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

Date01 September 2017
Published date01 September 2017
Deconstitutionalisation and majority rule: A
democratic vision for Europe
Fritz W. Scharpf*
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 whichBrexit 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 problemsolving capacity. Hence the failure
of output legitimacy may undermine or even destroy the possibility of input legitimacya 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 nonaccountable supranational authority.
Democracy is a contested normative concept. And even if Lincoln's triad of government of the people, for the people
and by the peopleshould find broad agreement, different traditions of normative democratic theory put the emphasis
on different elements. Thus the dominant emphasis of outputorientedlegitimating arguments is on government for
the people that is, on the fundamental justification
for the coercive powers of governing authority by the function
of protecting life, liberty and property and promoting the common interest of the governed. Inputorientednormative
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. Communityorientedarguments, finally, focusing on government of the people emphasise
the precondition of a political community or demos that qualifies as the collective selfof democratic selfgovernment.
Whatever may have been said until recently for the empirical plausibility of outputoriented 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:
Bernard Williams defines the first political questionas the securing of order, protection, safety, trust, and the conditions of cooper-
ation. It is firstbecause 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 (133839) does indeed symbolise the basic precondition of any dis-
course on political legitimacy.
DOI: 10.1111/eulj.12232
Eur Law J. 2017;23:315334. © 2017 John Wiley & Sons 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, inputoriented 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, inputoriented democratic participation loses its meaning and its legitimating power as
well. And neither could communitarianlegitimacy arise under conditions where the prospective European political
community so obviously lacks the capacity for effective selfgovernment. In other words, under the present condi-
tions of the multilevel European polity, the lack of output legitimacy would undermine inputoriented and commu-
nityoriented legitimacy as well.
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 leanfederal 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
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 ordoliberalvariant of normative economic theory. Opposed to laissezfaire liberalism as well as to state
interventionism, it advocated a rulebased economic regime in which state intervention would be necessary but
essentially limited to ensuring the stability of money and preventing the selfdestruction of competitive markets
through economic concentration and cartels. After World War II, ordoliberal principles had considerable influence
on German economic and legal theory
and also on the monetary and competition policies shaping the German social
D. Grimm, The Democratic Costs of Constitutionalization: The European Case', (2015) 21 European Law Journal, 460473; 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), 24136; 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).
H. Ehmke, Wirtschaft und Verfassung: Die Verfassungsrechtsprechung des Supreme Court zur Wirtschaftsregulierung (C.F. Müller, 1961 ),
at 7.55.

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