Democratic Legitimacy in the Bund or ‘Federation of States’: the Cases of Belgium and the EU

• Author: Stefan Sottiaux,Stefan Rummens
• DOI: http://doi.org/10.1111/eulj.12053
• Date: 01 July 2014
• Published date: 01 July 2014

Democratic Legitimacy in the Bund or

‘Federation of States’: the Cases of

Belgium and the EU

Stefan Rummens* and Stefan Sottiaux**

Abstract: Carl Schmitt developed the concept of the ‘federation of states’ (Bund) in

order to characterise intermediate constitutional systems which are integrated beyond

the level of a confederation (Staatenbund) without, however, acquiring the level of

integration of an actual federal state (Bundesstaat). In this paper we analyse the

constitutional specificity of the ‘federation of states’ and present three normative prin-

ciples for assessing the democratic legitimacy of the decision-making procedures within

such a federation. We argue that both the European Union and Belgium can be analysed

as instances of such a federation of states and show how this characterisation improves

our understanding of the evolutionary dynamics of both polities and the constitutional

and democratic challenges they are facing.

I Introduction

Much of the contemporary theoretical work concerning the emergence and develop-

ment of transnational and multilevel polities is marked by an often unfruitful

opposition. ‘Traditionalists’ in both constitutional and democratic theory stick to

well-known state-centred conceptual schemes and aim to qualify polities such as the

EU as either a confederation or a federal state in the making. They emphasise the

need for a transparent and hierarchical constitutional order and clearly located sov-

ereign power and assume that democratic legitimation has to proceed through cen-

tralised representative political institutions.1In contrast, ‘reformists’ in both

disciplines suggest that the old state-centred conceptual frameworks are outdated and

happily talk about, for instance, multilevel governance, late or post-sovereignty,

constitutional pluralism, decentralised stakeholder democracy or the presence of a

plurality of dèmoi.2

* Associate Professor of Moral Philosophy, Institute of Philosophy, KU Leuven, Belgium.

** Assistant Professor of Constitutional and Administrative Law, KU Leuven, Belgium.

1See, eg D. Grimm, ‘Does Europe Need a Constitution?’, (1995) 1 European Law Journal 282;

W. Kymlicka, Politics in the Vernacular. Nationalism, Multiculturalism, and Citizenship (Oxford

University Press, 2011).

2See, eg J. Bohman, Democracy across Borders (MIT Press, 2007); J. Cohen and C. Sabel, ‘Directly-

Deliberative Polyarchy’, (1997) 3 European Law Journal 313; D. Held and A. McGrew (eds), Governing

Globalization. Power, Authority and Global Governance (Polity Press, 2002); J.N. Rosenau and

E.O. Czempiel, Governance Without Government: Order and Change in World Politics (Cambridge

University Press, 1992); N. Walker, ‘The Idea of Constitutional Pluralism’, (2002) 65 Modern Law

Review 317; N. Walker (ed), Sovereignty in Transition. Essays in European Law (Hart Publishing, 2003).

bs_bs_banner

European Law Journal, Vol. 20, No. 4, July 2014, pp. 568–587.

© 2013 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

This article starts from the assumption that an adequate analysis of contemporary

developments will have to find a middle ground in conceptual terms. Although

current developments are sufficiently new to require conceptual innovation, the often

sweeping rejection of traditional categories by reformists is too hasty. Analytically,

the new vocabulary is often unable to capture adequately the persistent importance of

centralised state-like structures. As a result, these new theories are also often norma-

tively unable to provide guidance regarding the actual legal and political questions

that judicial or political actors are facing when discussing matters of, for instance,

supremacy, subsidiarity, the transferral of competences or the democratic legitimacy

of actual institutions.

The guiding hypothesis of this contribution is that the currently underappreciated

concept of a ‘federation of states’ or ‘union of states’ (also Bund ) might help to

develop this conceptual middle-ground and might, therefore, help to provide a

better understanding of the characteristics and dynamics of currently developing

multilevel polities. This concept is ‘new’ in the sense that it aims to transcend the

traditional, stark dichotomy between confederal and federal state structures, but

remains, at the same time, ‘traditionally’ committed to centralised state-like

institutions as well as to state-like concepts such as ‘constitutional order’ or

‘sovereign power.’

Although the notion of the federation of states traces a long history in

constitutional thought and practice, it vanished from the radar for almost a century,

only to be rediscovered recently by EU law scholars as a model for the EU. Indeed,

recent years have witnessed the publication of several academic contributions

convincingly drawing the parallels between the concept of the federation of states

and the EU in its current form.3Although we agree that the EU shows many of the

characteristics of a federation of states, and that the model allows us to better

understand the constitutional structure of the EU and its Member States, the

conceptualisation of the EU as a federation also raises a number of new questions.

This article focuses on one such question: what does the characterisation of the

EUasaBund teach us about the old debate on the democratic credentials of the

EU? This issue has been ignored or dealt with only marginally in the new

scholarship on federal unions.4More generally, the purpose of this article is to

formulate a number of principles for democratic decision making in federations of

states.

Our discussion of the constitutional structure and the democratic legitimacy of the

Bund is not limited to a case study of the EU. Belgium provides another interesting

example of a multinational federation that is difficult to categorise as either a federal

state or a confederation. Like the EU, Belgium faces serious democratic and

3See, eg M. Avbelj, ‘Theory of European Union’, (2011) 36 European Law Review 818; O. Beaud,

Théorie de la Fédération (Presses Universitaires de France, 2007); R. Schütze, From Dual to

Cooperative Federalism. The Changing Structure of European Law (Oxford University Press, 2009);

C. Schönberger, ‘Die Europäische Union als Bund. Zugleich ein Beitrag zur Verabschiedung

des Staatenbund-Bundesstaat-Schemas’, (2004) 129 Archiv des öffentlichen Rechts 81; E. Zoller,

(2002) ‘Aspects internationaux du droit constitutionnel. Contribution à la théorie de la

fédération d’États’, (2002) Recueil des cours de l’Académie de droit international de La Haye

49.

4For a brief discussion of the democratic deficit in relation to the federation of states, see, eg R. Schütze,

European Constitutional Law (Cambridge University Press, 2012), at 74–79.

July 2014 Democratic Legitimacy in the Bund

569

© 2013 John Wiley & Sons Ltd.