Moravcsik - Is There a Democratic Deficit in World Politics

7/28/2019 Moravcsik - Is There a Democratic Deficit in World Politics

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1 For exceptions, see Fritz Scharpf, Cri sis and Choice in European Social Democracy,

Ithaca, NY Cornell University Press, 1999; Giandomenico Majone, Regulat ing Europe,

Lond on, Routledge, 1996; and Gian domen ico Majone, Europes Democratic Defi cit,

European Law Journal, 4: 1 (1998), pp. .2 Robert D ahl, Can Intern ational O rgan izations Be D emocratic? A Skeptics View,

in Ian Shapiro an d Ca siano H acker-Cord on (ed s), Democracys Edges, Cam br idge,

Cambridge University Press, 1999, pp. 1936.

Andrew Moravcsik

Is there a Democratic Deficit in WorldPolitics? A Framework for Analysis

IS GLOBAL GOVERNANCE THE STRUCTURE OF INTERNATIONAL

institutions democratically legitimate, or does it suffer from a

demo cratic defi cit? This is emerging as one of th e central q uestions

perhaps thecentral question in contemporary world politics.

Whatever their underlying motivations, critics these days ranging

from th e extreme right to th e extreme left, and at a lmost every point

in between, couch criticisms of globalization in democratic rhetoric.

There is a consensus an swer to th is question , among scholars and

among commentators, politicians and the general public, namely

that international organizations are normatively suspect. Those who

invoke democratic ideals to assess international organizations con-sistent ly con clude tha t they suffer from a severe democra tic defi cit.

On e is ha rd-pressed to think of a sing le application o f demo cratic

standards to an international organization whether the European

U nion, th e Interna tional Monetar y Fund (IMF), th e World Trade

Organization (WTO), or even the United Nations that does not

conclude with a serious criticism of the organization. Most such

judgements are so uneq uivocal that authors devote mo st of their time

to proposals for solutions.1

The reason s seem obvious. In tern ation al orga nization s encompa sslarge geographical domains. Robert Dahl maintains that interna-

tional organizations are therefore inherently unable to support

direct democratic deliberation a nd decision.2 They characteristically

Go vernment a nd O pposition Ltd 2004Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 MainStreet, Malden, MA 02148, USA.

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These are corrected proofs for an article which has appeared in

GOVERNMENT AND OPPOSITION 39:2 (April 2004), pp. 336-363.


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2 GOVERNMENT AND OPPOSITION

lack what fully developed institutions for direct electoral or interest

group accountability as national political systems provide. Thus,

as David Held argues, Systematizing the provision of global public

goods requires not just building on existing forms of multilateral

institutions, but also o n extend ing an d d eveloping them in order to

address questions of transparency, accountability and democracy. 3

My central contention in this article is that an assessment of the

democra tic legitimacy of a real-world interna tional institution is as

much social scientifi c as philosophical. If such a n assessment is no t

to be an exercise in utopian thinking, th en intern ationa l institutionsshould not be compared to ideal democratic systems. Instead we

must ask whether they approximate the real world democracy

generally achieved by existing advanced democracies, which face

constraints of limited public information and interest, regulatory

capture, the credibility of commitments, and bounded consensus.

Any democratic metric derived from ideal theory must therefore be

calibrated in order to assess whether the curren t ar rangements are

the best tha t are feasible under real-world circumstances. On e

essential stan da rd for evaluating ho w a moder n con stitutional systemshould deal with these imperfections is a comparative empirical

analysis of the general practice of modern advanced industrial

democracies an d th e specifi c cond itions prevailing in this case.

Where interna tional orga nization s per form about as well as the exist-

ing, generally legitimate, national systems they (partially) supplant,

they should receive the benefit of the doubt. If we adopt these rea-

sonable normative and empirical criteria for evaluating democracy,

moreover, it is unclear tha t intern ation al institutions lack democra tic

legitimacy, as most ana lysts assume. Someinternational organizations

may suffer from a democratic defi cit, but it is by no means obvious

that ma ny do and to demon strate the contrar y requires more and

different empirical an alysis than has heretofore been con ducted.

By way of illustra tion , I con sider th e case of the world s most ambi-

tious system of pooling sovereignty under an international institu-

tion, namely the European Union. It is widely considered to suffer

from a demo cratic defi cit, the redressing of which was the primar y

purpose for calling the on going constitutional convention and nego-

tiation. I consider four philosophical conceptions of democracy on

which such a critique of the EU has been grounded respectively,

Government and Opposition Ltd 2004

3 See the paper by David Held in this volume.

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libertarian, pluralist, social democratic and deliberative democracy

and present empirical evidence to suggest th at in each case the EU s

democratic credentials are well within the norm of a dvanced indus-

trial democracies. Though centralized electoral control and collec-

tive deliberation remain relatively weak and diffuse, constitutional

and material restrictions on the EUs mandate, inter-institutional

checks and balances, indirect democratic control via national gov-

ernments, and the modest but increasing powers of the European

Parliament are more th an suffi cient to assure that in most of wha t it

does, EU policy-making is genera lly clean, t ran sparent, effective an dpolitically responsive to the demands of Europeans. The near con-

sensual criticism of European integration as democratically illegiti-

mate is thus unwarran ted. I conclude by generalizing th e theoretical

framework in future work, but cautioning against the overhasty

generalization of its optimistic empirical conclusion in the case of

Europe.

ASSESSING TRANSNATIO NAL D EMO CRATIC LEG ITIMACY:A GENERAL FRAMEWORK

Any assessment o f th e democratic legitimacy of rea l existing institu-

tions, and thus any proposal to improve that legitimacy, must meet

two criteria, one philosophical and one pragmatic. It must be philo-

sophical ly coherentand pragmatically viable. Let us consider each in turn .

Phi losophical Coherence

Any criticism of real-world democra tic legitimacy, o r propo sal fo r its

enha ncement, must be phi losophical ly coherent. This mea ns tha t it must

be based on a fundamenta l normative conception of democracy that

is both coherent and generally applicable. A philosophically coher-

ent conception o f democracy contributes to the justifi cation of a par-

ticular real-world democratic form of government by recommending

a mix of fundamental values liberty, equality, solidarity that the

system is justifi ed in promoting. Most con tribution s to o ngoing dis-

cussions of the democratic legitimacy of interna tional o rgan izationsdraw on one or more of four traditions: libertarian, pluralist, social

democratic and deliberative.

IS TH ERE A DEMO CRATIC DEFICIT IN WORLD PO LITICS? 3

Go vernment a nd Opposition Ltd 2004

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The libertarianconception of constitutional democracy views a

democratic political order primarily as a means to protect individual

liberties against the potentially arbitrary, corrupt and tyrannical

power of the moder n state. This is the classical libera l justifi cation

for democratic rights, dating back to John Locke and others in

early modern Europe, as a means to assure limited government.

Of course most democratic political theorists are libertarians to the

extent they accept that a ban aga inst certain a ctions such a s torture,

genocide, deprivation of liberty without due process, the basic laws

of war, for example ought to be enforced, even when such actions arefavoured by a legitimate democratic majority and would not endan-

ger the future stability of the political system.4 Agreement that

majorities can no t violate basic rights is widely viewed as par t o f a pre-

commitment prior to the launching of democratic politics, which

sho uld be en forced even against the perceived interests of a t ran sient

majority. More extreme libertarian conceptions of democracy more

emphatically privilege liberty over equality. Such theorists maintain

that certain individual rights, such as the negative rights to prop-

erty and security, sho uld be enfo rced strictly, even a gainst ma joritar-ian demands for redistribution or claims for the recognition of a

broader set of positive rights like a minimum standard of welfare. 5

They tend to d istrust the motives of go vern ment offi cials, who m they

view as arbitrar y an d medd lesome at best an d self-interested or

corr upt at worst. To judge by popular rhetoric, one or an other form

of this critique forms the basis for widespread complaint against

interna tional institutions and th eir offi cials, who are often po rtrayed

as excessively, albeit technocratically, self-serving. Others criticize

interna tional institutions as insuffi ciently attentive to existing ind i-

vidual or local interests and values. The purest form of this critique

is foun d a mong Anglo-American con servatives, who po rtray interna -

tional institutions as the star t of liberal and socialist regulation of the

economy.6


4 Though even so persistent questions arise as to how rigidly human rights should

be m aintained in th e fa ce of overwhelming widely-acknowledged threats.5 For a critique that these cannot be so strictly separated, see Cass Sunstein and

Stephen Holmes, The Cost of Rights: Why Liberty Depends on Taxes, New York, Norton,

2000.6 Jeremy Rabkin, Why Sovereignty Matters, Washingt on , DC , AEI P ress, 1998. For a

critique, see Andrew Moravcsik, Conservative Idealism and International Institu-

tions, Chicago Journal of International Law, (2000), pp. 291-314 .

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The pluralistconception of democracy equates it with the direct

formal accountability of d ecision-makers to electora l incentives an d

sanctions. Systems are democratically legitimate to the extent that

they afford active individuals a m eaningful an d eq ual oppo rtunity to

infl uence policy outcomes. On this ground Robert D ah l expresses

pessimism about international organizations, which he views as

inherently unable to support democratic politics by virtue of their

large scale and distance from the electorate. Existing institutions

for direct electoral or interest group accountability, in his view, are

absent from international organizations.7 Dahl writes:My argument is simple and straightforward. In d emocratic countries . . . it isno toriously diffi cult for citizens to exercise direct control over many key deci-sions on foreign affa irs. Wha t ground s do we ha ve for th inking, th en, th atcitizens in different countries engaged in international systems can everattain th e degree of infl uence and control over decisions that they now exer-cise within their own countries?8

Da hl is similarly critical o f large-scale do mestic systems, such a s the

U S system o f q uasi-majorita rian checks an d balances, particularly in

regard to federalism, the electoral college, and the Supreme Court,

which ten d to act in a counter-majoritarian fashion. 9

In recent years a number of conservative scholars, often called

sovereigntists, have justifi ed American no n-ad heren ce and n on -

compliance with regard to internationa l law on the groun d tha t each

democratic government ought to be able to defend its own sover-

eignty and independence. This, it is argued, because a single gov-

ernment can be and generally is more attentive to democratic

values and popular sovereignty than are international organiza-

tions. Such views have been voiced primarily by scholars associated

with think tanks like the American Enterprise Institute, such asJeremy Rabkin and John Bolton.10 Recently Jed Rubenfeld, a more

libera l constitution al lawyer at Yale, has gon e one better than the

sovereigntists, arguing that the US is entitled to engage in excep-

tional behaviour in this regard because of wha t he portrays as a more

political and populist conception of constitutional law, as compared



7 Dahl, Can International Organization be Democratic?, op. cit.8 Ibid., p. 23.9 Ibid.

10 For the conservative variant of sovereigntism associated with AEI, see Rabkin,

Why Sovreignty Matters, op. cit., and the special issue of Chicago Journal of Internat ional

Law(Autumn 2000).

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to more rigidly legalist and authoritarian models prevalent in

Europe.11 Some Europeans with considerably more evidence on

their side might argue that European systems, with their coalition

governments and broader range of social democratic options, con-

sistently generate outcomes tha t a re more broa dly acceptable, in th e

sense of being closer to the median opinion in most ad vanced indus-

trial societies.12 This brings us to the next critique.

The social democraticcon ception of d emocracy views political insti-

tutions as a means to offset the n atural power of con centrated wealth

that accrues in capitalist economies.13 While libertarians prize libertyover eq uality, social democra ts espouse th e opposite. Following Karl

Polanyi and other social democratic theorists, for example, Fritz

Scharpf argues that the most important element in a democratic

polity is to maintain the balance between market liberalization and

social protection. In this view, international institutions lack demo-

cratic legitimacy to the exten t that th ey bias policy-making in a neo-

liberal direction and fail to promote th e necessar y social protection

to of fset the expansion o f markets and th e concentra tion of wealth.14

International institutions tend to incorporate this bias, so the argu-ment go es, in two ways. O ne is simply by giving rich co untries more

voting po wer than poorer countries, as has been cha rged with respect

to interna tional fi nancial institutions.15 The o ther is by restrictin g the

agenda. While many domestic systems provide equal opportunities

to legislate market-prom oting policies and redistributive policies,

international institutions (singly and collectively) do not. The

strongest and most established among international institutions, in

this view, tend to be focused on trade liberalization (WTO, NAFTA,


11 For a libera l echo, see Jed Ruben feld, The Two World Orders, Wilson Quarterly,

27 (2003), pp. 2236. The notion that the US is, overall, a more democratic country

than most European, in the sense of being more committed to strict popular sover-

eignty is a curious one. For a cr itique, see And rew Moravcsik, The P ara dox of U S Un i-

lateralism in Human Rights, in Michael Ignatieff (ed.), Ameri can Exceptional ism and

Human Rights, P rinceton, P rinceton U niversity Press, for thcoming, pp. n ot yet available.12 Dahl, Can International Organization be Democratic?, op. cit.13 Charles E. Lindblom, Politi cs and Markets: The Worlds Poli ti cal-Economic Systems,

New York, Ba sic Books, 1977.14 Yet they need no t be so. Many libertarians believe tha t policy in th e EU, a s well

as in Europe as a whole, is biased in a social democratic direction. For example, see

Rabkin, Why Sovreignty Matters, op. cit.15 See the paper by David Held in this volume.

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EU), creditor rights (IMF), an d pro-business regulation (EU ). Social

welfare provision is relegated to na tional govern ments. This division

of labour undermines domestic redistribution and regulatory pro-

tection, so it is argued, because it triggers a race to the bottom, in

which the competitive market pressures of external liberalization

undermine uncoordinated domestic policies. While libertarians

criticize the international organizations for doing too much, social

democrats criticize them for d oing to o little.

The deliberativeconception of democracy views political institu-

tions as a means not just to assure equal opportunities for participa-tion and representation or to offset existing biases, but as a means

to improve the po litical capacity of th e citizenr y. The a rgument h ere

is that political institutions must not only provide opportunities

for participation, but must be designed to encourage and promote

meaningful and effective participation. They must help to create

active, informed, tolerant, and engaged citizens or, at least, shape

such participation among the political representatives.16 For this

purpose, it is essential that a democratic system have not only rep-

resentative institutions, but political parties, interest groups, plenti-ful information and a common discourse. These things give politics

mean ing, engage citizens in political education , and permit the dis-

cussion a nd resolution of d isputes not just over confl icting interests

but over mora lity.17 Deliberative democrats tend to reject the entire

trend toward insulated decision-making , wheth er domestic or inter-

national. In this view, however, international institutions are partic-

ularly suspect. No ma tter how formally democra tic and inclusive they

may be, political institutions with a politically passive citizenry can

generate little mean ingful public deliberation a nd thus little demo-

cratic legitimacy. The distance and lack of intermediating social

and cultural institutions render international institutions arid; they

encourage the trend toward technocratic decision making and a

passive and perhaps disgruntled population.18



16 Amitai Etzioni, Political Unification Revisited: On Building Supranational Communities (Ne17 Amy Gutmann and Dennis Thompson, Democracy and Disagreement: Why

Moral Conflict Cannot Be Avoided in Politics, and What Should Be Done about It,

Cambridge, MA, Harvard University Press, 1996.18 Larry Siedentop, Democracy in Europe, Lon do n, Allen Lan e, Pen guin P ress, 2000;

Ph jlippe Schmitter, How to Democrati ze the European Uni on . . . And Why Bother?, Lanham,

MD, Rowman a nd L ittlefi eld. 2000.

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Pragmatic Viabi li ty

Most existing analyses of deliberative democracy draw on one or

more of these conceptions of democracy. It is not my purpose in this

article nor am I q ualifi ed to criticize them in d etail. My concern

is instead with their application to real world situations. If they are

no t to be utopian , I argue in th is section , such con crete applications

necessarily rest on a series of largely empirical judgments. These

empirical judgements require d etailed social scientifi c an alysis, which

must be placed in a com para tive perspective in order to calibra te therealistic expectations of how directly democratic a system could rea-

sonably be expected to be.

There a re two related senses in which an applied evaluation o f the

democratic legitimacy of a n interna tional institution rests on empir-

ical judgements. First, each of the fo ur idea l theories discussed a bove

rests on explicit empirical judgements about politics and society.

Libertarians stress the tendency for regulators to act for n arro w and

arbitrar y rather th an for publicly-justifi able reasons, the unbo und ed

power of international institutions, and the socialist bias of policy-making . Plura lists stress the lack of democratic constraints on policy-

making in international organizations. Social democrats stress the

neo-libera l bias in in tern ation al policy-making a nd the existence of

pressures triggering a race to the bottom. Deliberative democrats

argue tha t intern ation al institutions help create a passive, unsatisfi ed

public. Each of these empirical claims can and should be subjected

to rigorous testing before we accept the normative conclusions that

follow.

Second, each of the four ideal theories above remains a norma-

tive ideal of democracy. Each invites a comparison between inter-

national institutions and an ideal form of perfectly participatory,

egalitarian, deliberative politics. Such ideals are frankly utopian.

They are not realized anywhere today, and not even in the ancient

or Westmin ster-style systems som etimes held up as exemplars. It is

thus a trivial matter to deploy this metric to demonstrate tha t the EU,

or any other international organization, is illegitimate. This type of

ideal, isolated , an d essentia lly utopian an alysis is no t ver y helpful for

the sort of rea l-world con stitutional construction in which the EU

and other international organizations are currently engaged.On e particular d ifference between ideal an d a pplied theor y is par-

ticularly relevant here. Ideal democratic theories tend systematically


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to ignore the transaction costs of political participation. That is, they

overlook limitations on the ability and willingness of individuals to

involve themselves extensively in politics, to develop expertise, to

manage credible commitment problems and to overcome existing

differen tials in social resources. In the real world, ind ividua l citizens

suffer from a limited and unequal ability to devote time and energy

to learn ing abo ut an d engaging in po litics. In th e real world, citizens

remain ra tionally ignoran t o r no n-participator y with regard to most

issues, most of the time. Applied democratic theory must work with

individuals as they truly are inattentive, inexpert, uncertain aboutthe future and unequal not as one might wish them to be.19

One way constitution al systems cope with such imperfection s is by

insulating policy-makers and delegating to political auth orities. Such

delegation o ften refl ects a second-best solution to representing a nd

realizing widespread interests in a system where individuals cannot

be assumed to pursue consistently their own interests effectively.

Three structural circumstances in which this often occurs are of pa r-

ticular relevance to an assessment of international organizations:

social complexity, political uncertainty and differentials in socialpower.

Social complexi ty and the role of experti se. Citizens delegate to assem-

ble more effi cient decision-making in areas where exper tise is

req uired. Involvement in the full range of govern ment policies would

impose costs beyond the willingness of any modern citizen to bear.

Whether the area is environmental policy, medical drug authoriza-

tion, or criminal law, we do not expect complex medical, legal, or

technical decisions to be made by direct popular vote.

Political uncertainty and the role of rights. Citizens of democratic

societies generally favour policies that reduce the risk to any given

individual of catastrophic loss of life or liberty in an uncertain

future. Philosophically, this might be viewed as a concession to



19 Russell Ha rdin distinguishes the claims based o n the street-level epistemology

. . . of an ordinary person and those claims that meet standard epistemological cri-

teria for justifica tion. D emocracy must, he a rgues, be un derstood, a t least in par t,

from the street level. As such, it is unlikely to impose more than a crude, largely neg-

ative con straint on policy-makers. Par ticipation in majoritar ian d ecision-making,

therefore, takes place on the mar gin, rath er than being the n ecessar y characteristic

of all democratic decisions. See Russell Hardin, Democratic Epistemology and

Accountability, Social Philosophy and Policy, 17 (2000), pp. 11026.

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fundamental huma n d ignity or as a refl ection of a basic human pref-

erence for the reduction of catastrophic risk.20 Yet it is diffi cult fo r

majorities credibly to commit future majorities not to tyrannize

mino rities. To th is end , democratic systems comm on ly constra in

majority decision-making th rough established individual and group

rights that protect individual liberty, welfare and culture against not

only the arbitrary power of the state, but the potential demands of

the majority. Such r ules enfo rce a basic minimum level of eq uality in

the name of justice.21 Often insulated authorities, such as constitu-

tional cour ts, are ca lled upon to en force individual or minority pre-rogatives against majority opinion. In constitutional orders, there

thus customarily arises a tension between rights and participation. 22

This tendency has spread in recent years as increasing numbers of

governmental functions have been recognized as basic or human

rights that are judicially or administratively enforced, often at the

international level, against political authorities. For precisely this


20 There are many reasons why such a notion might be philosophically defensible.

Some simply postulate that individuals are to be a ccorded minimal natura l or hum an

rights as recogn ition o f ba sic h uman d ignity as do most post-Second World War

international human rights documents. (See, for example, Louis Henkin, Gerald L.

Neuman, D iane F. O rentlicher a nd David W. Leebron, Human Rights, New York, Foun-

dation Press, 1999.) O ne m ight postulate a n ear con sensual preference in favour o f a

reduction in the ind ividual risk of ab solute deprivation, which would then be refl ected

in an y institutiona l pre-comm itments into th e future th at individua ls must necessarily

make und er uncerta inty. (This formulation appears to be empirically more accurate,

as a description o f h uman psychology, tha n the a ssumption that individuals generally

favour a na rrowing of ineq uality.) O ne might th ink of either restriction as a refl ection

of the varying intensity of preferences, with individual preferences that can safely be

assumed to be intense (e.g., against being tortured) counting for more than prefer-ences that can be assumed to b e less so ( e.g. feeling or b eing marg inally safer from

crime or terro rism).21 If a given d ecision is of vital impor tan ce to th e long-term well-being o f tho se

involved, then it is questionable whether they have a necessary obligation to obey gov-

ern ment d ictates, even if the dem ocra tic decision-making pro cedures by which th e

dictates were generated were clear a nd fair. See Brian Bar r y, Is Democra cy Special?,

in Brian Barr y (ed.), Essays in Poli ti cal T heory, Camb ridge, Cambridge U niversity Press,

1999, pp. .22 Stephen Holmes, Benjamin Constant and the Making of Modern L iberal ism, New

Haven, Yale University Press, 1984; Fareed Zakaria, The Future of Freedom: I lliberal Democ-

racy at Home and Abroad, New York, W. W. Nor ton, 2003. Not an absolute tension ,

however. Cf. John Ely, Democracy and Distr ust: A Theory of Judicial Review, Cambridge,

MA, Harvard University Press, 1981.

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reason, many Europeans view with abhorrence the tendency, com-

mon in the US, to elect state and local judges.

Underlying differentials in social power and the role of linkage. Delegat-

ing and insulating political power can help redress biases in national

democratic representation that arise because diffuse majorities are

consistent ly und er-represented. The most commo n distortion is the

capture o f government policy by narrow but powerful interest groups

opposed to the interests of majorities with d iffuse, longer-term, less

self-conscious concerns. Con sider free trad e: even Ada m Smith an d

Richard Cobden realized tha t th e broad ly liberal interests of diffuseconsumers and fi rms would o ften be trumped b y pressure from con -

centrated groups of pro tectionist producers. Many of th e same Euro-

peans who criticize the democra tic defi cit also call for the U S to

retain fast track authority to pass trade liberalization nothing less

than empowering the US executive to act with minimal legislative

constraints. In this and other areas, the WTO and NAFTA might be

thought of as institutional complements to fast track and, in the

case of the EU, perhaps a substitute for it in that they empower

national executives to override powerful particularistic interests inthe na me of th e national (o r median) interest.

In stitut ional pre-commitmen t is, however, a po licy with limits. It

works insofar as social groups lack alternatives that are, on balance,

more attractive than withdrawal from the organization. In the real

world, however, democratic politics cannot be pushed beyond the

point where powerful, poten tially self-suffi cient groups prefer with-

drawal from collective action.23 This latter constraint is particularly

impor tan t in intern ation al politics, where th e pre-existence of com-

petent na tional governments, in m ost cases far larger an d more pow-

erful than any international organization, renders unilateralism a

more viable option than it is for an individual in domestic politics.

If democratic decision-making is pushed to fa r, the result can be th e

collapse of democracy, if no t violent con fl ict.

These three structural circumstances social complexity, political

uncertainty, and underlying differentials in social power give rise

to widespread, consistent , no rma tively justifi ed exceptions to d irect

democra tic participation in d ecision-making . In each o f these cases,

under many circumstances more insulated and delegated au thori ty of



23 Ha rdin, Democratic Epistemology and Accountability, o p. cit.

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global governance structu res might be thought of as more representative of

citizen concerns precisely because they are less directly democratic.

The ubiq uity of these non -ideal circumstan ces in po litical life, and

the tendency to employ insulated or delegated power to manage

their consequences, has important implications. Any assessment of

the democratic legitimacy of an international organization must

be based not only on a coherent philosophical analysis using ideal

democratic theory, but on an empirical evaluation of the extent

to which ideal democratic participation can best be approximated

under th e constra ints imposed by the second-best world o f the spe-cifi c case in question . This latter, empirical judgmen t, which tran s-

lates from the ideal to the real, is essentia lly social scientifi c in

nature.

This empirical translation from the ideal to real is likely to be

complex and no n-linear, such tha t the ideal policy in a best world

of perfect citizens (e.g., participation) often runs directly counter

to th e good policy in a second -best world o f concrete politics (e.g.,

delegation). While, for example, we can say with considerable con fi -

dence that an entirelyundemocratic system that is, a system thatof fers no meaningful par ticipation in decision-making a t an y level

is democratically illegitimate, the same proposition does not hold on

the margin. NOT ITAL ... In other words, there is no reason to believe that a m

in d irect par ticipation by the average citizen in majoritarian or con-

sensus decision-making , as opposed to d elegation an d insulation of

policy-makers, promotes outcomes that can be more easily justifi ed

in terms of normative and positive democratic theory.

On e way to ca librate th e stan da rds used to assess real-world dem-

ocrat ic systems is to employ comparative socia l scient ifi c analysis. In

order to assess the extent to which a given insulation or delegation

of power in an international organization is democratically legiti-

mate, we may ask whether a similar institutional adaptation is widely

accepted in existing democratic systems. Such national systems, at

least am ong th e ad vanced ind ustrial democracies, can be presumed

to be democratically legitimate in a broad sense, and thus the prac-

tices widely employed among such countries provide a meaningful

baseline for assessing the democratic legitimacy of international

organizations. For example, if domestic political systems often grant

constitutional courts and central banks a certain measure of politi-cal independence, this is one reason to believe that a similar grant

is legitimate. The an alyst can then ask whether th e essential circum-


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stan ces set forth in theories of judicial or centra l bank ind epend ence

are met. This is an essential, yet often neglected, element in any

applied evaluation of d emocratic legitimacy and offers a measure

of protection against utopian condemnation of existing political

institutions. We turn n ow to an example of th is sort of a na lysis.

APPLYING THE FRAMEWORK: THE CASE OF THE EUROPEAN UNION

Is the European Union democratically legitimate?24 It is an appro-priate moment to pose this question. The last decade has witnessed

the emergence of a stable constitutional order in Europe after a

decade of nearly continuous debate over the proper constitutional

structure for Europe. In a widely praised book, Oxford don Larry

Sieden top asks, Where are the Madisons for Euro pe?25 Yet th e more

appropriate question for those who have followed European think-

ing is: Why are there so many Madisons? 26 Hundreds, perhaps even

thousands, of scholars, commentators, lawyers, and politicians have

analysed the pro blem of European constitutionalism.These debates ha ve focused, perhaps above all, on th e question o f

whether the EU is democratically legitimate. Most politicians, schol-

arly commentators and members of the European public appear to

agree tha t the EU suffers from a severe democratic defi cit. Only one

bran ch of th e EU is directly elected: the European Parliament (EP) .

Though stronger than it once was, the EP remains only one of th ree

major actors in the EU legislative process. Its elections are decen-

tralized, apa thet ic affa irs, in which a relatively small number of voters

select among national parties on the basis of national issues. Little

discussion of European issues, let alone an ideal transnational delib-

eration, takes place. For its part, the European Commission, which

enjoys a powerful role as an agend a-setter and regulator y coord ina-

tor, is widely perceived as a technocracy. The European Court of



24 This section draws Andrew Moravcsik, Despotism in Brussels? Misreading the

European U nion, Foreign Af fairs, ( May/June 2001), pp. 603-624; and And rew Moravc-

sik, Federalism in th e European Un ion: Rhetoric and Reality, in Rob ert H owse an d

Kalypso Nicolad is (eds), The Federal Vision: Legit imacy and Levels of Governance in the US

and the EU, O xford , O xford U niversity Press, 2002, pp. 163-187.25 Siedentop Democracy in Europe., op. cit.26 Moravcsik, Despotism in Brussels?, op. cit.

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Justice, comprised of fi fteen a ppointed judges, is unusually power-

ful. Most powerful of all, the Council of Ministers brings together

national ministers, diplomatic representatives, and administrative

offi cials from member states, who often deliberate in secret. While

indirectly accountable to voters, the link is too tenuous and the

mode of interaction too diplomatic or technocratic to satisfy many

observers. These procedural qualms might be tolerable were it not

for the perceived b ias in the outputs of European policy-making .

Many view the EU as a thro w-back to th e nineteen th cen tur y a fi s-

cally weak, neo-libera l sta te. For these reasons, ma ny believe it is self-evident th at the EU is no t democratically legitimate.

My central con tention here is tha t if we adopt reasonab le criteria

for judging d emocratic governance, the widespread criticism o f the

EU as democratically illegitimate is unsupported by the existing

empirical evidence much of it provided by critics of th e democratic

defi cit. At the ver y least, their critique must be heavily q ualifi ed. Con-

sti tuti onal checks and balances, indirect democratic control via nati onal gov-

ernments and the increasing powers of the European Parliament are sufficient

to assure that the EU policy-making is, in nearly all cases, clean, transpar-ent, effecti ve, and poli ti cal ly responsive to the demands of European citi zens.

In successive sections below, I analyse the constraints inherent in

the European Constitutional Settlement that guarantee that the EU

will not become a despotic superstate, the democratic procedures

that prevent the EU from becoming an arbitrar y and unaccountable

technocracy within its domain, the legitimate reasons for shielding

certa in EU decision-makers from d irect democratic contestat ion, the

underlying social reasons why political participation in the EU

cannot be radically expanded and the extent to which EU policy-

making suf fers from an excessive neo -libera l bias. Fina l sections

consider whether these assessments are likely to change with the

enlargement of the EU, and how the analysis might be generalized.

THE LIBERTARIAN CRITIQUE: IS THE EU AN

ARBITRARY SU PERSTATE?

The classical libertarian justifi cation for democra cy, we ha ve seen, is to

check and cha nnel the arbitrar y and poten tially corr upt power of thestate. Arbitrar y rule by suprana tional technocra ts bureaucratic des-


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pot ism by a super-state in Br ussels, as one widely hera lded formula-tion has it is a widespread concern in regard to con temporary EU

politics.27 This is the stuff of British tabloid articles, often fuelled by

ignoran ce of what the EU actually does, but it un derlies much legiti-

mate con cern, par ticular by those on the libertarian right of th e polit-

ical spectrum. This concern appears to gain plausibility from the

overtly technocratic nature of much EU regulation, the open role

played by non-elected offi cials in Brussels, and the geogra phical and

cultural distance between those regulators and the a verage European

person in the street.Yet the threa t of a European superstate is a myth . To a fi rst approx-

imation, the EU does not tax, spend, implement, or coerce, and in

many areas, it does not hold a legal monopoly of public authority.

The EU s constitution al order imposes tight substantive, fi scal,

administrative, legal and procedural constraints on EU policy-

making that are embedded in treaty and legislative provisions,

which have the force of constitutional law to which we now turn.

This is not simply a snapshot judgement about the present, over-

looking the future trajector y of integration, but an assessment o f theEUs underlying institutional capacity to act in new areas and new

ways.

Substanti ve constraints. The EU s curren t activities are restricted by

treaty and practice to a modest subset of the substantive activities

pursued by modern states. The core of EU activity and its strongest

constitutional prerogatives still lie almost exclusively in the area of

trade in goo ds and services, the movement o f factors of prod uction,

the production of and trade in agricultural commodities, exchange

rates and mon etar y policy, foreign a id and trade-related environ-

mental, consumer and competition po licy. Much is thereby excluded:

taxa tion a nd the setting o f fi scal priorities, social welfare provision,

defence and police powers, education policy, cultural policy, non-

economic civil litigation, direct cultural promotion and regulation,

the funding of civilian infrastructure, and most other regulatory

policies unrelated to cross-border economic act ivity. Certa inly, th e

EU has made modest inroads into many of these areas, but largely



27 Siedentop Democracy in Europe., op. cit.; cf. Moravcsik, Despotism in Brussels?,

op. cit.

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in limited a reas directly related to cross-border fl ows.28 The result

is that the EU has been, overall, strongly liberal in its impact on

European policy-making , which ma kes the virulent opposition by

some righ t-wing liberta rians somewhat puzzling.29

Fiscal Constraints. It is no t coincidental tha t the po licies absent from

the EUs policy portfo lio no tab ly social welfare provision, d efence,

education, culture and infrastructure require high government

expend iture. The ab ility to tax an d spend is what most strikingly dis-

tinguishes the modern European state from its predecessors, yet the

EUs ability to tax is capped at about 23 per cent of national andlocal government spending ( 1.3 per cent of G DP ) a nd is unlikely to

cha nge soon. Fiscal constraints have decisive consequences. There is

little mon ey for d iscretionar y funding by Brussels techn ocra ts, which

limits their arbitrar y power as well as the prospect of corr uption . The

EU is destined to remain what Giandomenico Majone has termed a

regulatory polity.30

Administrat ive Constrai nts. Ana lysts often o bserve that th e essentia l

politics of regulation lie in implementation, yet the EU implements

very few of its own regulation s. How could it be oth erwise, given th eextraordinarily small size of the Brussels bureaucracy? The EU

employs fewer people than a m od est European city. They tota l about

on e-fort ieth of the number of compara ble civilian fed eral employees

even in th e United Sta tes, a jurisdiction of com parable size but noted

in cross-national perspective for the small size of its national gov-

ernment workforce. Except in a few areas the ta sk of legally or admin-

istratively implementing EU regulations falls instead to national

parliaments and administrations. The EU has no police, military

force, or signifi can t investigato r y capa city an d no rea listic prospect

of obtaining any of these.


28 The scholarly literature on European integration seems to pay disproportionate

attention to exceptional cases of spillover in cases such as gender discrimination, the

initial experience with environmenta l policy and structural fun ding, the jurisprud ence

of supremacy and direct effect, the Commissions use of Article 90, and the possible,

but as yet undocumented, effects of the Open Method of Coordination. These are

important trends, but atypical of the EU as a whole.29 One suspects a measure of ideology or opportunism. See Andrew Moravcsik,

A Tor y Referendum , Prospect, (July 2003) pp . 1617.30 Majone, Regulat ing Europe, op. cit.; and Majone, Europes Democratic Deficit,

op. cit.

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Procedural Constraints. Its lack of con stitutiona l man da te, fi scal dis-

cretion and administrative clout would be of less consequence if the

EU technocracy could act unhampered by procedural constraints.

Yet EU policy-making is constra ined by institut ional checks an d bal-

an ces, no tab ly the separa tion of powers, a multi-level structure o f

decision-making , an d a plural execut ive.31 The most fundamental

constraint lies in the requirement of unanimity for amendment of

the Treaty of Rome, followed by electoral, parliamentary, or admin-

istrative ratifi cation a high standa rd for a ny fundamental act of sub-

stantive redirection or institutional delegation. Even everyday EUdirectives must be promulgated under rules that require the con-

curren t suppo rt of between 70 an d 100 per cent o f the weighted votes

of territorial representatives in the Council of Ministers a level of

support higher than that required for legislation in any existing

na tional polity or, indeed, to a mend nearly any na tional constitution .

Add to th is tha t the Commission must propo se, the P arliament must

consent, if challenged, the C ourt m ust appro ve, national parliaments

or officials must transpose into national law, and national bureau-

cracies must implement. EU decision-making is consensus decision-making.

These myriad institutional constraints not only not only render arbi-

trary and capricious action almost impossible, but assure that legis-

lation out of Brussels is likely to represent an exceptionally broad

consensus amon g d ifferent groups at man y levels of go vernan ce. This

should give us reason for con fi dence th at it legislates in the broa d

public interest. And because th e limitation s on substantive activities

are groun ded in th e very constitutional structure of the EU, no ne of

this is likely to change soon.

THE PLURALIST CRITIQUE: IS THE EU AN

UNACCOUNTABLE TECHNOCRACY?

The pluralistconception of democracy stresses the direct accounta-

bility of govern ing o ffi cials to public preferences, as expressed



31 Such institutiona l procedures are the con ventional too l for protecting th e inter-

ests of vital minorities a design feature generally thought to be most appropriate to

polities, like the EU, designed to a ccommod ate h eterogeneous cultural an d substan-

tive interests, See Arend Lijphart, Democracies: Patterns of Majori tar ian and Consensus

Government in 22 Coun tries, New Haven, Yale University Press, 1990.

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through elections. Dahl has criticized th e EU as being an elite-driven

project tha t does no t deserve to be called democra tic. He notes: To

ensure public debate, it would be n ecessar y to create an internat ional

equivalent to na tional po litical competition by parties and individu-

als seeking of fi ce.32 This is impossible in the EU because of large

scope, as well as varied and diffuse national interests.

Yet the insulation of the EU from m echanisms to assure demo-

cratic accountability is easily exaggerated, particularly by those

who ten d to overlook the multi-level constraints embed ded in the

European constitutional o rder, arising from democratic contro l overna tional governments, as well as the powers of th e EP. Where n either

sort of constraint is directly imposed as where power is delegated

to a Europea n-level con stitutional court , centra l bank or oth er semi-

autonomous authorities the structure of the EU is entirely con-

sistent with the late twentieth-centur y practice of most ad van ced

industrial democracies.

Direct Democrati c Accountabili ty

For over a decade, the EP has been progressively usurping the role

of the Commission as the primar y agend a-setter vis--vis the Council

in the EU legislative process. It is now the EP that, late in the leg-

islative process, accepts, rejects or amends legislation in a manner

more diffi cult for the Council to reject than to accept a preroga-

tive traditionally accorded to the Commission. The EP is directly

elected, generally by proportional representation within nation-

states, and often acts independently of ruling national parties.

Whereas one might criticize the desultory participation and the

absence of clear programmatic discourse in European elections,

the EP no neth eless ha s an effective system of par ty cooperation , with

votes most often splitting along party lines and in which recogniza-

ble ideological cleavages sha pe voting pa ttern s. Among the most rel-

evant difference between the European Parliament and national

parliaments appears to be the tend ency of the EP to reach decisions

by large ma jorities. Yet th is tend ency und erscores the ten den cy of the

EU to reach decisions by consensus unsurprising given the high

level of support required in the Council of Ministers and should


32 Dahl, Can International Organization be Democratic?, op. cit.

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give us reason for con fi dence th at it is legislating in th e European

interest.33

Indirect Democratic Accountabil i ty

If European elections were the only form of democratic accounta-

bility to which the EU were subject, scepticism might be warranted.

Yet a mo re impor tan t chann el lies in the demo crat ically elected gov-

ernments of the member states, whose direct diplomatic representa-tives dominate the still largely territorial and intergovernmental

structure of the EU. In the European Council, which is consolidat-

ing its position as the EUs dominant institution, elected heads of

state and government wield power directly.34 In the Council of Min-

isters, which more often than n ot imposes the bind ing constraint on

everyday EU legislation, permanent representatives, ministerial

offi cials and the m inisters themselves from each countr y act und er

constant instruction from national executives, just as they would at

home. The bonds of accountability are tight: National representa-tives can be reca lled o r re-instructed at will, often m ore ea sily than

parliamentarians in national systems. In addition, national parlia-

ments consider and comment on man y EU po licies, though th eir de

factoability to infl uence po licy fl uctua tes greatly by coun tr y.

The multi-stage legislative process, whereby legislation must tra-

verse the Commission, Council, Parliament and domestic imple-

menting authorities, encourages high ly tran sparent po licy-making.

In contrast to the widespread vision of a cadre of secretive gnomes

burrowing away in Br ussels, supra na tional offi cials in fact work under

intense public scrutiny. The legislative process works slowly, without

any equivalent to ruling by executive decree or pushing legislation

swiftly through a friendly parliament, and information appears as

plentiful about the EU political and regulator y process, at least at the

Br ussels level, tha n about similar processes in nearly all of its member

states. With 20 commissioners and their staffs, fi fteen na tional



33 Simon H ix, Abdul Noury and Gerard Roland, Normal Parliament? Party

Cohesion and Competition in the European Parliament, 19792001, paper presented

at the Public Choice Society conference, San Diego, 213 March 2002.34 Peter Ludlow, The Laeken Counci l, Br ussels, Intercomm unity, 2002.

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delegations, over 600 parliamentarians, hundreds of national minis-

ters and tho usands of na tional offi cials, ex anteparliamentar y scrutiny

in some countries and ex postparliamentary scrutiny in nearly all,

combined with the subsequent need for domestic administrative

implementation , there can be no such thing as a monopoly of infor-

mation in the EU. Whereas it is true that certain aspects of the

system, such as early discussions in the lower levels of COREPER,

tend to take place in relative secret, the same might be said of the de

factopreparation of legislation in national systems. Recent research

seems to reveal that the EU regulator y processes are as open to inputfrom civil society, and as constrained by the need to give reasons, as

the (relat ively open ) systems of Switzerland an d the U S. Discussions

within the comitologieappear to take due account of public interest

considerations, though the precise reasons for this socialization,

insulated expert discussion, external pressure of member states,

structured deliberation, an ticipated non-compliance rema in

unclear.35

The Legitimacy of Semi-Autonomous Judges and Technocrats

It might be ob jected tha t, as compared to n ationa l systems, a g reater

propor tion of EU decisions are mad e by autonom ous techno crats in

the Commission, constitutional court judges, or central bankers.

These appoin ted of fi cials resolve essentially political questions involv-

ing th e appor tionment of costs, benefi ts and risks. Yet little is in fact

distinctive about the patter n of d elegation we observe in the EU . The

late twentieth century was a period of the decline of parliaments

and the rise of courts, public administrations and the core execu-

tive. Accountability is imposed, increasingly not through direct par-

ticipation in majoritarian decision-making but instead th rough

complex systems of indirect representation, selection of representa-


35 Ch ristian Joerges and E. Vos (eds), EU Committees: Social Regulati on, Law and Pol-

itics, Oxford , Ha rt Publishing, 1999; Majone, Europes Democratic Deficit, op. cit

Tho mas D. Zweifel, D emocra tic Defi cits in Com par ison : Best (and Worst) Pra ctices

in European, US and Swiss Merger Regulation, Journal of Common Market Studi es, 41

(2003), pp. 54166. Also see P ierpao lo Settemb ri, Tran sparency of the EU legislator ,

unpublished paper, U niversity of Florence, 2003.

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tives, professional socialization, ex postreview, and balances between

branches of government.36

The critical point for the study of the EU is th is: Within the multi-

level governan ce system prevailing in Euro pe, EU offi cials (or

insulated national representatives) enjoy the greatest autonomy in

precisely those areas central banking, constitutional adjudication,

criminal and civil prosecution, technical administration and eco-

nom ic diplomacy in which man y advanced ind ustrial democracies,

including most member states of th e EU, insulate from direct polit-

ical contestation. The apparentl y undemocrati c nature of the EU as awhole is largely a functi on of this selecti on effect. As we have seen, insula-

tion is not simply an empirical observation; it has normative weight.

G iven such justifi cation s, the burden of pro of rests on critics of th e

EU. We may debate wheth er the EU s centra l bank, constitutiona l

court, or competition authorities are properly constructed, but any

such criticism must fi rst concede the legitimacy an d general accept-

ability of a greater measure of insulation a nd auton omy in precisely

these areas than elsewhere in political life.

TH E SOCIAL DEMOCRATIC CRITIQU E: DO ES TH E EU IMPO SE A

NEO-LIBERAL BIAS?

The social democraticconception of democracy stresses the role of

political institutions in offsetting social inequality. Fritz Scharpf has

argued that most Europeans favour maintaining current levels of

welfare spend ing, as demon strated by the decentralized tenden cy of

member states to spend increasing percentages of GNP on welfare

as per capita income increases.37 Yet the status quo ca nnot be main-

tained today because of the tendency of decentralized market com-

petition to generate an interstate race to the bottom in regulatory

protection. Trade, immigration and especially foreign investment

and capital fl ows create strong incentives for countries to red uce



36 Majone, Regulat ing Europe, op. cit.37 Scharpf, Cri sis and Choice in European Social Democracy, op. cit. For a mo re detailed

discussion of Scharpf, from both positive and normative perspectives, see Andrew

Moravcsik and Andrea Sangiovanni, On Democracy and Public Interest i n the Europe Un ion,

Cen ter for European Stud ies Working Pa per Series, Camb ridge, MA, Ha r vard

University, forthcoming.

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welfare expenditures. The EU cannot respond effectively to this ten-

dency, despite over whelming support for th e ma intenan ce of welfare

systems, because of a neo-liberal bias in th e constitutiona l structure

of the EU, and the rhetoric that surrounds it, which favours market

liberalization (negative integration) over social protection (posi-

tive integration) .

In this view, the EU lacks democratic legitimacy not so much

because it stifl es political par ticipation , but because its policies are

biased against particular interests that are consensually recognized

as legitimate. Such accounts tend to be social democratic, that is, theytend to argue th at the EU systematically biases policy-making in a

neo-libera l d irection.38 It does this, so the argument goes, by exclud-

ing particular issues, in particular social welfare and some public

interest regulation, from the a genda, while facilitating commo n lib-

eralization of trade and factor flows. The entire arrangement is

locked in by the European legal order. Opposition does not form,

because it is kept off the a genda by the European constitutiona l com-

promise, which leaves social welfare provision to the national gov-

ernments, and by the ignorance of less fortunate individuals andgroups about their own interests. Scharpfs argument is without a

doubt the most empirically and theoretically nuanced social demo-

cratic criticism o f the EU democratic defi cit tha t curren tly exists.

Yet there is good reason to qualify his formulation o f the argum ent,

abo ve all since these q ualifi cations are acknowledged in Scharpf s

own empirical a na lysis.

There is in fact little evidence of a race to the bottom. Scharpf

himself concludes ultimately that there can be such a race in only a

few areas, there is relatively little evidence that it has yet occurred,

and the effects have been limited. The level of social welfare provi-

sion in Europe remains relatively stable. National welfare systems are

no longer mo ving strongly in the direction of grea ter redistribution ,

but th ey are not imploding either. Recent O ECD a na lyses report th at

fi scal con solida tion over the past 20 years has almost a lways led to

increases in government revenues as a percentage of GNP, and in

most cases the burden of consolidation is placed primarily on

revenue increases.


38 Yet they need no t be so. Many libertarians believe tha t policy in th e EU, a s well

as in Europe as a whole, is biased in a social democratic direction. For example, see

Rabkin, Why Sovereignty Matters, op. cit.

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Much recen t research, moreover, suggests tha t the ad verse impact

of globalization of standards on the major areas of social spending

in Europe (pensions, medical care, and labour market policy) is

easily exaggerated. The most important factors behind increasing

social spending are instead d omestic: the shift to a post-industrial

economy, lower pro ductivity growth, shifting deman d for less skilled

workers, rising costs of h ealth care, pen sions and employment, exac-

erbated by increasingly unfavourable demographic trends. These

facto rs fuel welfare defi cits an d fi scal stra ins, yet an y reform is

opposed by entrenched constituencies (the elder ly, medical-carecon sumers, an d th e full-time un employed) well-placed to resist it. No

responsible analyst believes that current individual social welfare

entitlements can be ma intained in the face o f these structural shifts,

regardless of h ow they are structured and h ow they interact with the

globa l economy. In this context, th e neo-liberal bias of th e EU, if it

exists, may well be partia lly justifi ed by the socia l welfar ist bias of

current na tional po licies, an d marg inal pressure towards consolida-

tion of national welfare systems should be considered a benefit not

a threat.Certainly there is little evidence that the EU is driving social pro-

tection downwards. By contrast, the EU has often permitted high

standards and supportive institutional reform, and thus has tended

to re-regulate at a h igh level.39 Anecdotal evidence suggests that the

EU is respon sive to pub lic and interest group con cerns in a way quite

similar to national polities.40 For reasons set out by Scharpf, there is

far less reason for a social democrat to fear the piecemeal evolution

of European law than might ha ve been the case fi ve years ago. 41 What-

ever consequences there may be lie largely in the future. The major

difference between apparently intractable issues of EU discussion

such as social and tax harmonization, and similar issues where

European regulation is effective, such as worker health and safety,

appears not to lie in constitutional structure but in th e precise na ture



39 Da vid Vogel, Trading Up, Cambridge, MA, Harvard University Press, 1995;

Joerg es and Vos, EU Committees, op. cit.40 The life-cycle of an issue like Mad Cow Disease is just as it would be in a ny

Western dem ocra cy: Some burea ucracies are cap tured ; a crisis emerges; and refor ms

are put in place that lay greater emphasis on the broad er public interest. Joerges and

Vos 1999.41 Also Scharpf, Cri sis and Choice in European Social Democracy, op. cit.

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of conflicts of interest among national governments. In the case of

taxation, some governments remain deeply opposed to the harmo-

nization of taxation and social welfare, whereas there are few die-

hard defenders of unilateralism in matters of worker health and

safety or pollution aba tement. In this sense, the EU refl ects pattern s

of consensus and contestation within European publics.42

THE DELIBERATIVE DEMOCRATIC CRITIQUE: DOES THE EU

ENCO URAGE P UBLIC PASSIVITY?

Radical demo crats might non etheless be tempted to reject the entire

trend toward insulated d ecision-making, domestic and interna tional,

because the co st in terms of political par ticipation an d civic virtue is

perceived as too high .43 Such critics might o bserve that the European

Constitutional Settlement has failed to promote the transnational

political parties, identities, and discourses that might help render

European political participation meaningful and effective for citi-

zens. A number of analysts propose to employ European institutionsto induce social cooperation in pursuit of common interests polit-

ical par ties, interest groups, a commo n d iscourse, and so on. This in

turn, they expect, will generate legitimacy.

U nless entirely grounded in an ideal preference for participation ,

however, these criticisms rest on the questionable premise that

greater participation in European political institutions will generate

a d eeper sense of political community in Europe o r, at th e ver y least,

greater popular support for th e EU. Yet there a re at least th ree

reasons to doubt that this is the case.

First, insulated institutions constitutional courts and adminis-

trative bureaucracies, for example are often more popular with the


42 From th e perspective of democratic th eor y, fi nally, it is importa nt to note that

Scharpfs proposals are concerned primarily to maintain social protection in richer

member states. They are quite conservative in that they favor domestic redistribution

over transnational redistribution; the defense of German welfare standards takes

precedence over schem es for tran snational redistribution. Scharp fs justifi cation lies

in the subjective perception s of identity of nation al citizens in coun tries like Germa ny,

which do not support a heavy commitment to redistribution.43 For d iscussion s of th is argumen t, see Weiler, The Constitut ion of Europe, op. cit .;

Schmitter, How to Democrati ze the European Union, op. cit.; Seidentop, Democracy in

Europe, op. cit.

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public than legislatures. Internationally, institutions like the

European Court of Human Rights (ECHR) in Strasbourg command

great legitimacy despite their near total lack of direct democratic

legitimacy. The EUs position in the institutional division of labour

involves such political function s, as we ha ve just seen, an d it is unclear

whether more participation in such functions would legitimate them.

Whereas a greater sense of common identity might indeed increase

support for the EU, this does not bear on the case for democratic

reform but on the question of how extensive European integration

should be.44Second, EU legislative and regulatory activity is inversely corre-

lated with the salience of issues in the minds of European voters, so

any effort to expand participation is unlikely to overcome apathy.

Among the most significant consequences of the limitation of the

substantive scope of the EU, discussed above, is that the issues

hand led by the EU, and even more so second-order institutional

choices about how to manage them, lack salience in the minds of

Euro pean voters. Of the fi ve most salient issues in most West

European democracies health care provision, education, law andorder, pension and social security policy, and taxation none is pri-

marily an EU competence. Among the next ten, only a few (manag-

ing th e econo my, the environment, alongside the a nomalous issue of

Europe itself) could be con sidered major EU concern s, none exclu-

sively so.45 By con trast, th e issues in which th e EU specializes trade

libera lization , mon etar y policy, the removal of non -tar iff bar riers,

technical regulation in the environmental and other areas, foreign

aid, an d gen eral foreign po licy coord ination which tend to be low-

salience issues in most European polities.

Lack of salience, not lack of opportunity, may be the critical con-

straint on European political participation. This would explain why

European citizens fail to exploit even the limited opportunities they

have to participate. It follows tha t referendums, parliamentar y elec-

tions, or constitutional conventions based on such issues encourage

informationally impoverished and institutionally unstructured delib-

eration, which in turn encourages unstable plebiscitary politics

in which individuals have no incentive to reconcile their concrete



44 Gibson 2000 full details to come.45 I am indebted to Bonnie Meguid for access to her systematic data on issue

salience in European countries.

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interests with their immediate ch oices. The typical result is a debacle

like the recent Irish referendum on the Nice Treaty. Not only does

this demon strate the existence of signifi can t substantive constraints

on EU policy-making, but it implies as we shall see below that

even if a common European identity and the full panoply of dem-

ocratic procedures existed, it would be very diffi cult to induce mean -

ingful citizen participation.

Of course this could change in the future. But the proposals to

construct greater citizen involvement in EU politics that are most

plausible in theory are patently implausible in practice. In order togive individuals a reason to care about EU politics, it is necessary to

give them a stake in it a fact that many discussions of a demos, we-

feeling, community, and constitutional patriotism elide.46 The

most compelling schemes for doing so rest not on the creation of

new political opportunities, but the emergence of entirely new polit-

ical cleavages based on interest. Philippe Schmitter argues that agri-

cultural supports and structural funds should be replaced with a

guaranteed minimum income for the po orest one-third of Euro-

peans, national welfare systems should be rebalanced so as not tofavour th e elderly, an d immigrants and aliens should be gran ted full

rights.47 With the EU acting as a massive engine of redistribution,

individuals and groups would reorient their political behaviour on

whether they benefi t or lose from the system. P ARAG RAPH This is a co her

scheme targeted at precisely tho se groups most dissatisfied with

European integra tion tod ay broad ly speaking, the poorer, less well-

educated, female, and public sector populations but it is utterly

impractical. It would run up against one of the fundamental real-

world constraints on democracy, namely the willingness of some

groups to continue to participate in the project of European inte-

gra tion . In search of legitimacy, Schmitter breaks entirely with exist-

ing EU practices, divorcing the EU entirely from its ostensible

purpo se of regulating cross-border social beh aviour, and would

thereby undermine the legitimacy of almost everyone currently

involved with it. The result would almost certainly be a higher level

of political conflict, domestic and interstate, than Europe has

seen in several generations and perhaps the collapse of the

organization.


46 For an except ion , see Weiler, The Constituti on of Europe, op. cit .47 Schmitter, How to Democrati ze the European Union, op. cit.

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IMPLICATIONS FOR GLOBAL GOVERNANCE

Any assessment of the democratic legitimacy of regional and global

governance must not just be philosophical, but empirical and social

scientifi c as well. Rather than compa ring interna tional organizations

to idea lized an cient , Westminster-style, or ima ginar y political systems,

the baseline should be the real-world pra ctices of existing govern-

ments acting imperfectly under complex constraints. Above I pre-

sented a simple framework for conducting such an analysis and

applied it to the EU. In that case, a failure to view democracy realis-tically, as well as the failure to take into account the empirical idio-

syncrasies of the European case notably its limited mandate and

the continuing strong role of n ationa l governments has given critics

th e impression that the EU is undemocratic. In fact it is merely

specializing in th ose aspects of modern democratic governa nce that

typically involve less direct political participation. The apparently

counter-majoritarian tenden cy of EU political institutions insulated

from direct democratic contestation arises out of factors that them-

selves ha ve no rma tive integr ity, no tab ly efforts to compen sate fo r theignoran ce and non -participation of citizens, to make credible com-

mitments to rights enforcement, and to offset the power of special

interests. These institutional adaptations are normal in the second

best world of ad van ced industrial democracies. This is no t to say tha t

there is no cause for concern. There are a few areas where the EU

departs modestly from existing national practices without a com-

pelling substantive justifi cation . The most importan t is the structure

of European Central Bank, which is more independent of political

pressure than any known national example.48 Yet, overa ll, when

judged by the practices of existing nation -states an d in th e context

of a multi-level system, there is little eviden ce that the EU suffers

from a fundamental democra tic defi cit. We might of course nonethe-

less choose to criticize the broader trend toward professional admin-

istration, judicial enforcement of rights, and strong executive

leadership, but it is unrealistic to expect the EU to bear th e brun t of

such a critiq ue.



48 Matthias J. H erdegen, Price Stability and Bud getar y Restraints in the Econo mic

and Monetary Union: the Law as Guardian of Economic Wisdom, Common Market

Law Revi ew, 35 (1998), pp. 932.

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The framework for analysis I have presented is general, but can

the relatively optimistic conclusion be generalized? I am sceptical.

The favourable assessment of the EU rests on a number of assump-

tions that m ay not be un iversally true o f interna tional o rgan izations.

Above all, the democratic legitimacy of the EU rests on the fact that

na tional-states remain infl uential, democra tic and technically com-

petent. These cond itions cann ot be a ssumed to be true o f all nationa l

governments, particularly in the developing world.49 Nonetheless,

the EU establishes one endpoint in the current empirical con tinuum

of internationa l organ izations an endpo int tha t can serve as a start-ing po int for future compa rative research.


49 See the article by David Held in this volume.

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Moravcsik - Is There a Democratic Deficit in World Politics

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