Dario Castiglione

Building the Union: The Nature of Sovereignty in the Political Architecture of Europe

The debate on the nature of the European Union has become a test case of the kind of political and institutional arrangements appropriate in an age of globalization. This paper explores three views of the EU. The two main positions that have hitherto confronted each other appeal to either cosmopolitan or communitarian values. Advocates of the former argue for some form of federal structure in Europe and are convinced that the sovereignty of the nation state belongs to the past. Proponents of the latter make a case on both socio-political and normative grounds for a Europe of nations. However a third position, favoured by the authors, is gaining ground. This view combines cosmopolitan and communitarian conceptions. It emphasises the mixed nature of the European polity and conceives the constitutionalization process as open-ended. The paper concludes that from this perspective a bricoleur’s Europe of ‘bits and pieces’ may not necessarily lack justification and legitimacy.

Three Models of Democracy, Political Community and Representation in the EU

The EUs political system represents European citizens via three different channels: through the European Parliament; indirectly through their governments in the Council; and through domestic elections, which hold these last democratically accountable to national parliaments or citizens. However, these channels involve different and incompatible types of representation and forms of democracy, reflecting divergent conceptions of political community which, following Philip Pettit, we term solidarism, singularism and civicity respectively. The first channel seeks to represent the common good of a European people; the second the mutual self-interest of the single member states. We argue the first lacks social and political legitimacy, while the second proves insufficient to tackle collective European problems equitably or effectively. We propose reinforcing the third channel so as to modify these other two and produce a European ‘demoi-cracy’ able to sustain the form of representative democracy we associate with a civicity. We contend such a system fosters an ‘ever closer Union among the peoples of Europe’ by allowing the construction of shared policies that treat the different demoi with equal concern and respect.

Constitutionalism and Democracy – Political Theory and the American Constitution

The term ‘constitutional democracy’ can be interpreted as either an oxymoron or a tautology. On the one hand, constitutionalism and democracy can appear opposed to each other. Whereas the first term refers to ‘restrained and divided’ power, the second implies its ultimately ‘unified and unconstrained’ exercise. On the other hand, constitutions can be presented as codifying the rules of the democratic game, indicating who can vote, how, when and why. Since the democratic ideal involves more than mere adherence to the formal procedural devices of democracy, such as majority rule, many constitutionalists argue that no true democrat could consistently allow a democracy to abolish itself. There is no contradiction, therefore, in entrenching the rights that are inherent to the democratic process itself and preventing their abrogation even by democratically elected politicians. However, democrats point out that rules constrain as well as enable. There are many different models of democracy, which define the democratic rules in a variety of often incompatible ways. If democracy is to mean ‘people rule’, then the Demos should be free to redefine the rules whenever they want and should not be tied to any given definition. The need to keep open the possibility of democratic review seems particularly important when one remembers that the constitutions of many democracies have excluded significant categories of people from citizenship, notably women and those without property, and placed severe limits on the exercise of the popular will, such as the indirect election of representatives. Of course, some exclusions and limitations are inevitable – they are intrinsic to any rule-governed activity. That we are not lumbered with the exclusions and limitations of the eighteenth century, though, is in large part due to successive social and democratic movements and reforms. See S. S. Wolin, ‘Collective Identity and Constitutional Power’, in The Presence of the Past: Essays on the State and the Constitution (Baltimore: The John Hopkins University Press, 1989), p. 8; cf. also the various studies in J. Elster and R. Slagstad, eds, Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1988). On the restriction of scope that constitutionalism imposes on democracy, see A. Weale, ‘The Limits of Democracy’, in A. Hamlin and P. Pettit, eds, The Good Polity: Normative Analysis of the State (Oxford: Basil Blackwell, 1989); and R. Ruffilli, ‘Riforma delle istituzioni e trasformazione della politica’, in Istituzioni Societa Stato , vol. III, (Bologna: Il Mulino, 1991), pp. 707–21. Cf. P. Jones, Rights (London: Macmillan, 1994), pp. 173–5.

The Political Theory of the Constitution

Our current understanding of what a constitution is largely depends on the constructions which nineteenth-century constitutionalism placed upon it, locking the constitution into a series of complex relationships with liberal views of the modern nation state, parliamentary democracy, the rule of law and the market economy. As a political doctrine, constitutionalism is a modern invention. It comprises those theories which offer a series of principled arguments for the limitation of political power in general and of government’s sway over citizens in particular. In the course of the last two centuries, these limitations and their underlying principles have been partly embodied in the institutions and practices of the modern constitutional state. Constitutions have therefore been presented as the centre piece in the strategy for the limitation of power. They have often been invoked in order to legitimize, regulate and keep under control the powers that be, and regarded as the best means for the recognition and protection of the rights and liberties of the citizens. This interpretation of the modern constitutional state is correct in as far as it goes. Indeed, since ancient times there has been an intimate connection between the constitution and the idea of curbing human power. However, in emphasizing the negative limits imposed by constitutions, the contemporary view mistakenly takes the part for the whole.* In this essay I wish to offer a critical and more comprehensive understanding of the political theory of the modern constitution. I am also assuming that a ‘political theory of the constitution’ has at least three different objects: namely, the constitution as a political concept, constitutionalism as an ideological construction, and the constitutional state as a modern political formation. These have been too often confused with one another. Such a position is both historically and analytically untenable. The rest of this essay will mainly deal with the first two issues; but in the conclusion something will be said on the modern constitutional state and the challenges that lie ahead.

The Normative Challenge of a European Polity: Cosmopolitan and Communitarian Models Compared, Criticised and Combined!

Consider for a moment how odd the European Union’s political structure is.2 It lacks the chief characteristics of a sovereign constitutional nation state — namely, a congruence of territory, functional authority and identity; a monopoly of legitimate violence within its borders; exclusive control over the movement of goods and persons within its domain; a clear locus and hierarchy of authority and offices; offers little if any democratic accountability to those affected by its decisions; and has no pre-set limits to its area of competence. These features are largely loaned to it indirectly via the Member States, which also offer it the main source of its legitimacy. Yet this transferral of powers does not occur in the institutionalised and consistent manner of a federal system. It is achieved in a piecemeal fashion, either through the internal dynamics of Community decision making, or as a result of periodic pacts and treaties between the various governments concerned. Eppur si muove! It has a life of its own. The Treaties are not simple international agreements, they offer the basis for an independent legal system. The European agencies and bureaucracies amount to more than an inter-governmental organisation. They can generate and allocate revenue, regulate both public and private behaviour through legal and administrative directives, respond to pressure groups and organise elections, possess diplomatic status, and have the ability to conduct and conclude binding international negotiations on certain trade and security matters.

Lacroix's European Constitutional Patriotism: A Response

In the course of her interesting discussion of European constitutional patriotism, Justine Lacroix criticises our attempt to find a middle way between communitarian and cosmopolitan views of political allegiance and to apply the resulting cosmopolitan communitarian account to the European Union (Lacroix, 2002, pp. 951–5). She makes two main criticisms of our position. First, she criticises our analysis of the theoretical terrain. She contends that we conflate ‘supranationalists’ and ‘post-nationalists’ by placing them ‘in the same category’ (p. 953) and reduce theoretical debate on European identity to ‘an opposition between proand anti-Europeans’ in which the former are all ‘cosmopolitans’ and the latter all ‘communitarians’ (p. 953). Second, and as a consequence of this faulty analysis, she argues that we misunderstand the Habermasian theory of constitutional patriotism (p. 955). In fact, it is essentially the same as the ‘cosmopolitan communitarian’ perspective we advocate (p. 954), albeit a more sophisticated version. We wish to dispute both these points.

Republicanism and its Legacy

Republicanism is the area of political thought – both its history and theory – in which academic scholarship has perhaps been most productive during the past decades. Republicanism has been the object of historical reappraisal for the past 40 years at least – a reappraisal that has taken many forms and touched upon many different periods.1 Republicanism’s impact in normative political discourse has not been less evident, even though, leaving aside the earlier and quite distinct contribution of Hanna Arendt, this can only be dated to the last 15–20 years. While republicanism’s theoretical import remains difficult to assess at the present moment, it can be safely maintained that its theoretical manifestation has consistently found inspiration in the historical revival. The reasons for republicanism’s fortunes may be partly contingent. But, in historical studies, its ascendancy coincided with the rejection of the teleology of ideology-based narratives of political thought, and of their implicit economic and social determinism. Republicanism offered a repertoire of ideas and concepts that were rooted in a long tradition and that as such could be easily abstracted from the conditions of the time and thus made it to play a more active role. This tied in well with the new emphasis on the role of language as a form of action. Moreover, for the study of the early modern period, republicanism offered an alternative mode of thinking about politics and the state to that dominated by medieval and theological categories, and therefore something that could be more easily related to the process of the secularization of the modern mind. In normative theory, as one would expect, the reasons for republicanism’s fortunes were more self-conscious and direct. From a communitarian perspective, republicanism offered an example of a politics of identity based on strong political allegiances. In spite of the obvious, and by modern standards objectionable, exclusionary aspects of classical republicanism, its insistence on civic morality and patriotism were appealing features as part of the criticism of the dis-embedded individualism associated with contemporary forms of liberalism. In particular, the republican revival in American historiography found immediate echo in both American political and legal theory, suggesting a different genealogy for American democracy and constitutionalism, and offering a historically and culturally

Introduction: Constitutions and Politics

Constitutions play a vital role in politics. With a few honourable exceptions, however, contemporary political scientists and theorists have paid them remarkably little attention. Apart from a periodic interest in electoral laws, voting systems and the relative merits of parliamentarism and presidentialism, the profession has treated the study of constitutions as at best an irrelevance and at worst misleading, providing no guide to the genuine operations of politics. Amongst British academics, this lack of interest has often been attributed to the peculiarity of the country’s own unwritten constitution. But this attitude is equally common in countries with a strong constitutionalist tradition one need only think of the American behaviourist school. This relative indifference to constitutional issues amongst the political studies community would appear to result from a number of more general factors, therefore, that derive from certain prevailing conceptions of the discipline. By and large, political scientists view constitutions as idealistic and, as a consequence, insignificant. They have regarded them as formal legal frameworks bearing little or no relation to the real workings of the political system such as the influence of government and the administrative machine, or the clash of interests and political cultures within a nation. After all, they point out, many repressive regimes have had written constitutions offering all kinds of formal protection for individual and collective rights. But these provisions proved totally worthless because the constitutional documents within which they appeared had no influence on, and largely misdescribed, the actual exercise of power in those countries. Seen in this light, constitutions appear to be either the unnecessary adornments of good regimes that work well for totally unrelated reasons, or the means whereby bad regimes are provided with a spurious legitimacy. Political theorists, in contrast, have often ignored constitutions because they have considered them too empirical and the preserve of mainly legal, historical and sociological scholars. They have found the institutional, cultural and positive characteristics of constitutions difficult to integrate into their more abstract discussions of justice and power, self-interest and collective choice. This volume challenges these rather narrow conceptions of the discipline of politics, revealing in the process the political significance of constitutions. Constitutionalism offers not only a mutually beneficial point of contact between the descriptive and the prescriptive branches of political studies, it also relates politics to other fields of enquiry. To this end, the editors have invited contributions from jurists, sociologists and economists as well as from political scientists and theorists and historians of political thought. This interdisciplinary endeavour illuminates how politics requires certain normative and social preconditions that constitutions strive, with varying degrees of success, to

A New Agenda for Democratic Representation

Modern democracy is often considered to be tantamount to representative democracy. In her most recent statement on representation, Hanna Pitkin admits that when writing The Concept of Representation (1967), she took the relationship between representation and democracy to be unproblematic: “… like most people even today, I more or less equated democracy with representation, or at least with representative government. It seemed axiomatic that under modern conditions only representation can make democracy possible” (2004, 336). Almost forty years later, Pitkins view is that “representation has supplanted democracy instead of serving it” (2004, 339). She concludes her analysis asking whether democracy can be saved from the increasing turn (or return) of political representation to more elitist forms of government and dominion.

The culture of tolerance in diverse societies: Reasonable toleration

Introduction - Reasonable toleration Part 1. Re-thinking toleration 1. Toleration and reasonableness - Jeremy Waldron 2. The reasonableness of pluralism - Susan Mendus and Matt Matravers 3. Tolerance and the character of pluralism - Catriona McKinnon 4. Toleration, justice and reason - Rainer Forst 5. Recognition without ethics? - Nancy Fraser Part 2. The contexts of toleration 6. Reflexive toleration in a deliberative democracy - James Bohman 7. City Life and community: Complementary or incompatible ideals - Andrew Mason 8. Social ethos and the dynamics of toleration - Jonathan Wolff 9. Toleration and laicite - Cecile Laborde 10. Toleration of religious discrimination in employment - Stuart White 11. Education to tolerance: Some philosophical obstacles and their resolution - David Heyd