Critical Reflections on Constitutional Democracy in the European Union

Sacha Garben, Inge Govaere, Paul Nemitz, Sacha Garben, Inge Govaere, Paul Nemitz

• Publisher: Hart Publishing
• Year: 2019
• Print ISBN: 9781509952052
• eBook ISBN: 9781509933266
• Edition: 1
• Topic: Law
• Subtopic: Public Law
• Index: Law

This book takes a wide-ranging approach to tackle the complex question of the current state of constitutional democracy in the EU. It brings together a broad set of academics and practitioners with legal and political perspectives to focus on both topical and perennial issues concerning constitutional democracy (including safeguarding the rule of law and respect for fundamental rights) in theory and practice, primarily at EU level but also with due regard to national and global developments. This approach underlines that rather than a single problématique to be analysed and resolved, we are presently facing a kaleidoscopic spectrum of related challenges that influence each other in elusive, multifaceted ways. Critical Reflections on Constitutional Democracy in the European Union offers a rich analysis of the issues as well as concrete policy recommendations, which will appeal to scholars and practitioners, students and interested citizens alike. It provides a meaningful contribution to the array of existing scholarship and debate by proposing original elements of analysis, challenging often-made assumptions, destabilising settled understandings and proposing fundamental reforms. Overall, the collection injects a set of fresh critical perspectives on this fundamental issue that is as contemporary as it is eternal.

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Critical Reflections on Constitutional Democracy in the European Union and its Member States

SACHA GARBEN, INGE GOVAERE AND PAUL NEMITZ

Constitutionalism and Democracy

There is a sense of urgency, shared by the various contributors to this book, connected to a perception of crisis in Western politics. Although the health of Western democracies has been considered, at least by some scholars, in malaise since at least the early 1990s,¹ the developments of the past decade (most notably the economic crash, surges in terrorism and the migration crisis) seem to be spurring an increasingly exclusionary, nationalist narrative capturing cross-spectrum political support and the rise of anti-establishment forces that challenge the very foundations of our political, constitutional settlement. Legal scholars tend to phrase their concerns about these developments in terms of respect for the rule of law,² while political scientists focus on populism,³ but all worry, essentially, about the same thing: the system and values of constitutional democracy being under threat or ‘in crisis’.⁴ As Cesare Pinelli sets out in chapter two, the attacks on constitutional democracy are often disguised as a defence of democracy, against the elitist constraints of constitutionalism imposed by ‘the traditional parties as an aristocratic class that has “abandoned the people”’. There may indeed be a degree of inherent tension in the very concept of constitutional democracy,⁵ epitomised in the theoretical discussions concerning judicial review that Elise Muir revisits in chapter five. Taming the beast of ‘raw’ democracy, constitutionalism circumscribes and mitigates direct majoritarian decision-making, requiring compliance with predetermined rules and procedures as well as substantive norms⁶ such as fundamental rights in particular.

This book focuses on constitutional democracy. When narrowly defined, constitutional democracy constitutes but one part of a triptych of fundamental and indissociable concepts crucial to our modern societies, together with safeguarding the rule of law and respect for fundamental rights. Constitutional democracy understood in a thick sense comprises all these values. The rule of law which is currently put to the test in several Member States essentially implies that disputes will be settled by independent judges with a primary task to balance different individual and societal interests on the basis of a predetermined set of rules, in sharp contrast to any rule of power or rule of the majority. The main role of constitutional democracy in this respect is to ensure that important changes in rule-setting with a major or lasting societal impact are not subject to an ‘accidental’ majority at a given point in time but are rather the subject of thorough discussion and reflection, raising a sufficiently large public support for a truly constitutional law-setting which also safeguards the rights of minorities and individuals in society. Considered in that manner, the link with respect for fundamental rights of individuals ensured by independent judges thus becomes immediately apparent, especially also when faced with arguments to impose a dictate of a given majority invoking ‘raw’ democracy arguments.

Many will share the intuition that precisely those self-pronounced flag-bearers of democracy will seek to establish a de facto autocratic regime as soon as they can.⁷ Constitutional democracy’s value arguably lies in how it tackles this very democratic paradox, ie, how it prevents democracy from abolishing and delegitimising itself. Populism may come to power, but it may not come to define power and it may not wield it indefinitively, arbitrarily or at the expense of minorities. At some point sooner or later, the belief is, the scoundrels will be thrown out again. Constitutional democracy can be argued to be precisely designed for the situation where majoritarian democracy trips over itself, to help it pick itself up and carry on without irreparable damage being done. Could we therefore say that we find ourselves in a moment for constitutional democracy to shine and prove its worth? Perhaps yes, but it faces two fundamental difficulties in this regard. First, constitutional democracy itself suffers from a paradox: the political powers that it needs to contain the most, are the ones that it finds the hardest to contain. The raw forces of majoritarian nationalist politics feed on the perceived undemocratic nature of constitutionalism, and so constitutional constraints may inadvertently inflame the very fire they attempt to tame. Worryingly, empirical research seems to confirm a link between constitutionalism and populism.⁸ Secondly, as Daniel Kelemen explains in chapter three, taking the sharp edges off populist autocrats and mitigating their policies through a constitutional framework into ‘soft autocracies’, may limit their immediate damage but can unintentionally serve to legitimise these persons, parties or regimes, facilitating their longevity. Instead of crash-and-burn autocracy, constitutional democracy may lead to a state of enduring ‘autocratic equilibrium’.

Perhaps we can say that if populism can come to power in the first place (in the sense of exerting influence on the political process and outcomes thereof, not necessarily having a majority), this implies that there is a failure of the system in question to provide genuine constitutional democracy; that in a well-designed constitutional democracy such forces should not come to the fore at all. Political scientists seem to agree that populism is a ‘red flag’ about the health of democracy in a system.⁹ It is intuitive to consider that in a society that guarantees political and social equality and freedom for all subjects through robust fundamental rights protection and through decision-making by the people, in which they feel that they meaningfully participate in deciding on questions affecting their social and economic wellbeing, anti-establishment parties will not gain more than marginal traction. Thus, as the authors in this book generally agree, a robust, functioning democracy is premised on a number of constitutional guarantees and democracy manifests itself in (and requires) many dimensions, and not just crude in-the-moment direct majoritarianism. Upon such a view, genuine democracy is not constrained by constitutionalism but instead made possible by it, making the populists’ allegations misplaced. While there may not be a single perfect constitutional democracy, or society, presently existing across the globe, this does not mean that there is no ideal model to strive for – and, more practically, to provide a yardstick against which current failings can be explained to orient possible improvements. This ideal model transcends the false juxtaposition of constitutionalism and democracy that seems both theoretically impoverished and practically counterproductive. We instead need to invest in a theory of constitutional democracy in which the dialectic relationship between its two underpinning principles is elaborated more constructively.

Sacha Garben in chapter nineteen proposes the principle of legality as the main analytical tool in this regard: interpreted in light of national constitutional law this principle seems to be the very expression of constitutional democracy, in that it requires simultaneously (i) the lawfulness of the exercise of authority (based on an authorising norm and its relevant procedures, and respecting fundamental rights); and (ii) that parliament sources this authority. Developing this approach into a legitimacy framework for the exercise of authority, it is argued that the principles of democracy and constitutionalism do not only need to be balanced against each other but that they dynamically inform each other’s substantive content. On this view, constitutionalism’s primary purpose is to guarantee thick democracy: to create the necessary preconditions for it, to correct any ‘democratic failures’ in the process and to ensure that outcomes do not undermine robust democracy in the longer term. Democracy as interpreted in light of constitutionalism, on this ideal view, means a transparent, checked-and-balanced system of decision-making that ensures that those affected by decisions take part in making those decisions through robust representation and that the institutions through which this decision-making is operated cannot abuse their powers. Ultimately, the constitutional democratic order as a whole should respect and serve the primordial values of human dignity, equality and liberty.

This approach can at least partially transcend Waldron’s well-known juxtaposition of democratic decision-making on the one hand with the judicial review thereof on the basis of constitutional norms on the other:¹⁰ democracy through and on the basis of parliamentary decision-making itself is a constitutional norm that the judiciary should uphold. Moreover, the fundamental rights that constitutionalism needs to protect are those that contribute to creating the preconditions of a healthy democracy, and to the extent that they serve to prevent cases of majoritarian injustice.¹¹ Of course, constitutionalism requires that democratic decision-making respects certain procedural and substantive norms, and thus may entail overturning an act of parliament on that basis. But the limits of such judicial intervention lie in that the democracy principle should equally be respected, thus precluding judgments that amount to ‘judicial legislation’, because such judicial activism would amount to an important exercise of public authority without parliamentary involvement.¹² Where precisely the balance between the principle of democracy and the principle of constitutionalism should be struck in individual cases will always be open to debate. Constitutional democracy does not necessarily provide conclusive answers in itself, but provides the terms of the arguments to be made in reasonable disagreement where it occurs, which should serve to accommodate such disagreement in a constructive way. As Cesare Pinelli also notes in chapter two, the flexibility of constitutional democracy to accommodate legitimate disagreement through, and resulting in, a continuous adjustment of the dialectic principles of democracy and constitutionalism is how this form of government ‘absorbed de-structuring tensions’. Constitutional democracy is thus not a static model but a dynamic process.

Constitutional Democracy and the European Union

Constitutional Democracy, Federalism and the EU

If the relationship between constitutionalism and democracy is already exceedingly intricate, federalism adds further complexity to the analysis. On the one hand, standard federal theory tells us that one of the main advantages of multiplicity of government is that it protects against autocrats.¹³ The fragmentation of power in a federal system as compared with a single overarching central authority, is considered to imply a spreading of risk, ‘hedging our bets’ against tyrants.¹⁴ Furthermore, to the extent that a successful federation promotes subsidiarity through allowing intra-jurisdictional decision-making by the local level where possible, and multidimensional decision-making at the central level where necessary for solving inter-jurisdictional problems, the federal constitution benefits inclusive democracy in ways that constitutional democratic theory strives for. On the other hand, by contrast, Daniel Kelemen shows in chapter three that federal systems may actually be particularly prone to autocratic equilibriums, due to the incentives at federal level to tolerate autocracy on the local level: ‘democratic leaders at the federal level may come to rely on authoritarian leaders at the state level to deliver votes to their federal level coalition’. Furthermore, while federalism may be aiming to do justice to democracy, involving those most concerned by decisions in the process (which in some cases may imply local decision-making and in other cases at the federal or global level), it is notoriously difficult to get this ‘subsidiarity-calculus’ right both in theory and practice. Moreover, federalism’s complex organisation and inherently higher degrees of indirect representation (compared with centralised models) and distance to the citizen (compared with small single jurisdictions), presents obvious democratic challenges. This may explain the empirical finding that federal systems are more prone to populism.¹⁵

Adding the EU to this puzzle of federal constitutional democracy is a daunting task. At the existential level, debates are still raging on whether the EU has a constitution,¹⁶ whether it can be considered a federation,¹⁷ and the question whether it is a (sufficient) democracy continues to fill academic libraries as well as newspapers.¹⁸ Nevertheless, constitutional democracy is not only a form of government but also a normative approach to the legitimate exercise of public authority, and therefore the EU’s authority can – and should – be assessed against the standards of constitutional democratic theory. Of course, as many of our contributors point out, the EU should not be condemned for failing to live up to idealised national standards (which, incidentally, are not met by national states either). However, as these contributors also accept, provided that the requirements of constitutional democracy are (re-)interpreted to accommodate transnational democratic and cosmopolitan justice concerns, there is no reason why the EU could not and should not be analysed in light of the features and values of constitutional democracy. After all, ‘the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law’.¹⁹ Furthermore, the EU is increasingly facing a populist challenge to its authority, underlining the practical need to assess the EU in constitutional democratic terms. Such an assessment requires attention to the EU’s democratic credentials, the quality of its constitutionalism, and to the question of how in the EU the principles of democracy and constitutionalism interact. These analytical yardsticks can be used to consider the performance of the EU in the exercise of its authority as such, but will often also include the national dimension, in considering how the EU impacts on national systems. As such, the questions of the EU’s own constitutional democracy and that of its Member States should be discussed in an integrated manner.

EU Democracy

In chapter fifteen, Adam Cygan considers the EU’s democracy from the viewpoint of national parliaments, which have traditionally seen their participation in decision-making diminish due to European integration, and which are therefore at the heart of the standard ‘democratic deficit’ critique of the EU. Cygan notes that the EU increasingly involves national parliaments in EU legislation, especially since the Early Warning System (EWS) introduced by the Lisbon Treaty. A ‘multilevel framework of parliamentary governance’ seems to be emerging. This aligns with the view of several other contributors that the EU has significantly improved its democratic credentials over the years, culminating in the Lisbon Treaty, with its various democratic innovations and improvements in addition to the EWS, such as the European Citizens’ Initiati...

Table of contents

• Cover
• Title Page
• Foreword by Allan Rosas
• Table of Contents
• Notes on Contributors
• 1. Critical Reflections on Constitutional Democracy in the European Union and its Member States
• PART I: CRITICAL REFLECTIONS ON THE CURRENT STATE OF CONSTITUTIONAL DEMOCRACY IN THE EU AND BEYOND
• PART II: AN INSTITUTIONAL PERSPECTIVE ON EU CONSTITUTIONAL DEMOCRACY
• PART III: EU CONSTITUTIONAL DEMOCRACY: PISTES DE REFLECTION FOR THE FUTURE
• Index
• Copyright Page