 2008: 180). While we can consider this form of prevention as active, there is also the weaker form: passive consent. Abstention from voting or silence in public society can also be considered as forms of political expression. This passive consent can be seen as a rejection of the system, or a form of opposition to democracy itself. In this situation,
counter-democracy is not contributing to counter-democracy anymore. Instead of fostering citizen activity it is a decrease of activity, which is dangerous for today’s democracy (Rosanvallon, 2008: 186-190).
2.3c People as judge
Another dimension of counter-democracy is recognized by Rosanvallon: judgement. This dimension can be considered as an elaboration of the aforementioned practice of oversight: ‘citizens act as judges when they participate in various kinds of investigation, whether through media or as political activists’ (Rosanvallon, 2008: 191). Judgement is a category in between positive-electoral politics and negative or preventive sovereignty. It is a form of monitoring that result in examination and even the delegation
15 of judgement to the courts – but always in the name of the people (Rosanvallon, 2008: 191, 235). In comparison with the practice of denunciation, judgement also relies on norms and values. However, while denunciation only reveals scandals and is able to cause damage to reputation, the practice of judgment aims to restore and establish social norms (Rosanvallon, 2008: 239). Rosanvallon also considers the failure of politicians of being re-elected by voters as a form of judgement, as well as the permanent ‘tribunal’ of the parliamentary opposition (Rosanvallon, 2008: 245). Judgment should not be seen as a specific independent power, but should rather be understood in connection with the various powers of oversight and prevention. Rosanvallon concludes his chapter about judgment with the following claim: ‘The powers of judgment, along with the powers of oversight and prevention in the counter-democratic sphere and universal suffrage in the electoral-representative sphere, are yet another way of regulating the political system in a democracy’ (Rosanvallon, 2008: 247).
2.4 Unpolitical democracy
In the foregoing sections we have seen two main aspects of what Rosanvallon calls the mixed modern regime or, in other terms, the ‘democracy of appropriation’ (Rosanvallon, 2011: 221). The oversight bodies, regulatory agencies and constitutional courts belong to institutional sphere. These institutions achieve social generality in other forms than just the ballot box. The counter-democratic practices of oversight, veto and judgement belong to the terrain of citizen activism. These practices make society capable of exerting pressure on the government and exercising popular sovereignty in a form different from only electing representatives. The new division of powers between counter-democracy, indirect democratic institutions and the electoral-representative part is the core of the mixed modern regime. These elements are the ‘three pillars’ of the modern democratic regime, which he mentions already in his work on counter-democracy (Rosanvallon, 2008: 313). And it is because of this new division of power that Rosanvallon also speaks about new forms of checks and balances (Rosanvallon, 2011: 222; Rosanvallon, 2006: 245).
Despite the hopeful future of democracy in a mixed modern regime, Rosanvallon recognizes some problems, threats and pathologies that must be encountered. With regard to new forms of legitimacy the problem is that the new institutions of generality are not yet recognized, while partisan politics, conflicts and competition is more and more rejected by people. This will lead to a gap
16 between citizens and politics, the notion of ‘politics of politicians’, which is according to Rosanvallon a clear sign of an unpolitical democracy (Rosanvallon, 2011: 222-223).
Another problem we face has to do with the decentring of democracy. We should not forget that in essence the political should be visible and legible. “There is no politics if actions cannot be gathered together in a single narrative and represented on a single stage before the public”
(Rosanvallon, 2006: 247). It seems that for this reason Rosanvallon is quite sceptical about decentralized processes under the title ‘governance’. These processes of delegation, negotiation, adaption and new forms of regulation result in a decline of democratic principles. The central subject of politics, the people, disappears and gets undermined by growing influence of, for example, market-oriented actors (Rosanvallon, 2008: 262-263).
Whereas democracy also enhances the complexity of democracy, the counter-democratic actions only take place with respect to a political centre, challenging and reinforcing it. Still there is another danger in counter-democracy: it can decay into a pathological form when it becomes radicalized by populists. In this form, the mechanism of oversight becomes a permanent stigmatization of the authorities and will alienate the citizens from their government. Preventive sovereignty in this respect will become a rejection of politics in general and a pure hostile attitude towards political activity. At last, the idea of the people as judge in a reasonable area and with use of expert opinion becomes ridiculed and the very essence of power criminalized (Rosanvallon, 2008: 268-272).
2.4a Repoliticization
The most important thing to avoid or overcome the pitfall of the unpolitical is to increase legibility and visibility. Rosanvallon seems to argue that citizens today are not able to see themselves as members of a collectivity: ‘finding one’s place in a legible, visible totality has become problematic’ (Rosanvallon, 2008: 308). Before an individual can act as a political ‘subject’, one has to recognize the political society in which it can take part. Only then, Rosanvallon presumes a citizen able to see the unpolitical, or even antipolitical, nature of populism. A concluding remark in Rosanvallon’s book on democratic legitimacy is as follows: “The threat of the unpolitical, the antipolitical, and depoliticization cannot be dealt with until we explore yet another political dimension of democracy: the contested emergence of the norms of membership and redistribution in terms of which citizenship is defined” (Rosanvallon,
17 2011: 226). This seems to imply that we should think about the construction of a collectivity or a political community, before we can finally overcome the threats.
This chapter has given an overview of Rosanvallon’s theory on the mixed modern regime, with respect to new forms of legitimacy and the practices of counter-democracy. This theoretical framework is still quite abstract and tends to be at some points more philosophical than directly applicable to
contemporary issues at stake, for instance the questions concerning the democratic deficit and legitimacy of the EU. In the next chapter, however, I will try to incorporate Rosanvallon’s theory in this debate.
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3. Legitimacy and the democratic deficit of the European Union
In this chapter, we will turn to the discussion about the ‘democratic deficit’ of the European Union and different forms of legitimacy. Because of the large quantity of literature on both subjects, only a selection of them can be discussed in this chapter. Taking into account the various argument and pros and cons for the existence of a democratic deficit in the EU, this chapter will give a broad overview of the debate in the first section. With regard to different forms of legitimacy it seems that there is more consensus, although some contributions are more detailed than others. These more elaborated analyses are useful in view of the second section in which we will turn to the question how Rosanvallon’s theoretical assertions relate to the discussion about the democratic deficit and legitimacy. The
challenge here is that even though Rosanvallon’s theory is very extensive, it is still quite abstract and, in addition, focused on national-level democracy and legitimacy. The main question thus will be whether Rosanvallon’s theory about the mixed modern regime can actually contribute to the aforementioned discussion. Is his theory applicable and does it add anything useful?
3.1. The relationship between ‘democratic deficit’ and legitimacy
In a lot of the literature that has been written on legitimacy and the democratic deficit in the EU, it seems that the notions of democracy and legitimacy are used interchangeably. Although it is not my intention to clarify the concepts of democracy and legitimacy in detail, I want to start this chapter by making a distinction between these concepts. This might be useful when relating comparatively it to Rosanvallon’s theory. Rosanvallon also draws a distinction between the exercise of popular
sovereignty – elections, counter-democratic practices – and achieving social generality through different sources of legitimacy – impartiality, reflexivity, proximity. In order to start developing this distinction, I initially follow an explanation by Christopher Lord, because in line with Rosanvallon, he emphasizes popular sovereignty and equality as the core concepts of democracy.
Christopher Lord provides a useful definition of democracy as ‘a system of government in which the people rule themselves’. This definition can be reduced to two core components: ‘The first is that the public must be able to control those who make decisions on its behalf, even where it does not directly assume the reins of government; and, second, citizens should exercise such control as equals, since a condition in which some decide on behalf of others is paternalism, not democracy’
19 (Lord, 2001: 166-167). Legitimacy can be understood as a much broader concept which refers to the ‘public acceptability of the exercise of power’ (Lord, 2001: 187). The most important source for a government to obtain legitimacy is democracy: the presence of democratic mechanisms through which the public is able to control their leaders and their government. Also citizens must recognize that they have equal rights as an individual compared to other individuals. Democracy, therefore, is an important source of legitimacy, but it is not the only one (Bache et al., 2011: 68). Following this definition, it is easier to order a discussion the issues about the democratic deficit and lack of legitimacy in the EU. When we observe that the exercise of power on EU level is not considered legitimate by the people in the EU, the reason for this lack of legitimacy might be a democratic deficit, though it might also be caused by something else. When we observe, however, that there is a
democratic deficit in the sphere of the European Union, we can conclude that there is a serious problem concerning EU legitimacy.
Starting with Fritz Scharpf in 1970, political scientists have made a distinction between ‘input’ and ‘output’ legitimacy. Output legitimacy refers to the effectiveness of political outcomes for the people. The source of legitimacy here is the performance of political leaders and the government and the extent to which they are able to achieve their purposes (Bache et al., 2011: 68, Schmidt, 2013: 2). Input legitimacy refers to the responsiveness of a government to the concerns of the people. The sources of legitimacy here are electoral representation and the possibility of participation by citizens (Schmidt, 2013: 2, 4). Input legitimacy can be considered as a type of democratic legitimacy, because it is based on mechanisms which enable the public to exert power over their political leaders and control them – one of the core qualities of a democracy, as defined by Lord. So in this respect, the democratic deficit will turn out to be a lack of input legitimacy and vice versa. In the next section, different forms of legitimacy and their relation to democracy will be discussed in more detail.
3.2 Legitimacy questions regarding EU
As already mentioned, the distinction between input and output legitimacy goes back to Scharpf in the 1970s. Today this distinction is widespread in political theory and is often used in the discussion on democracy and legitimacy in the EU, for example by Moravcsik (2002), Greenwood (2007), and Bellamy (2010). In a sense, but in other words, it is also used by Majone when he distinguishes between procedural and substantive legitimacy. Procedural legitimacy is based on ‘democratically enacted statutes’, elections, and participation of the involved interest groups in the decision-making
20 process; in other words, input legitimacy. Substantive legitimacy refers to expertise and problem-solving capacity; in other words, effectiveness or output legitimacy (Majone, 1998: 20-21). A very useful contribution to this conceptualization is by Vivien Schmidt (2013). Her suggestion is that between democratic input and policy output there is an empty space – a ‘black box’ – which is reserved for so-called ‘throughput legitimacy’, based on the process of policy making. In her words, there is, with regard to policy-making processes, a need for ‘substantive values and principles guiding the performance, which make the performance valued’, and thus legitimate (Schmidt, 2013: 11, 15). While we can consider input legitimacy as participation-oriented and output legitimacy as
performance-oriented, throughput legitimacy is pre-eminently process-oriented. Mechanisms that try to increase or ensure ‘accountability, transparency, inclusiveness and openness to interest
intermediation’ can be grouped under the concept of throughput legitimacy (Schmidt, 2013: 6). Now we can elaborate Lord’s aforementioned definition of legitimacy -- ‘public acceptability of the exercise of power’ -- by using Schmidt’s contribution. Legitimacy then, can be understood as ‘the extent to which input politics, throughput processes and output policies are acceptable to and accepted by the citizenry, such that citizens believe that these are morally authoritative and they therefore voluntarily comply with government acts even when these go against their own interests and desires’ (Schmidt, 2012, 9-10). Again, input legitimacy is here the most ‘democratic’ part: Schmidt even speaks of a ‘democratic input deficit’. Throughput is understood as a kind of remedy against the deficit of input legitimacy and an upgrading factor for the value of output legitimacy, because the performance is only valuable when it is the result of good policy-making processes (Schmidt, 2012: 11, 15). This claim implies something else: output legitimacy alone – effectiveness and/or performance – can never be sufficient for legitimation of a form of government, which also applies to the EU. The argument here goes like this: ‘Even if policy performance is optimal in normative institutional output terms, if the actual content of the policies clashes with national values and principles, as reflected in European citizens’ perceptions of EU policies as acceptable and appropriate (or not), then its output legitimacy is empirically in question’ (Schmidt, 2012: 11).
In contradiction to this is Scharpf’s view, when he concludes that we need to focus on the ‘problem-solving logics of institutional output’ in the EU. In contrast to many other scholars who insist on institutionally reshaping the EU, Scharpf seems to accept the fact that the EU lacks institutional inputs – direct elections – and constructive preconditions – a pan-European demos and collective
21 identity (Scharpf, 1999: 7-21). This is not to say that he is very convinced that output legitimacy is already acquired in the EU, but for the moment we put that aside.
More important here is that the arguments of Scharpf and Schmidt roughly indicate a dichotomy in assessing the legitimacy of the EU. On the one hand, there are the scholars who take an output
approach to EU legitimacy, more or less accepting the fact of limited possibilities for democratic input at EU level. Even though there are differences when it comes to the assessment of output legitimacy, these scholars largely agree on the fact that the ‘democratic deficit’ is a myth (Majone, 1998;
Moravcsik, 2002). In the next section we will come back to this claim in more detail.
On the other hand, we see the scholars that reject the disconnection of the different forms of legitimacy, or consider democratic input and/or throughput mechanisms as the most normatively legitimate (Schmidt, 2012; Bellamy, 2010; Follesdal & Hix, 2006). Based on this argumentation, and keeping in mind that hardly any scholars think that input legitimacy is sufficient at EU level (Schmidt, 2012: 12), a democratic deficit may certainly be said to exist.
3.3 A democratic deficit?
The first question one can ask about the discussion on the democratic deficit of the EU is: why is it so important for the European Union to obtain democratic (input) legitimacy? Why do so few scholars agree with Scharpf, Majone and Moravcsik when it comes to consideration of input and output legitimacy? The answer to this question, however, remains implicit in most of the literature. Here again, it is Christopher Lord (building on Habermas and Rawls) who answers this question most explicitly by claiming that ‘the Union decisions need to be democratically controlled simply because they have the force of law. Individuals need to be able to control as equals the making, amendment and administration of any laws by which they are bound, if they are to be regarded as morally autonomous persons of equal value’ (Lord, 2012: 72). We should still be aware that we hereby make an implicit assumption that democratic control is normatively the best way of controlling a government, but I put that aside, because that leads to another discussion.
Another answer to the question above, already mentioned in the previous section, is given by Schmidt. She claims that national citizens assess policy making through representative democracy as the most legitimate in a normative sense, even in comparison with practices such as public interest consultation, which form part of throughput legitimacy (Schmidt, 2012: 15). We can thus conclude
22 that there are both theoretical and empirical reasons to stress the importance of democratic legitimacy with respect to the EU.
Three main issues are addressed in the literature on EU’s democratic deficit. One concerns whether or not a democratic deficit in the EU exists, the second concerns what circumstances underlie the existence of the democratic deficit and the third concerns possible solutions to overcome the democratic deficit. In this section, we give an affirmative answer to the first question. The third issue will not yet be addressed in this section. In fact, this section will only try to give an overview of the answers to the question of why there is a democratic deficit in the EU. To provide a structured and comprehensive explanation, I propose to group the answers and arguments concerning the ‘why-question’ under two headings: a constructive approach and an institutional approach. However, in the end it will turn out that some scholars have taken a whole different approach by questioning the standards to which EU democracy is compared. This ‘new standards’-approach is addressed in the last part of the following section.
3.3a A constructive approach to the EU’s democratic deficit
Constructive arguments for the existence of a democratic deficit refer to the absence of so-called preconditions for a democracy at EU level. Democratic input can be understood here as ‘support’ (Schmidt, 2012: 4). According to constructive critics, the EU suffers from a democratic deficit because there is no European demos, identity, solidarity or political equality, and consequently the EU is not able to develop a full-blown democracy or a welfare state (Majone, 1998: 13; Bellamy, 2012: 64-68; Walker, 2011: 97; Neyer, 2011: 171; Tsakatika, 2007: 867)
Constructive arguments are in fact sociological: ‘What we are talking about is the existence or otherwise a minimum level of ‘we feeling’ that is required both to be able to put in place the
mechanisms and to enjoy the advantages associated with democracy as a system of collective decision-making that pays equal basic concern to each of its member’s interests and preferences when coming to particular collective decisions’ (Walker, 2011: 97). In other words, we need some elements of a ‘we feeling’ or a demos to create a democracy and collective decision-making. Elements of this we feeling include the feeling that one is a member of a political community, and therefore is politically equal to other members. This means that there should be a degree of trust in other members of the political community and confidence in the fact that they will respect the political equality of other members. Furthermore, only when there is equality and trust in the political community, are members willing to
23 accept sacrifices for the benefit of the community or in order to satisfy particular interests of other members. The last element can be called ‘tolerable difference’, which refers to a sphere of respect towards the inevitable differences that exist among members of the political community. Only with the existence of a degree of tolerance or ‘mutual sympathy, will these differences not put the political community at risk (Walker, 2011: 98).
To demonstrate the absence of a European political community, critics support their claim by pointing to the nonexistence of a ‘European wide public space’. There is no shared language in Europe besides English, no pan-European newspaper or media in general which is consulted by ordinary citizens (Neyer, 2011: 172; Bellamy, 2012: 67; Greenwood, 2007: 334).
In addition, there has been a lot of empirical research that provides evidence for the lack of EU identity among citizens. This is demonstrated by answers on questions about feelings of attachment to the EU, belief in benefits of membership and the feeling of being ‘European’. Another argument for this is the fact that European politics and elections still remain ‘second-order’, behind national politics and elections (Bellamy, 2012: 66, Kröger & Friedrich, 2013: 158, Walker, 2011: 97; Follesdal & Hix, 2006: 536).
The absence of political equality can be proved by acknowledging the system of unequal representation of the member states in the European Council as well as in the Parliament, which means that small states generally have a greater say then bigger states (Neyer, 2011: 171). The democratic standard of political equality is in this respect no longer guaranteed by the principle one-man-one-vote (Follesdal, 2011b: 210). This argument thus tends to be a more structural or institutional one, but this category of arguments will be discussed in the next section.
Even though the assumption ‘If there is no demos, there can be no democracy’ (Weiler, 1999: 337) seems to give no impetus for a positive view with respect to EU democracy, there are some scholars who take a different view. These scholars make an attempt to abandon the idea of one demos and base EU democracy on a ‘group of demoi’. By doing this, the EU will become a union without uniformity (e.g. Müller, 2011: 201) – an opinion that might eventually correspond with the
aforementioned combination of ‘equality’ with ‘tolerable differences’.
After the discussion in this section, it seems that the constructive approach to the EU’s
democratic deficit addresses sociological problems, but seeks solutions on the institutional or structural level. Therefore we now turn to the institutional approach of the democratic deficit.
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3.3b An institutional approach to EU’s democratic deficit
While disregarding arguments with respect to social preconditions, another group of scholars has put forward arguments that address institutional problems and shortcomings at the EU level, which are held to cause a democratic deficit. The main issues here are the absence of a competitive party system, the lack of control by national parliaments over decision-making in the EU, the fact that the European Parliament has too little power, the absence of a direct influence on EU policy outcomes, the structure of EU policy and decision-making that differs too much from national structures and the legitimacy problems of non-majoritarian institutions (Bellamy, 2010: 3, 15-16; Majone, 1998: 5; Follesdal & Hix, 2006: 534-537, Walker, 2011: 96).
Here, to bring order to the myriad of arguments, the distinction between democratic input and process-oriented throughput legitimacy might be useful for a classification. Some arguments, namely, relate to issues of democratic representation, participation and deliberation of civil society and the absence of EU institutions which can deal with these demands properly. Other arguments point at the inadequacy of processes within institutions and the lack of mechanisms such as accountability, transparency and openness to civil society.
In principle, the EU seeks to be a representative and participatory democracy, which is
expressed in article 10 of the Lisbon Treaty. This article declares that there is a direct representation of citizens in the European Parliament, the right to participate in democratic life and therefore an open decision-making process, the contribution of political parties on EU level by forming European political awareness and expression of the will of citizens. Article 11 states that citizens will be given the opportunity by European institutions to exchange their views and ‘maintain an open dialogue with them’ (Kröger & Friedrich, 2013: 157). Even though this sounds very promising, a lot of scholars have questioned the actual existence of these mechanisms. For example, there is no contestation for political leadership between pan-European parties and therefore no real ‘European’ elections: ‘they are not about the personalities and parties at the European level or the direction of the EU policy agenda’ (Follesdal & Hix, 2006: 536). And with the absence of a pan-European ‘public sphere’, there is no real place for dialogue and deliberation between civil society and EU policy-makers (Follesdal & Hix, 2006: 556).
Other critics focus on the process of decision-making, for example the claim that the role of the European Parliament that is too weak compared to other EU institutions that are non-majoritarian. Non-majoritarian institutions tend to be technocratic rather than democratic and assume ‘the
25 availability in certain areas of something like a science of the public good, and that only specialists will possess such knowledge’ (Bellamy, 2010: 8). These non-majoritarian institutions are thus legitimated by their output, but surely not by input and throughput aspects. As already mentioned in section 3.2, there are scholars who emphasize legitimacy based on output and therefore conceive the notion ‘democratic deficit’ as a myth. However, in fact this assumption is not exclusively based on arguments concerning output legitimacy. It is also caused by another approach towards the nature of the EU and the standards by which we compare the legitimacy of the EU. The next section will explain this opinion in more detail.
3.3c A ‘new standards’-approach
Among the critics who approach the democratic deficit in institutional terms, there are some who have made a first step towards abandoning the traditional forms of democratic institutions and the existing democratic criteria against which the EU is tested. These scholars acknowledge the fact that the EU is a political entity sui generis, comparable neither to a state, nor to an international organization. The principles of representation through elections, party competition, and majority rule might be simply not feasible or applicable at EU level (Bellamy, 2010: 15; Kröger & Friedrich, 2013; Tsakatika, 2007). The most important and theoretically elaborated contributions to this approach, however, are delivered by Giandomenico Majone (1998) and Andrew Moravcsik (2002).
The starting point of this approach is that with regard to assessing EU legitimacy, we are still at the stage of standard-setting and not at the stage of standard-using (Majone, 1998: 6). In other words: we have to agree first on the standards to which we are going to compare EU’s legitimacy and
therefore we have to define what kind of regime or entity we are dealing with. The reason why so many scholars find so little agreement is that they all start from different normative premises (ibid.) – and even after almost 15 years, this still seems to be the case.
According to Majone and Moravcsik the notion of ‘democratic deficit’ occurred because the EU is compared to parliamentary forms of democracy and democratic legitimacy standards derived from national level politics. Following these standards, the most important legitimizing mechanism for democracy is the majority vote. Hence the delegation of power to non-majoritarian institutions at EU level causes a democratic deficit. Majone and Moravcsik both depart from this assumption by claiming that non-majoritarian institutions in the European Union are also legitimate, based on their results – which refers to output legitimacy.
26 Majone builds this claim on the argument that we should distinguish redistributive policies and efficiency-oriented policies. The former requires social institutions, as in a welfare state, while the latter refers to regulatory institutions, particularly with respect to economic integration. Majone’s claim is that ‘redistributive policies can be legitimated only by majoritarian means and thus cannot be delegated to institutions independent of the political process; efficiency-oriented policies, on the other hand, are basically legitimated by results, and hence may be delegated to such [non-majoritarian] institutions (Majone, 1998: 28). Given the fact that Majone considers the EU to be compatible with a ‘regulatory model’, the absence of majoritarian institutions will not lead to legitimacy problems. Paradoxically, the democratic deficit is democratically justified by the reluctance of member states to proceed with political integration and redistributive policies. The key issue for theory of democracy in the EU is to decide which tasks might be ‘legitimately delegated to institutions insulated from the political process’ (Majone, 1998: 5).
Moravcsik also seems to legitimatize non-majoritarian institutions by the claim that some policy areas should be protected from political contestation. This claim is built on the assumption that EU legislative and regulatory activity lack salience in citizens’ minds. Therefore, enhancing political participation with regard to these activities is not useful. First of all, citizens are unable to contribute to these policy areas and second, greater participation will neither create greater popular support nor generate a deeper sense of political community (Moravcsik, 2002: 615-616). The notion of democratic deficit is refuted by Moravcsik’s argument that the institutions of the EU are tightly constrained by checks and balances. Concerns about ‘arbitrary rule by national and supranational technocrats -
‘bureaucratic despotism’ by a ‘superstate’ in Brussels’ (ibid: 606) are therefore unfounded, because the classic justification of democracy, checking and channelling the ‘arbitrary and potentially corrupt power of the state’ (ibid: 606) is met.
In conclusion, we might say that the ‘new standards’-approach first requires an answer to the question what kind of EU regime or government we pursue. Only second, we can search for new forms of legitimacy and appropriate democratic mechanisms. At this point, Rosanvallon’s ideas can be brought into the debate. The next section will give an explanation of how his theory fits the issues discussed above and how his theory elaborates these arguments and claims.
27 In the sections above, a distinction is made between different forms of legitimacy: democratic input, process-oriented throughput and performance-oriented output. From this explanation followed that, in particular, a lack of input and/or throughput legitimacy led to the confirmation of a democratic deficit at EU level. In addition, the previous sections gave an overview of different arguments used in the discussion of the democratic deficit and the arguments were categorized as either constructive/social or as institutional. By constructing the debate on EU democratic deficit and legitimacy in this way, it is easier to recognize different positions and to categorize them. An attempt was made to raise the discussion to a more abstract level. The reason for this is that this section will try to locate the position of Rosanvallon in the debate on EU’s democratic deficit and legitimacy issues. As already observed, Rosanvallon can be quite abstract and, in addition, he did not apply his theoretical findings to a government at supranational level such as the EU. Therefore a one-to-one comparison between the analyses discussed above and Rosanvallon’s theory is not possible. By approaching the issue from a theoretical framework it might be easier to identify the differences and similarities.
3.4a Three forms of legitimacy: applicable to EU level?
Rosanvallon distinguishes three pillars underpinning a mixed modern regime – the modern form of democracy. Beside the electoral-representative and the counter-democratic pillars, the third involves the development of a political system whose structure is visible and comprehensible and which is defined by ‘principles of justice, arbitration between interest of various groups, delineation of the relationship between public and private’ (Rosanvallon, 2008: 291). It seems that here might be the place for non-majoritarian institutions that enjoy legitimacy in one of the three forms that Rosanvallon describes: impartiality, reflexivity and proximity.
Legitimacy of impartiality is comparable to output legitimacy, in the way that legitimate bodies in this sense – independent regulatory agencies or oversight bodies – are valuable through the
importance of the service they render. It is a functional type of legitimacy, comparable to the performance-orientation of output legitimacy. We have seen, however, in the previous sections that output legitimacy has been considered as not sufficient for legitimizing EU policy-making or institutions, because the performance should also be accomplished in a legitimate way. Only then is the performance valuable and acceptable. It seems that Rosanvallon does not agree with this. According to him, legitimacy of impartiality is democratically valuable because it is responsive to citizens’ demands in a way that can be assessed as fair, equal and pluralistic. Moreover, he calls it
28 democratically representative in a pragmatic way (Rosanvallon, 2011: 120). Where most scholars only assign value to output legitimacy in terms of effectiveness, Rosanvallon acknowledges in this respect the importance of service and responsiveness, which make the politics of impartiality an important aspect of democracy. A point of discussion though is whether or not citizens are able to assess the virtues of this form of legitimacy in the same way as Rosanvallon does.
Legitimacy of reflexivity refers in a sense to the elements of throughput legitimacy: accountability, transparency and efficacy of institutions and policy makers. Mechanisms to ensure reflexive legitimacy, however, go one step further because they are not simply mechanisms, but institutionalized in for example constitutional courts. The role of reflexive legitimate institutions is to ensure that policy makers remain engaged with the will of the people, not only at time of elections, but also when they have the mandate to govern. Responsibility is at stake here. In addition, reflexive institutions are valuable because of the fact that they are concerned with the general principles of democracy, more than elected politicians might be, which have to respond to short-term politics. In some way, legitimacy of reflexivity adds something to throughput legitimacy: institutions that ensure the fulfilment of criteria such as transparency and accountability. Otherwise, how is it possible to ensure or control these issues? On the other hand, institutions enjoying reflexive legitimacy are non-democratically appointed. This might be a problem in terms of democratic input, but Rosanvallon has also an answer to that question. He uses an argument here that is not very often used overtly in the debate on EU legitimacy or democratic deficit. He strongly asserts that reflexivity has no need for democratic election or partisan orientation. There is only a need for capacity and therefore
depoliticization is desirable (Rosanvallon, 2011: 163). Again, the question is whether or not citizens would agree with this claim. However, it might be useful to think of some institutions or mechanisms which are able to control or ensure the elements of throughput legitimacy.
The last form of legitimacy by Rosanvallon builds on proximity. It refers to all attempts to create a relationship between citizens and leaders in another way than representation through election. Proximity here means presence, attention and empathy; it requires a specific form of political
responsiveness, but also a specific form of citizen participation, because it also refers to public opinion surveys, forums and committees. The important point is that every citizen should have a feeling of equal opportunity to participate and of being heard by political actors. Proximity therefore also
concerns particularity. This approach can be grouped under what is called input legitimacy and can be related to issues concerning the existence of an EU political community and EU public sphere. It
