De‐constitutionalisation and majority rule: A democratic vision for Europe

• DOI: http://doi.org/10.1111/eulj.12232
• Date: 01 September 2017
• Author: Fritz W. Scharpf
• Published date: 01 September 2017

ORIGINAL MANUSCRIPT

De‐constitutionalisation and majority rule: A

democratic vision for Europe

Fritz W. Scharpf*

Abstract

European integration has long relied on the democratic legitimacy of its Member States without paying much

attention to the increasing importance of its multilevel governing processes. At this time, however, Europe is

caught in the intersection of multiple crises, all of which—Brexit as well as the euro crisis, the refugee crisis as well

as the crises in Europe's relations with its Eastern and Southern ‘near abroad’—are challenging the effectiveness as

well as the democratic legitimacy of government on European and national levels. These dual challenges are con-

nected: Democratic legitimacy presupposes effective governing and problem‐solving capacity. Hence the failure

of output legitimacy may undermine or even destroy the possibility of input legitimacy—a risk for which the fate

of the Weimar Republic remains a most disturbing memento. At the same time, however, the lack of input legit-

imacy in the present European context will constrain and may ultimately destroy the effectiveness of measures

based on non‐accountable supranational authority.

1|DEMOCRATIC ASPIRATIONS

Democracy is a contested normative concept. And even if Lincoln's triad of ‘government of the people, for the people

and by the people’should find broad agreement, different traditions of normative democratic theory put the emphasis

on different elements. Thus the dominant emphasis of ‘output‐oriented’legitimating arguments is on government for

the people –that is, on the fundamental justification

1

for the coercive powers of governing authority by the function

of protecting life, liberty and property and promoting the common interest of the governed. ‘Input‐oriented’normative

arguments focusing on government by the people emphasise the institutions and processes facilitating collective self‐

government or, in representative democracies, ensuring the responsiveness of governors to the interests and prefer-

ences of the governed. ‘Community‐oriented’arguments, finally, focusing on government of the people emphasise

the precondition of a political community or demos that qualifies as the collective ‘self’of democratic self‐government.

Whatever may have been said until recently for the empirical plausibility of output‐oriented arguments, their

legitimating power has declined dramatically under the cumulative impact of the present crises. These illustrate and

demonstrate the fact that neither at the European nor at the national level does government have the capacity to

*

Max Planck Institute for the Study of Societies, Cologne. Email: fs@mpifg.de

1

Bernard Williams defines the ‘first political question’as the securing of order, protection, safety, trust, and the conditions of cooper-

ation. It is ‘first’because solving it is the condition of solving, indeed posing, any others. Cf. B. Williams, In the Beginning Was the Deed:

Realism and Moralism in Political Argument (Princeton University Press, 2015), at 3. In that sense, the representation of buon governo in

Ambrogio Lorenzetti's fresco in the Sienese Palazzo Pubblico (1338–39) does indeed symbolise the basic precondition of any dis-

course on political legitimacy.

DOI: 10.1111/eulj.12232

Eur Law J. 2017;23:315–334. © 2017 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 315

provide effective solutions for manifest common problems and common aspirations. In short, the present crises dem-

onstrate the political salience of challenges to the output legitimacy of government in the multilevel European polity.

If that is so, however, input‐oriented democratic legitimacy will be frustrated as well. For some, to be sure, polit-

ical participation is a value in itself –and the present European Union provides few opportunities for its realisation.

But for most of us, politics is about policies shaping the legal, economic and social conditions of our collectiveexis-

tence through purposeful political action. Yet, if the polity whose policies we hope to influence should lack the capac-

ity to shape these conditions, input‐oriented democratic participation loses its meaning and its legitimating power as

well. And neither could ‘communitarian’legitimacy arise under conditions where the prospective European political

community so obviously lacks the capacity for effective self‐government. In other words, under the present condi-

tions of the multilevel European polity, the lack of output legitimacy would undermine input‐oriented and commu-

nity‐oriented legitimacy as well.

2|THE ASYMMETRIC IMPACT OF EXCESSIVE CONSTITUTIONALISATION

In the European Union, the Treaties are legally binding for European and national authorities and their legislative,

executive, administrative and judicial actions. In that regard, they perform the functions ascribed to the ‘basic law’

in constitutional democracies; they are even harder to change than most national constitutions; and just like national

constitutional courts, the European Court of Justice (ECJ) has the final say in authoritative interpretation. But the

Treaties differ from national constitutions in crucial respects: a ‘lean’federal constitution must have rules organising

the federal level of government; it must also allocate governing competences to the levels of government; and it will

usually stipulate a number of fundamental rights protecting basic human and citizen rights and freedoms against the

exercise of governing powers. The European Treaties, however, go far beyond these core functions by regulating in

considerable detail a wide range of matters that democratic constitutions would leave to be determined by political

legislation.

2

In other words, there is more constitutional law in the EU than in constitutional federal states.

2.1 |The problem

By itself, the greater coverage of theTreaties affects the horizontal and the vertical balance of powers. In the horizon-

tal dimension, it reduces the domain of political legislation and it enlargesthe space for authoritative judicial interpre-

tation –which becomes the only mode through which changes in primary law can be brought about without a

unanimous Treaty amendment. In the vertical dimension it also constrains Member States in areas where, in the

absence of federal legislation, policy could have been shaped by national political action. What matters most for Mem-

ber States, however, is the fact that the Treaties have also come to incorporate an economic constitution, placing the

rules governing economic relations and economic policy beyond political determination.

This idea, which is alien to the constitutions of democratic states, federal or unitary, originated in Germany in the

1930s in the ‘ordoliberal’variant of normative economic theory. Opposed to laissez‐faire liberalism as well as to state

interventionism, it advocated a rule‐based economic regime in which state intervention would be necessary but

essentially limited to ensuring the stability of money and preventing the self‐destruction of competitive markets

through economic concentration and cartels. After World War II, ordoliberal principles had considerable influence

on German economic and legal theory

3

and also on the monetary and competition policies shaping the German ‘social

2

D. Grimm, ‘The Democratic Costs of Constitutionalization: The European Case', (2015) 21 European Law Journal, 460–473; D. Grimm,

‘Europe's Legitimacy Problem and the Courts’, in D. Chalmers, M. Jachtenfuchs and C. Joerges (eds.), The End of the Eurocrats'Dream:

Adjusting to European Diversity (Cambridge University Press, 2016), 241–36; D. Grimm, Europa ja –aber welches? Zur Verfassung der

europäischen Demokratie (C.H. Beck, 2016); there is an English translation: The Constitution of European Democracy (Oxford University

Press, 2017).

3

H. Ehmke, Wirtschaft und Verfassung: Die Verfassungsrechtsprechung des Supreme Court zur Wirtschaftsregulierung (C.F. Müller, 1961 ),

at 7.55.

316 SCHARPF