The European Social Contract and the European Public Sphere

• Date: 01 January 2006
• Published date: 01 January 2006
• DOI: http://doi.org/10.1111/j.1468-0386.2006.00307.x
• Author: Stephan Bredt

The European Social Contract and the

European Public Sphere

Stephan Bredt*

Abstract: The possible existence of a European democracy does not depend on the pre-

requisite of a homogeneous public sphere but on the understanding of the relationship

between the normative basis of a European democracy—here a social contract—the struc-

ture of the European public sphere and the corresponding institutions. The normative

concept of democracy as expressed in social contract theory is neither bound to the city-

state nor the nation-state, but can be transferred to the European level. To realise the nor-

mative aims of the social contract the democratic institutions have to be—and were in the

city—and the nation state—adapted to the structure of the respective public sphere. Two

institutional characteristics of the democratic European polity could correspond to the het-

erogeneous European public sphere: (1) a cooperation of institutions with clearly separated

and limited competences—contrary to the ideal-type sovereign institutions with broad com-

petences in the nation-state, and (2) the policy field-oriented structure—contrary to the

more uniform and functional structure of democratic institutions in the nation states.

I Introduction

APublic Spheres and a European Democracy

Is a homogeneous public sphere a prerequisite for democracy? Could a European

democracy be based on 25 different and interacting national public spheres and lan-

guages? These and similar questions are frequently asked in the debate over the cre-

ation of a European democracy.1They lead to the questions: what kind of institutions

needs the EU with its multitude of public spheres to correspond to democratic stan-

dards? And: what is the European democratic standard?

To answer these questions, two closely related arguments will be developed here. The

first argument is that the possible existence and polity of a democracy can only be

understood by the relation between its normative basis, the structure of its public sphere

and decision making process and its institutions. The second argument is that most of

European Law Journal, Vol.12, No. 1, January 2006, pp. 61–77.

© 2006 The Author

Journal compilation © 2006 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Stephan Bredt is currently working as a legal adviser at the German Bundestag and graduated in April

2005 with a PhD at the Institute of International and European Law of the Humboldt University,Berlin.

Comments on this article may be sent to stephanbredt@gmx.de.

1D. Grimm, ‘Braucht Europa eine Verfassung?’,(1995) Juristenzeitung,588 ff.; J. Habermas, ‘Remarks on

Dieter Grimm’s “Does Europe need a constitution?”’, (1995) ELJ, 303ff.

the critique of a seeming deficiency of a European democracy—concerning its missing

homogeneous public sphere—is based on a wrong theoretical understanding of democ-

racy as a homogeneous unit of undivided sovereignty in the nation state. Democracy

does not require one of the above mentioned elements in a specific form independently

of their context. Democracy is realised by the ways of interaction of its different con-

stituting elements. Therefore it cannot be said that democracy cannot exist without a

homogeneous public sphere.

After a definition of the notion of public sphere and sociocultural elements of

democracy the first step will distinguish between theoretical elements of democratic

theory that originate from the idea of the nation state and elements that are essential

parts of the contract model of democracy. It will be demonstrated that the normative

concept of democracy as a social contract has already been successfully transferred

once from the city state to representative democracy and why a further development

on the European level meets the resistance of the nation-state theory of democracy.

The role of the public sphere in the different conceptions of social contract theory will

be analysed. In a second step a European understanding of democracy will be devel-

oped on the basis of the contractarian approach. It will be shown that the requirements

for democratic institutions on the European level are different from those in consoci-

ational societies. It will be examined whether a European democracy can really be con-

sidered as a merely output-oriented concept of democracy as done by Fritz Scharpf.2

To finish, the contract model of democracy in shape of the deliberative approach will

be compared to the other contractarian approaches used before.

II Definition of Public Sphere and Other Sociocultural Elements of

Democracy

APublic Sphere and Identity as Prerequisites of Democracy

A more or less homogeneous public sphere, cultural or ethnic identity are widely seen

as conditions of a working democracy. This article is focused on the problem of het-

erogeneous public spheres and democracy because this seems to be the crucial point in

the debate on the possibility to constitute a European democracy. It is clear that democ-

racy is linked to what Dahl calls the problem of inclusion.3Dahl argues that we cannot

derive the criteria for the identity of a political system from within democratic theory.

Within democratic theory we have to take the existence and boundedness of political

entities as given through contingent historical circumstances.4In other words, democ-

racy requires the willingness of the people to transfer competences to a certain politi-

cal unit. This is a problem that is at the heart of any federal design, since all federal

systems presuppose the boundedness of the units that are to make up the federation.

This condition must also be recognised by theories that see the legitimating force

of democratic law making not in a pre-existing substantive ethical consensus of a

political community but rather in the democratic procedure for the production of law

European Law Journal Volume 12

62 © 2006 The Author

Journal compilation © Blackwell Publishing Ltd. 2006

2F. Scharpf, Governing in Europe: Effective and Democratic? (Oxford University Press, 1999) 13ff.

3R. Dahl, Democracy and its Critics (Yale University Press, 1989), chapter 9.

4Similar A. Weale,‘Democratic Legitimacy and the Constitution of Europe’, in: R. Bellamy, V. Bufacchi

and D. Castiglione (eds), Democracy and Constitutional Culture in the EU (Lothian Foundation Press,

1995), p. 88.