European Democracy, the ‘Permissive Consensus’ and the Collapse of the EU Constitution

• Author: Achim Hurrelmann
• Published date: 01 May 2007
• Date: 01 May 2007
• DOI: http://doi.org/10.1111/j.1468-0386.2007.00369.x

European Democracy, the ‘Permissive

Consensus’ and the Collapse of

the EU Constitution

Achim Hurrelmann*

Abstract: The draft Constitution was an attempt to democratise the EU, while taking

account of the problematic social preconditions for democracy at the Union level. Its

failure demonstrates the need to pay greater attention to the nature of public support for

the EU, and to the ways in which this support is related to the democratic quality of EU

institutions. Contrary to what is often assumed, EU support can still be quite adequately

described by the figure of a ‘permissive consensus’. For better or worse, attempts to

democratise EU institutions might undermine this form of support.

The failure of the constitutional referenda in France and the Netherlands has left the

EU in a state of uncertainty. Although the European Council decided not to abandon

the constitutional project, there is no agreement whether the draft Constitution should

be subjected to new referenda more or less unchanged, whether it should be signifi-

cantly amended, or whether its core achievements should be implemented by non-

constitutional means. In any event, enthusiasm for the constitutional process initiated

by the Laeken Declaration in December 2001 seems to have passed. And with it, this

process’s basic premise—the idea that institutional reforms could significantly improve

the democratic quality of the Union and, by thus strengthening its normative legiti-

macy, bolster popular support for EU institutions—has also been cast into doubt.

The popular rejection of the EU Constitution hence forces analysts to pay closer

attention to the nature and foundations of public support for European integration,

and to the ways in which this support is related to the democratic quality of EU

institutions. This article argues that a crucial factor that accounts for the rejection of

the Constitution is that, contrary to what is often assumed, support for the EU can still

be quite adequately described by the figure of a ‘permissive consensus’.1If this is the

case, however, measures of democratisation do not necessarily lead to greater social

acceptance for the EU, but might actually undermine EU support.

The argument is presented in two steps. First, the article revisits some of the general

difficulties that complicate the democratisation of EU institutions. It demonstrates

that these difficulties, stemming from the problematic social preconditions for

* Department of Political Science, Carleton University, Ottawa (Canada).

1L. N. Lindberg and S. A. Scheingold, Europe’s Would-be Polity: Patterns of Change in the European

Community (Prentice-Hall, 1970).

European Law Journal, Vol. 13, No. 3, May 2007, pp. 343–359.

© 2007 The Author

Journal compilation © 2007 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

democracy in the EU, can, in principle, be overcome by adapting democratic institu-

tions to the social environment in which they operate, and that the draft Constitution

contained a number of provisions that were designed to serve exactly this goal. Yet,

as will be argued in the second part of the article, these provisions have endangered

some of the foundations on which the existing ‘permissive consensus’ on European

integration has been based. If this argument is correct, the problem with the Consti-

tution was that it followed a strategy of democratisation that paid insufficient atten-

tion to the nature of existing support for the EU. Some implications of this finding are

discussed in the conclusion.

I The EU Constitution as a Project of Democratisation

The constitutional process in the EU can be understood as a project of democrati-

sation: when the heads of state and government of the Member States agreed on the

Laeken Declaration, they stressed that the reforms to be debated in the ‘European

Convention’ were to improve the ‘democratic legitimacy’ of the Union by bringing it

‘closer to its citizens’.2Every attempt at democratising EU institutions, however, has

to confront the well-known objection that the necessary social preconditions for

democracy in the EU are lacking.3This argument, as well as the counter-argument

that democratic institutions are themselves able to create a favourable ‘infrastructure’

for their own functioning,4focuses attention on the interactions between democratic

institutions and their social environment. After some conceptual clarifications that

introduce an analytical framework to analyse these interactions (section A below),

the first part of this article seeks to identify indispensable social preconditions for

democracy (section B), then shows how democratic institutions can themselves con-

tribute to fulfilling these conditions (section C), and finally examines the provisions in

the draft Constitution that serve this goal (section D). It concludes that the Consti-

tution is an attempt to improve the democratic quality of EU institutions, while

taking account of the problems posed by the particular characteristics of European

society.

A Forms of Social Integration: Conceptualising the Environment of Democratic

Institutions

To study the interactions between democratic institutions and their social environment,

an analytical framework is required that makes it possible to describe the social

environment in which political institutions operate. This analysis will rely on the

concept of social integration, defined as the state or process of inclusion of individual or

2European Council, The Future of the European Union—Laeken Declaration (2002), available at http://

europa.eu.int/constitution/futurum/documents/offtext/doc151201_en.htm. The Convention referred to is

the body chaired by Valéry Giscard d’Estaing, which drafted the first version of the Constitutional Treaty.

3D. Grimm, ‘Does Europe Need a Constitution?’ (1995) 1(3) European Law Journal 282; D. Miller,

‘The Left, the Nation-State, and European Citizenship’ (1998) 45(Summer) Dissent 47; C. Offe, ‘The

Democratic Welfare State in an Integrating Europe’, in M. T. Greven and L. W. Pauly (eds), Democracy

beyond the State? The European Dilemma and the Emerging Global Order (Rowman & Littlefield, 2000);

F. W. Scharpf, ‘Economic Integration, Democracy and the Welfare State’ (1997) 4(1) Journal of European

Public Policy 18.

4J. Habermas, The Postnational Constellation: Political Essays (MIT Press, 2001), pp. 98 ff.; J. Habermas,

Der gespaltene Westen: Kleine Politische Schriften X (Suhrkamp, 2004), pp. 68 ff.

European Law Journal Volume 13

© 2007 The Author

344 Journal compilation © 2007 Blackwell Publishing Ltd.