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Maybe the most important event in Europe of the final decade of this century has been the transition to democracy of former communist countries in Central and Eastern Europe. Although democracy has been established practically all over Europe, democracy in the western part of Europe was confronted with a process of transition from democracy on its difficult way to an "ever closer union": the "European democratic deficit". The completion of the 1992-programme, followed by the EU- and EMU-treaties of Maastricht, implied a definite shift of the centre of political gravity from national capitals to the EU. The Single European Act (1986) and the Treaties of Maastricht (1991) and Amsterdam (1996) went along with considerable increases of the powers of the European Parliament (EP). However, this increase was not enough to take away a widely shared feeling that the policies of European integration are a matter of top-politicians and bureaucrats rather than of the peoples of Europe.
In addition to these two often discussed developments, a much less obvious process of transition in democracy has been going on. It consists in the dealignment of citizens from national democratic party politics. This third form of transition has developed relatively independently from the European integration. However, the foreseeable interaction between these three forms of democratic transition raises serious questions about the future of democracy in Europe.
Transition to democracy confronts the EU with the problem of the integration of new democracies. Without a thorough reform, the existing institutions of the EU do not seem capable of coping with yet another enlargement while remaining effective in decision-making. Extra pressure for institutional reform will also come, no doubt, from monetary union. Monetary union has some evident advantages: no costs of exchange and no instability of currencies, less vulnerability to international speculation, a prominent position of the Euro as an international currency and, as a consequence, an increase in economic and political power of the EU. However, it is also bound to create problems. The effects of economic imbalances within the EU will no longer be softened by the exchange rate mechanism and will therefore call for extra investments and transfer-payments between European countries. These problems of monetary union will raise the need for a still greater transference of political power to the EU.
Both of these factors, new member-states and monetary union, push for a more effective form of decision-making on a European level. However, this will require that individual member-states play a lesser role. This will aggravate the already existing democratic deficit and it is far from obvious how that might be amended. If European integration will become even more intense as can be expected as a consequence of monetary union, a federal political structure might seem to be the best solution of the problem. However, that would reinforce transition in democracy, the process of dealignment from party politics, as parties and government operating at a European level will become even more bureaucratic and inaccessible than national parties are already. The question can therefore be raised whether we are not caught in the classical dilemma between a need for further integration, and democracy becoming less feasible as the number of citizens grows.
Before resigning to such pessimism, however, we should ask ourselves to what extent democratic deficiencies on the national level determine the problems on the European level and vice versa. Is there really no alternative to federalisation that would serve democracy better?
The analysis will begin with the concept of democracy, a complex concept that is rarely made explicit in discussions about democratic deficits. Differences between theories of democracy can be related to a cognitive, a functional and a legal dimension, each of which can be understood in a more formal or a more material sense. It is important to take all of these dimensions into account when making comparative judgements on the quality of democracy.
The next step will be to take a look at transition in democracy as recorded in recent political science literature. What is problematic about this form of transition? This is followed, in the third section, by an analysis of transition from democracy. What exactly is the nature of the European democratic deficit? In section four, I will consider if there are easy ways out of that deficit. In the fifth section, I will describe and reflect upon a recent proposal for European integration made by Swiss political economist Bruno Frey, in which the connection between democracy and either national or federal statehood has been severed. I will evaluate his proposal using the concept of democracy developed in the first section. Although my judgement is very positive, I will conclude that Frey's proposal leaves some important questions concerning the relationship between constitutional law and democracy unanswered. However, his model can be amended to solve these problems. Finally, in the last section, it will be argued that a reinforcement of the role of the regions in Europe might offer a bridge or a compromise between the present situation and Frey's proposal, that differs so radically from it.
One of the great problems in discussing the democratic quality of political institutions and processes is a lack of definition concerning the concept of democracy. This is very problematic because democracy, as used in daily political rhetorics, has many connotations. In this section I will investigate the different value dimensions of democracy and their connections to different sorts of theories of democracy. The purpose of the exercise is to allow a proper evaluation of proposals for the improvement of democracy.
I suggest that theories of democracy can be categorized depending on which of three perspectives on collective decision-making they focus primarily. These three perspectives are connected to three fundamental questions which every complete political philosophy must face:
The first question is of a cognitive nature. Is there something that might be known as "the political good"? If so, the role of democracy in establishing this good must be explained. If not, it must be explained why democracy is the best way of dealing with the problem that there is no such thing as an objective political good. One possible answer of the latter inquiry remains within the cognitive dimension. It replaces substantive or material political cognition by the greatest possible consensus, a formal-democratic feature of political cognition.
However, this is just one possibility. Instead of as a process of collective cognition, one can see democracy as a process of collective action. The purpose of this action can again be of a material or of a formal kind. It is material, if the purpose is to further collectively subjectively defined interests. It is formal, if the democratic political process as such is what democracy is supposed to be primarily about.
The third perspective, is determined by the relationship between politics and rights. One can distinguish between a formal and a material relationship between law and politics. One can speak of a formal relationship, if the purpose of politics is simply the protection of "natural" rights. Rights are "natural" if they are supposed to deserve respect independently from whether or not they are recognised as such by a political system. One can speak of a material relationship, if rights are seen as produced by democratic decision-making itself, and aiming at ends other than just the protection of rights.
Formal-cognitive theories of democracy have their roots in ancient scepticism. They are based on the idea that because an objective knowledge of the political good is not possible, one can only strive for the greatest possible consensus among citizens, and that democracy is the means to do so. This idea is also found back in modern theories. It figured prominently, for instance, in Kelsen's theory of democracy. In fact, every time the democratic majority-argument is brought into play as a sufficient reason to demand obedience, cognitive formalism is its implicit justification.
That objective knowledge of the politically good would be impossible is not in itself a sufficient reason to advocate democracy. If objective knowledge is impossible, one must fear that disagreement will tear society apart and that might be an argument for dictatorship. However, an argument for democracy can be built if one has a great trust in the power of rhetoric to create agreement in society, and/or in the willingness of minorities to accept the majority opinion after everybody has been able to listen to pro- and counter-arguments. Not only will the minority avoid social disruption in doing so, it will also maintain its chance to become a majority. In fact, sometimes individuals and political parties will belong to the minority and sometimes to the majority, whereas the democratic process will often result in final decisions which can attract widespread support because they are in between the initial positions. Even if "truth" is an inappropriate category when it comes to politics then, democracy creates, in the formal-cognitive view, at least a maximal identification between government and what people believe to be the truth about the political good.
In contrast to the formal-cognitive point of view, theoreticians like Rousseau and Kant assumed that democracy can generate a true vision of the public good. Rousseau claimed that the intuition of a majority of a well-integrated and therefore also necessarily small society could never err. However, in his view democratic decision-making should be restricted to saying yes or no to a concrete legislative proposal, a referendum. Rousseau was very distrustful of public debate as it would confuse the healthy intuition of public opinion and might be used by demagogues to manipulate it. Society might thus be dsivided by democracy, rather than united by it. Quite to the contrary, Kant believed that public debate was the means to expose politicians with false motives and to generate proposals which are literally in the best interest of society. The directedness of democracy towards the general interest, was furthermore supported by both Rousseau and Kant by demanding that laws should be general. A voter should not be able to predict whether he or she would personally profit or be burdened by a law in the longer run.
Although both Rousseau and Kant set highly idealistic conditions for their theories, the idea that democracy can be restricted to approximately general interests, is still seen as an important matter. In fact, much of the public choice-literature is about rules which can prevent that a democratic state becomes a means through which certain social groups can onesidedly exploit others. However, short of the unanimity requirement, public choice theory risks to be a question-begging affair in view of Arrow's theorem concerning the impossibility of social choice. Even were alternatives for the simple majority rule are taken into account, it is easily forgotten that people's preferences are rarely asked for. Instead, people are offered choices between usually highly aggregated programmes or, as in the case of referenda, preformulated alternatives. Rousseau's objections against representation and for direct participation can therefore be maintained.
In formal-functional theories of democracy it is not the outcome of the democratic political process that is primarily important, but the process itself. In ancient political philosophy, one encounters the importance of this aspect of democracy in Aristotle's criticism of Plato's Republic. According to Plato all citizens should be subjected to a philosopher-king. According to Aristotle, Plato had thus misconceived the nature of the polis, which is not an extended family led by a master of the house, but a community of free men. In the polis, citizens are considered to be their own masters and to participate in the polis out of their own free will. Therefore, they also must have equal political rights, even if they are largely unequal in their capacities to make a contribution in politics. In fact, in Aristotle's ideal of a mixed state, the ordinary citizen's political role would be restricted to a right to vote in the collective choice for office between the members of an aristocracy.
The Aristotelian idea that democracy is related to an ethos of basic equality that nevertheless tends to create aristocratic excellence, is another strongly intuitive element in modern democratic rhetorics. It is also a part of some existentialist and communitarian theories of democracy. In an existentialist political theory, like Hannah Arendt's for instance, freedom is not understood primarily as being independent from others, but as being engaged in political life as part of a collective quest for the good life. The point of the political process is not so much its outcome, the beneficial effects on society of a decision democratically made, but the quality of the process in which that decision is made. Democracy should be designed to bring the best out of people as citizens. It is an institutionalisation of the political process through which the fullest possible discussion can be organised. Because everybody can speak out and can participate in the process, the moral responsibility of citizens for their community is appealed to. One can recognise this intuition in the popular argument that people should not complain about their government when they did not even take the trouble to participate in its election.
Existentialist defenses of democracy are usually more aristocratic, and communitarian ones more democratic. Participation is the central value from the communitarian point of view on democracy. In the communitarian vision engagement in politics is a form of community-creation and confirmation. Forming a community is not simply a matter of sharing the same views and values, it is primarily a matter of mutual recognition and willingness to communicate. It means being taken seriously, however different one's view and values may be, but also being ready to communicate and argue about them. Democracy can thus be advocated for its capacity to give people a sense of belonging to a community, its plurality notwithstanding.
In contrast to formal-functional theories, material-functional theories advocate democracy for its concrete beneficial effects. To this category theories of democracy like Schumpeter's, Dahl's and Sartori's belong, just as practically all the authors who follow an economic-constitutional analysis. Some of the latter think that restrictive rules on democratic decision-making should be adopted that may seem to be almost undemocratic in comparison to the usual rule of majoritarian voting. Others, however, have no problem with the fact that voters would try to use political institutions to serve their personal interests as much as they can. They do not even necessarily have to oppose purely redistributive interests, because it is to be expected that rich people will profit the most from collective goods. That poorer people will demand financial compensation for their electoral support to produce such goods, is not seen as problematic as long as rich people are still supposed to be better off than without the procurement by the state of the collective goods they most desire. Moreover, democracy is seen as an efficient system because of its market-like transparency. Everybody will try to get the collective goods that he or she needs most. Political entrepreneurs will try to build platforms of such preferences and use their power to further them because they want to stay in office. Moreover, as those needs will change over time, democracy can also be advocated because of its capacity to adapt to changes in demand. Finally, democracy is also important because it allows the best possible control over the management of the state, which cannot be trusted not to want to abuse its power for the personal interests of its managers. Because of all these widespread material advantages, democracies can also count on being politically stable. Extremist views will have little chance because they will disrupt the system too much and will be disadvantageous for the great majority of the population.
A non-economic material-functional theory was developed by Karl Popper in his The Open Society and its enemies. However, his theory is somewhat hybrid because it might also be constructed as representing a theory of democratic cognition in between its formal and its material variant. Popper admits that it is often difficult to know which collective choices are beneficial to society. However, democracy is a political learning device. If social problems arise and it is likely that something can be done about them via collective measures, democracy will be optimal in finding out what these measures should be. First of all, democracy's transparency will be helpful to collect relevant information about the problems, as well as suggestions for what might be done about them. The most promising ideas can then be tested, and, if they fail, be adapted or replaced by alternative ideas. Closed societies will tend to cover up problems, will refuse to confront them or confront them with inadequate means as they will suppress information concerning their failures and will therefore also have no incentive to do better. In other words, democracy is good as an evolutionary device, because it allows society to learn and to adapt to social change.
Popper's theory seems to mediate between a formal and a material theory of cognition of democracy, because, in conformity with his general epistemology, Popper denies that there is an intuitive or purely rational way to the truth, without, however, assuming that truth is a purely consensual matter. Via democracy a society can approach what is good for society by "trial and error". The reason why I nevertheless prefer to see Popper's theory as a theory of action rather than of cognition, is that consensus is, with Popper, not a value in view of social cohesion, but a value in view of the instrumental relationship of administrative devices to certain goals.
In formal-legal theories democracy figures as a means to protect supposedly pre-existing, "natural" freedom-rights of individuals. Politicians do not have to bother about some material social ideal these rights would be for. These rights exist on behalf of the individual in the first place, although it is certainly assumed that a society that respects them will be, generally speaking, also a more prosperous one.
An example of a formal-legal theory of democracy would be Locke's theory. It is true, of course, that Locke gave the right to vote only to property-owners and not to the poor because he was afraid they would abuse this right and rob the rich. However, that fear does not seem to represent an essential feature of his theory. Moreover, in place of Locke, one might suggest a modern theory, founded in a Lockean perspective, such as Nozick's. In both their theories, the sole tasks of the state are the establishment and maintenance of judicial institutions, a defense apparatus, and the organisation of just attribution of property when new objects of property arise and rivalling claims for their exploitation are made. Democracy allows public control on how state officials behave, and on how they spend taxes. Although formal-legal theories of democracy are often criticised, their instrumental conception of democracy as a device to control abuse of political power, is a standard element of textbooks on the constitutional law of democracy. This represents the rock-bottom or common heritage of all modern theories, regardless of how such theories may differ in other respects. Moreover, certain minimal societal and educational conditions can be included in a formal-legal approach, such as minimal social insurance and public education that helps people to provide for themselves in order to avoid their becoming dependent on others and
that provides the necessary understanding of liberty-rights and the moral ideals they are based upon.
In contrast to formal-legal theories in which democracy's only function is the protection of supposedly pre-existing freedoms and individual rights, material-legal theories do not think of equality only in a legal-formal sense, but in a material one. According to this approach, as defended by John Rawls, for instance, liberty should not be formal, but a real liberty.
The distinction between the formal and the material-legal approach is somewhat blurred, because the collective goals that democracy is supposed to serve can be formulated as promoting "democratic" social conditions in which rights will be better protected. The separation between "basically" material and "basically" formal legal-theories can be made, I think, depending on whether a direct link between political programmes and the protection of individual rights exists or not. Only an indirect link would exist, for instance, if political programmes would be justified as minimising crime by maximizing welfare. Even if such a relation would exist, it would have nothing to do, as in the case of a direct link, which may justify a minimum of material and educational support by the state, with the possibility of being a legally responsible actor. However, that does not imply a larger notion of "equal opportunity" as is often advocated as a principle of a democratic society. Nevertheless, a collective-redistributive element, a basic "equal opportunity", is nowadays associated with the notion of democracy even among proponents of the formal-legal approach.
Concluding this paragraph about the dimensions of democracy, it can be confirmed that democracy is a complex notion in which the following six ideas figure: correspondence between public opinion and government, public control on the use of governmental powers, participation in the democratic process, raising welfare by the production of democratically selected collective goods, respect for universal individual liberties and at least a basic equality of opportunity. Even though these ideas may seem like pretty familiar elements from the daily rhetorics of democracy, the complexity of the very notion is easily forgotten in discussions about the reform of democracy. Moreover, in discussions about theories of democracy, there is a natural tendency to think in terms of the "right" and the "wrong" theory. This is not the place to develop such a theory, but I would like to suggest that an adequate theory of democracy must be able to provide a coherent account for all these elements. For our purposes here, however, it will not be necessary to possess such a theory to evaluate rivalling practical proposals for the reform of democracy. All we need when doing so, is to take the complexity of the notion of democracy into account.
Apart from complexity there are two great problems inherent to all existing theories of democracy that are still waiting for a solution. The first problem is that making a choice of constitution would already presupposes a constitution for making that choice, whereas there would not seem to be a choice of population (the "demos" of democracy), nor a procedure that is neutral with respect to the outcome of the decision-making process. This is what I propose to call the "fundamental constitutional paradox" (in contrast to several other, special constitutional paradoxes ).
The second major problem has been known ever since Plato as "the paradox of democracy". What, Plato asked critically, if it would be decided democratically not to have a democracy. A question that, alas, has not remained a purely academic one. Within a liberal-democratic framework of a theory of democracy, in which democracy is a matter of a fundamental individual right to vote, the paradox is not difficult to solve as long as the decision is taken by some form of majority voting. A majority that would decide to take a away the fundamental individual right that is a part of the rationale of democratic majority voting, would violate its own constitutional limits. However, what if it is taken unanimously? If it is taken unanimously, the vote might be considered as not a vote within an existing constitution, but as a vote for a different kind of constitution. If it may not claim to be a democratic constitution in terms of all the different aspects that we have analysed above, it might nevertheless claim to be a perfect reflection of the constitutional will of its subjects. It would take a Rousseau to maintain that it is democratic to impose a constitution on people which nobody really supports, as he believed in forcing people to be free. However, even he would fail, because there would be no one to do the (forcing-)job when all agree to have an undemocratic constitution. This problem is not as purely academic as it might appear. If there is no solution to the first mentioned paradox, any group of constitutionally like-minded people might claim to be a demos. The question manifests itself in more practical terms as the problem of the rights of "undemocratic" minorities who would like to claim an exceptional status for themselves.
I will come back to these paradoxes when discussing Bruno Frey's proposals.
The new democratic institutions in Central and Eastern Europe have been functioning with moderate or little success. In fact, in many parts of Eastern Europe democracy is at a continuous risk of collapsing. In Central Europe, where democracy has taken off somewhat more successfully, it has nevertheless been demonstrated that there is quite a difference between establishing democratic institutions and developing democratic traditions and cultures. The latter takes time. There is a well-known relationship between economic prosperity on the one hand, and a positive attitude towards democracy on the other. In most of the former communist countries there has not yet been sufficient social-economic stability and progress to let the new institutions find a massive support in the population after the initial period of great and often exaggerated expectations. Accordingly, in comparison to Western and Northern Europe there is a significant difference in the voter turn-out as well as in the stability of the electoral support for political parties. However, there is also a downward trend in established democracies, although that decline is hardly spectacular. The average decline in participation in elections between 1950 and 1990 was from 82% to 76%, and even this small decline can be explained by factors which do not point to a disengagement from democracy. What has changed, however, is that voters become more and more volatile. This corresponds with an increase in issue- (as opposed to party-ideology) related voting, as well as to a decline in party-membership. Accordingly, one can observe a process of dealignment in the relationship between citizens and parties. This can again be explained by a decrease in social-economic and religious divisions in society on the one hand, and a growth in post-materialistic orientations of a non-religious kind on the other, as both are related to increases in wealth and education. The same process is referred to as "the end of ideology", a process that was perceived by Daniell Bell already at the beginning of the sixties. Bell, however, still saw congruency with a broad consensus concerning the desirability of the welfare state. Francis Fukuyama, without making the latter assumption that was, indeed, no longer true by the end of the eighties, nevertheless rephrased the same insight then as "the end of history". The similarity between Bell's and Fukuyama's visions was not often noted, because Fukuyama, as opposed to Bell, who wrote thirty years earlier, could present the same phenomenon as the result of the triumph of a particular ideology, namely liberal democracy. What remains then is a battle within the limits of that ideological framework of diverse interests which political parties try to organise. These parties are no longer, as ideological parties were, orientated towards the interests of particular, relatively stable social groups. Instead they operate as so-called "catch-all" parties, that try to organise mutual political support between diverse interest groups. Parties are, in this view, little more than organisations of political entrepreneurs who make a career out of politics.
Although some observers see these facts as foreshadowing a "democracy without a demos", such apocalyptic visions are not shared by the population at large. The support for democracy as a system has not declined in established democracies. However, what has declined considerably is the degree of support and confidence in political parties and in politicians. Dissatisfaction with the functioning of democracy in Europe has increased notably since 1990. Dalton believes this to be the result of people having become more critical since the fall of communism, because democracy can no longer be justified by simply pointing to the horrors of totalitarian regimes. I strongly doubt that the influence of the fall of communism was so direct. However, it may have reinforced the already existing trend of thinking less ideologically about politics and of voting in a more issue-orientated fashion. Another, not incompatible, explanation is the rise in the level of education which is positively correlated with issue-orientated voting and the level of education. Judging politics issue-wise instead of via simple ideological schemata, demands a greater political sophistication. The effect of this increase in issue-orientation is that political support becomes less diffuse, but also more volatile as issues and political programmes change.
There are other plausible links between a rise in the level of education, issue-voting and party dealignment. As people become more educated and politically sophisticated, they will become more critical, especially when it concerns matters they themselves have professional knowledge and experience of. In fact, an increasing number of professionals may be part of the explanation of increased issue-voting. Whatever one's ideological convictions, one's professional interests and ideals may override them. Because of the enormous rise in the average level of education, the intellectual and social distance between voters and politicians has decreased. However, this raises the question why a disengagement with party politics was not accompanied with a greater alienation from the democratic political system as such.
A likely reason which has prevented deeper alienation is, that citizens have found alternative ways to protect and promote their interests via other means than political parties. There has been, indeed, a "revolutionary" increase in unconventional forms of political participation, an increase that is again related to the rise in the level of education. The question can then be raised, why the combination of an increase in unconventional forms of political participation and a more critical attitude towards political parties and politicians has not ignited, as one would expect, a lesser belief in the legitimacy of the democratic political system as such. I have found no answer to this question in political science literature. Part of the explanation could be that people participating in "unconventional" forms of political action do not share the scientists' qualification of their action as such. They may think of it as just part and parcel of democratic politics. Another (part of the) explanation, could be that people remain satisfied with democracy and official politics simply because they do no longer expect so much from them since they have found alternative ways to tend to their personal interests.
In most countries, the distinction between conventional and unconventional forms of democratic political action has also become vague because political parties are bypassed by the government and the bureaucracy which entertain direct relations with organised interest groups. Together with the growing wealth and level of education of citizens, this has led to a significant degree of both a democratisation of society and a horizontalisation in the relationship between state and citizens. Governments are pretty powerless nowadays, unless they gain the support of significant organised interest groups. In fact, the role of government is sometimes restricted to organising discussions and negotiations between such groups in which it is relatively neutral as to outcomes, provided that they are supported by all or most of the groups involved. Moreover, government is rarely a unitary actor. The control of government over its bureaucracy is limited. Bureaucrats often have long-standing relations with organised interest groups. These relations are more important for their success than are the passing relations with politicians. In fact, this importance has increased as a consequence of European integration (see below).
In short, democracy has become more informal, participatory and direct than it was before. This explains how political parties could have become less important for citizens without increasing frustration with democracy as such. Therefore, there is indeed no reason to share any sort of apocalyptic vision about the future of democracy in its present form. On the other hand, this does not imply that there is nothing in the present state and the future of democracy to worry about or to improve upon. Evaluating transition in democracy, using its core ideas as listed in the last section, one can say that the dealignment from party politics is problematic in so far as informal political processes replace official ones. This will often imply a lack of public debate and a one-sided representation of interests. However, this is a consequence of the fact that political parties are seen as inaccessible or lacking in power over the administration.
The volume of the discussion on a European democratic deficit increased with the growth of European integration. To get a clear picture of the present stage of this discussion, one should consider the nature of the institutional design of European integration in the Treaty of Rome, some major amendments that have been made to it in the course of the development of European integration and, finally, the amendments which are in discussion at present. I will argue that we are at a point now where the process of a continuous renovation of the institutional design of the founding fathers of European integration has reached its limits. The reason why rebuilding instead of renovation is necessary now is, that monetary union represents both the last step of the creation of an internal market and the first step towards an unavoidable process of further political integration; unavoidable at least in the sense that economic integration will be endangered if no progress in political integration is made.
How can we characterise the original institutional design of the EEC? I would like to compare it, somewhat disrespectfully, to the organisation of national sports' leagues. In the beginning of the century there were usually only regional sports' organisations. As mobility between regions increased, an interest in national leagues also grew. Later during the century, financial interests became more and more important as some sporters and clubs professionalised. The national organisations are characteristically organisations of people with a central common interest, but with diverse group interests. In order to reconcile these interests, there is a national board that is relatively independent from the professional national clubs and the regional organisations of amateur-clubs. Board members are professional administrators or former administrators of clubs. In the latter case, they are usually generally respected figures who are not expected to return to their club in an administrative position. Boards of sports' organisations have their equivalent in the European setting in the Commission.
The board cannot take important decisions upon its own, but needs the consent of at least a majority of professional clubs and the amateur regions, who have a dominating position in a Council. However, they are not the only interest-groups that have to be taken into account. There are also the players-, trainers-, referees- and supporter-organisations. In the EU they have their equivalent in the different Committees. A difference with sports' organisations is, that the regions do not have the same status in Europe as they have in most national sports organisations. In Europe they are not represented in the Council but in another special Committee. The supporters' organisations, by contrast, sometimes have a position comparable to the EP. They have a right to be consulted or to consent to a limited number of issues like levies on entry-tickets for the national league, changing the rules of the game, safety regulations, etc. Finally there is a more informal, but very effective form of interest-representation for all in the different committees which deal with the preparation of official decisions and with their implementation, the -to use the European jargon - "comitology".
What we see both in the case of sports' organisations and the E(E)C/EU is, an organisation for negotiations between partial interests which are all centred around a central common interest: a certain sport in the case of sports organisations, economic integration in the case of the EEC. Of course, the EEC is better comparable to a superorganisation of different sports leagues, because it has its different branches and divisions of economic activities and matters correlated to them. Nevertheless, its main original characteristic was regulating common economic interests and finding a balance between different interest-groups in relation to that central interest. This is reflected in the fact that the Treaty of Rome was set up with different sections for different economic sectors or functions. An organisation that is set up according to this model is functionally adequate if it is focusing on a central common interest which is, as such, not disputed by the participants in the organisation. This is the so-called "regulatory model". It is unsuitable for a political organisation in which the goals are much contested. A regulatory organisation will turn political as more and more different sort of interests are envisaged by it until, finally, there is no more or less clear priority between the goals of the organisation any more. The EEC developed into the EC and from there into the EU, a changing of names that is very significant as indicating a shift form the regulatory to an increasingly political nature of the organisation. Whereas the goal was the creation of an internal market at first, more and more correlated matters where drawn in. Some of these correlations were pretty spurious, in fact, or, if they were not, it was not always evident that they needed to be regulated by Brussels. Comparing Brussels with a central sports' organisation again one should imagine the latter starting to regulate whatever is related to sports: safety and health, education, broadcasting, etc., all in the name of "fair play".
The important point I would like to make in this section, is that it is not possible to change a regulatory organisation into a political one gradually. Of course, one can stretch the regulatory model further and further, but there comes a point were nobody can be fooled about the political ambitions of the organisation. It is then that the central question: "who is the boss", will be asked, because it can no longer be largely disregarded as in a regulatory organisation, where fair interest representation is all that matters and a fairly broad consensus will always be needed if the organisation wants to continue to operate effectively. Have we reached the stage where nobody can be fooled any longer? Not yet, I think, although the aftermath of the Treaty Of Maastricht was certainly a writing on the wall. However, the effects of its most important element, the EMU, are bound to wake up anybody who is still slumbering.
The shift of the centre of political decision-making from national capitals to Brussels has stimulated a nationalistic reaction. However, with the exception of Denmark and England, Europe is rarely an issue in national elections unless entrance or European Treaty-changes coincide with elections. European elections are "second-order" national elections, in which national political parties "test their own relative popularity in the national arena". Public opinion is singularly uninformed about daily EU-politics. By contrast, organised interest groups have become increasingly aware of the Europeanisation of the political facts of life. They have been putting more and more energy in influencing European bureaucrats and MP's, as well as national bureaucrats operating in European institutions. National MP's have thus become less relevant for them. Conversely, national governments and bureaucrats have found that Europe is a very convenient scapegoat to outflank opposition at home. Ministers can pose as hero's who bravely fight for "national interests" in the arena of Brussels in which they were forced to make tragic sacrifices.
The lack of influence of national parliaments on EU-decision-making is an ever recurring complaint. Proposals to involve national parliaments more in the making of European policies, are made again and again. However, there are four structural reasons why their impact is bound to remain minimal. The first reason is, that national MP's realise that most European issues are unrewarding because they either have no publicity value or, if they have, organised interests groups tend to have more direct means of influencing governmental and bureaucratic action. In fact, standing organised interest groups need allies in Brussels and will not want to antagonize ministers and bureaucrats who act as national spokesmen in the negotiations in Brussels. Unless these interest-brokers seriously fail to support them, organised interest groups will not annoy them via critical questions asked by MP's of the national parliaments. The second reason is, that a more systematic involvement in European politics would demand a lot of time and effort form national MP's who usually have no direct experience with the very complicated and intransparent process of European policy-making. The third reason is, that governments need room to manoeuvre in Brussels' negotiations. They cannot act as messenger-boys there without losing credibility and prestige. The fourth reason is, that a greater involvement in European politics would be a painful confrontation for national MP's with their own growing irrelevancy and incompetence. For that reason, many of them prefer to ignore Europe as much as possible for that reason.
Against this background, it becomes more understandable why proposals have been made to involve national MP's directly in European politics by creating a European Senate (ES) in addition to the existing chamber of the EP. The ES, would have to take care of the respect for national interests and the subsidiarity-principle. Elections would be per country, just as is the case with the existing chamber of the EP. Once we would have an ES, however, the existing chamber should no longer be elected on a national basis, but on a European basis, even if a certain amount of regionalisation might be permitted. The proponents of this idea, claim that the EU might gain in democratic legitimacy in this way, and that it might bridge the chasm between national and European parliamentary politics. The proposal is, I think, not without merit. However, it also has considerable drawbacks. It would make full sense if the EU were a federal state in which the EP had a right of legislative initiative and could hold a European government fully responsible. However, although the EP has moved somewhat in that direction during the nineties, the relationship between the EP, the Commission and the Council of Ministers represents a very different sort of construction, that would be brought out of balance and become unworkable if an ES were added to it.
As explained, national interests are part of the bargaining game in the Council. That game would become an even more uncertain one than it already is since the EP can overturn the outcomes of these games via the cooperation- and the co-decision procedure (see below). Moreover, negotiations with the EP via the reconciliation procedure would also become a tricky game. The Council might, for instance, make great concessions in order to let the ES do the dirty work of rejecting the compromises. In fact, it is well known how difficult it is to reach compromises in federal systems like the USA and Germany, which can be more or less lamed because of the differences of interests between the two Houses of Parliament, or which result in laws with so many exceptions and loopholes, that they become almost pointless. If that is already the case in federal states properly speaking, one can imagine what the effect will be in the EU, which does not have a powerful government to remove blocks but only a Commission that can avoid cliffs at best. The Commission can only operate successfully if it does not get aligned too much with one of the other institutions. However, if the weight of the national factor would be reinforced via an ES, the Commission would also be more drawn into that direction also and would find the EP, formerly more or less an ally against the Council, more opposite itself. This may create more tensions than the system can bear, especially since the EP with the Treaties of Maastricht and Amsterdam acquired more power over the Commission (see below). In fact, the existing procedures are already so complicated and cumbersome, that the mere introduction of still another actor might already make decision-making almost unmanageable.
That the most important factor of the European democratic deficit is the absence of a European government in combination with a parliamentary responsibility of that government, is indicated by the fact that the discussion about the deficit has always focused on a lack of EP-powers. This discussion made perfectly good sense until the Treaty of Maastricht. However, ever since that treaty the EP has been very effective in exploiting the cooperation-procedure. The EP will gain even more influence after the Treaty of Amsterdam becomes effective, when a simplified and reinforced co-decision procedure will apply predominantly. Certainly there are areas, notably in the second and third pillars, where the role of the EP remains highly limited, although it was also extended by the Treaty of Amsterdam. The EP's role is furthermore restricted to consultation in important areas like agriculture and tax harmonization, whereas it has no formal role whatsoever with respect to common commercial policy. Nevertheless, the Treaty of Amsterdam reinforces the conclusion which Neil Nugent drew back in 1994: "In exercising some of its functions - scrutinising legislative proposals, for example, and contributing to the debate about future developments - the EP exerts a greater influence over affairs than do the more executive-dominated parliaments of some member states".
Can one conclude then that since the EP is far from powerless, the European democratic deficit is a myth, that could be expelled simply by informing European citizens better? No. Nugent's observation is probably correct, but it should be qualified by the fact that in most of these same countries that Nugent referred to, the domination of the executive over parliament is conditioned by the fact that the government is dependent on the political support of a majority-party or a more or less stable combination of political parties that form a parliamentary majority. In countries with multi-party systems, more or less elaborate governmental agreements endorsed by the parties supporting the government, may considerably limit the space for government manoeuvres. Understandably, where there is no such relationship, parliaments find much more space for dissent. However, the Treaties of Maastricht and Amsterdam have also extended the amount of control of the EP over the Commission. Its relationship would therefore seem to move somewhat into the direction of a more conventional parliamentary system.
While the Treaty of Maastricht constitutionalised the practice of a vote of approval before the nomination of the whole Commission, the Treaty of Amsterdam expanded the EP's right of consultation on the person to become the Commission's President to a vote of approval. At the same time the position of the President has been reinforced because Article 163 of the EU-Treaty (as consolidated after the entry into force of the Treaty of Amsterdam) provides that the Commission "will work under the political guidance of its President", whose "accord" with the governments of the Member States is required for the nomination of the members of the Commission. These provisions would seem to have pushed the Commission some way towards a parliamentary government. However, this shift of political gravity in the EU may lead to a disturbance of the institutional balance between its main bodies. This outcome of the Treaty of Amsterdam is all the more surprising in the light of the anti-integrationist reactions against the Treaty of Maastricht. However, this may be explainable from a view where these reactions are seen as the consequence of a democratic deficit as conditioned by a lack of powers of the EP. Nevertheless, it remains remarkable because the presidents of the two main countries of the EU (Germany and France) have repeatedly expressed their objections against the interference of the Commission with what they regard as national affairs. In fact, they recently put the matter on the agenda of the European Council. It is difficult not to conclude that political leaders in Europe have hardly had a grip on the negotiations leading up to the Treaty of Amsterdam or that they were simply unable to resist the pressures from the EP that skilfully exploits the myth of its impotence.
One important reason why the EP is able to do so is, that the news coverage of the activities of the EP is minimal. Even more than in the case of national parliaments, press reports are focused on spectacular incidents and scandals. The EP is maybe not that regretful about this as more press coverage would also show that the members of the EP are, on average, much more pro-integration than is public opinion in Europe. Worries about too much of a power concentration in the EU are prevalent. They are associated with a perceived threat of the EU to social and employment policies. However, this worry can also lead to support for an even greater expansion of EU-powers in these fields. Ironically, that support is given by the very same leading EU-politicians that are now trying to restrict the powers of the Council. In contrast to being re-elected, consistency is not a great concern of career-politicians.
More recently one has once more been able to witness the confusing dynamics of the proposals for reform. The European Steering Committee of the influential "Notre Dame" Association, chaired by former Commission-President Jacques Delors, has proposed that each of the European poltical groups should chose a candidate for the position of President of the Commission. Even more recently, this proposal was shown to be supported by a majority of Euro-MP's. The proposal would give, it was claimed, a boost to the legitimacy of Europe as a whole, a matter regareded as ever more urgent now that the imminent introduction of the Euro makes European citizens feel the impact of the EU in a most direct manner. In its appeal the Committee states that "the time has come to put a face to European democracy". The proposal makes sense in view of the fact that the Treaty of Amsterdam makes the President of the Commission co-responsible with the Member-states for the nomination of the Commissioners. However, the President will also need the agreement of the EP before the Commissioners can be nominated. Obviously, the position of the President is a much stronger one to negotiate from with both the Member-states, if he has been at least indirectly elected by the European electorate. However, his position may thus become so much stronger that national interests might come to feel threatened even more. In fact, the proposal would seem to go in the direction of the American system, except for the fact that the Member-states are also represented in the Council. Possibly the proposal was even made to have the Council replaced by an ES in the longer run. However, as long as that is not the case, a President of the Commission that would come into conflict with either the EP or the Member-states (or both) on important issues, would undermine the legitimacy of the EP further, and the more so as he would have an alliance with one of the parties in the EP. This association may also politicise and weaken his position within the Commission. The effect of the proposal can easily be that both the EP and the Commission become more internally divided and less inclined to make a common front against the Council. But if they do, the party-politically partisanship that would become connected to the presidency may antagonise Member-states considerably, and notably ones with a government with a different party-political background than the President of the Commission. Therefore, compensating the majoritarian drift in the EP and the Council by an (indirectly) elected President of the Commission risks to disturb the still existing institutional balances even more.
It can be concluded that the problem of the European democratic deficit is not so much one of a lack of powers of the EP anymore. The problem with the EP is, that its powers have little or nothing to do with democratic elections, because the election of the EP is a national affair with respect to its organisation and to the orientation of the parties and voters. Moreover, even if that were different, elections for the EP would not create a European government with parliamentary responsibility. However, as long as the primary allegiance of Europeans is still to their national states, a European federal democracy is unfeasible. Moreover, it makes little sense and it would seem to be even dangerous to change the present system with partial reforms towards a federal democracy without a perception among the peoples of Europe that a federal European democracy is an urgent necessity. If the latter would become the case later, as a result, for instance, of monetary union and its problems, a cleaner and more radical step towards it is to be preferred over a long period of systemic corruption of the present system. To think differently is to continue the history of "smuggling" European integration in as an unpopular, but nevertheless successful, game of top-politicians and bureaucrats. However, the aftermath of the Treaty of Maastricht should have taught the "smugglers" a lesson that this is no longer possible.
In fact, the great majority of academic writers would seem to have become very cautious. Some authors even find that the institutional balance on which the EU is based, is under threat too much already and that it should be restored and consolidated. On the other hand, one will also find an occasional author who is more passionate and who seems desperate that European integration has gone so far already but that Europeans now seem to refuse to take the decisive step from an "ever closer union" to a federal state.
A "majoritarian drift" in the EU was already highlighted in the scholarly literature soon after the Treaty of Maastricht came into force, notably by Renaud Dehousse. Assuming, correctly I think, that "states still enjoy a primary allegiance in international politics", he proposed to restore the institutional balance. It would become even more skewed if enlargement of the EU would go along, as it is bound to do, with a reduction of the number of Commissioners such that not all the smaller countries would have continued representation. To restore the balance, Dehousse proposed to make the Commission also responsible before the European Council of Ministers. He also proposed to give a significant number of states, and notably the smaller nations who would no longer have a Commissioner, a right to block proposals they see as threatening to their vital interests. Finally, he also advocated the delegation of powers to independent agencies which are insulated from the electoral cycle.
It would seem to me that Dehousse's first two proposals can only result in blocking effective decision-making in the EU. Double responsibility of the Commission would make it even more cautious of using its right of initiative, whereas the proposed veto-right would replace and weaken the still-existing individual veto-right of the Luxembourg-agreement of 1965, or be ineffective. Anyway, it would be a pretty blunt knife that, if it all, can only do something about a majoritarian drift in the Council. Its function in stopping that majoritarian drift next to the control that might be expected to come from the EP in the codecision-procedure would seem to be minimal, especially now that the Treaty of Amsterdam has created an obligation to publish the results of votes and explanation of votes in the Council in its legislative capacity (Article 151(3)).
In a more recent article Dehousse takes the view that the drift towards a parliamentary system, as sketched above, has been reinforced considerably by the Treaty of Amsterdam. However, that conclusion apparently did not make him repeat his veto-proposal. Much more surprising, however, is that he found the "regulatory structure" of the EU to have been reinforced in an apparently compensating fashion. Dehousse's view of the EU as a regulatory structure, a structure we discussed at the beginning of the last section, is that it is or should be concerned predominantly with market regulation and correlated matters, notably "risk regulation" (environmental policy, consumer protection, health and work-safety). Proponents of this view, which has been elaborated by Giandomenico Majone, advocate that with the exception of monetary union, the EU should basically not integrate much further than where the 1992 EC-programme has already brought us. It should not touch on matters which are sensitive in terms of national political history, redistributive policies, foreign policy and culture. Dehousse's and, more recently again, Majone's plea for independent agencies fits into this context. Independent agencies deal with politically more or less consolidated and technical policies and usually have functions which are half-administrative and half-judicial. Independent agencies are a model for making "comitology", the approximately five hundred committees of bureaucrats and experts that are co-responsible for the implementation of EU-directives and regulations, more visible and accessible to the public.
One of the arguments Dehousse brings forward for his thesis that the Treaty of Amsterdam also supports the regulatory model of the EU, is that the Treaty has increased the Communities' responsibilities in the field of risk regulation. However, that argument is not very convincing because the same treaty has simultaneously increased the powers of the EP in fields like public health and environmental policies. Dehousse argues that the transparency requirements, which the Treaty imposes upon the institutions, have the aim of facilitating the control of national parliaments over the behaviour of the representatives of their government in the EU. I do not see, however, why this should be of particular relevancy to the regulatory model, as the new regulations only apply to the Commission, the Council and the EP. Although they are certainly important for national democratic control, as far as it can go (see above), they may equally well enhance the power of the EP in relation to the Council as the transparency rules will give the EP important information about the positions of the member-states. That information can be used strategically in the reconciliation procedure.
The second argument Dehousse brings forward is that the subsidiarity- requirement has been given a more formal status such that the likelihood of a judicial annulment for a lacking or unconvincing argumentation at this point, would become greater. Although one must expect that the Court of Justice will be most reluctant to do so, the subsidiarity-requirement would seem to be much more relevant for non-regulatory policies than for regulatory ones, because the latter are, in practice, safe with respect to the requirement as long as any sort of advantage of central regulation can be adduced, which is usually not that difficult. For this reason Dehousse's argument can easily be turned around. The greater emphasis on the subsidiarity-principle indicates that the ambitions of the EU are more and more going beyond the regulatory model.
Whatever one may think of Dehousse's attempts to find support for the regulatory model, they are much too weak to refute the conclusion that the "majoritarian" drift he was so concerned about before the Treaty of Amsterdam was concluded, has indeed not been reinforced by it. However, more important than the question of the plausibility of Dehousse's thesis is, that major objections can be made against the advocacy of the regulatory model at this stage of the European integration process. First, the European budget has traditionally been spent on (re)distributive policies, initially agricultural ones, while later structural and cohesion funds were became important. Together they swallow up more than 80 % of the budget. Secondly, proponents of the regulatory model assume that a neat division can be made between regulatory-economic (and correlated) policies on the one hand, and (re)distributive and macro-economic policies on the other hand. However, the pressing need for tax harmonisation to avoid excessive competition between Member-States for becoming as attractive as possible for foreign investors, also applies to redistributive policies in so far as these determine the costs of firms. Moreover, it does not take much insight in macro-economics to realise what pressure monetary union will put on the need for redistribution between countries in the EU. Moreover, monetary union will boost the position of the EU as a world economic and political power-block. This rise in itself will add considerably to the pressure for creating a European federal state.
With respect to the idea of independent agencies it can be readily admitted that it might help considerably to make "comitology" more transparent. However, it is the EP which is at present the party most interested in that transparency. Dehousse and Majone also benevolently seem to ignore that independent agencies are still rather open to be "captured" by interest groups. This is remarkable, as Majone has a clear view of what makes European regulation so attractive, namely the absence of democratic influence. One can, of course, bring forward important arguments to limit democratic influences in the implementation phase of policies. However, to suggest that the EU's democratic deficit becomes less by limiting on democratic influence on implementation is a rather counterintuitive argument.
Finally, the neat division between technical and political questions is often difficult to make, as the BSE-affair has demonstrated. An alternative view would be that there is not so much a need for independent agencies, as there is for a political transparency of matters which are highly linked with expertise. But that is nowadays the case with almost all policy matters. If one agrees with the latter thesis, one would have to conclude that a modern democracy requires politicians with sufficient expertise and independence to save politics from the illusion of the apolitical nature of technocracy. In other words, instead of arguing against democratisation of the EU because it compensates some deficiencies of national democracies, as long as it remains relatively undemocratic, one had better think of models that would improve democracy on both levels simultaneously.
In view of the actual history of the EU, which is a go-stop-and-go- again history, but nevertheless one of an ever closer union indeed, one can imagine that supporters of that ideal can get pretty emotional in the face of the "contradictory" situation that we are in. On the one hand, now that monetary union is so near, a federal EU would seem to be just the next logical step. On the other hand, opposition against further integration has grown at the same time. Such a development is understandable. An ideal is often attractive only as long as it remains an ideal. However, it also represents what marxists used to call a "contradiction" between the objective and the subjective factors of integration. It is in this context, I believe, that one should understand a remarkable recent article, an outcry almost: 'Europe: The case for Statehood'. The article was written by Frederico Mancini, a fact which is remarkable in itself as he is a judge of the Court of Justice. Following Mancini, one might speak of a new 'trahison des clercs' with respect to the true cause of European integration as it was originally foreseen by the founding fathers of European integration. Their programme would have been one that was to lead to a federal state in the longer run. Mancini's accusation is directed towards unnamed "academic and judicial circles which only a few years ago drummed and fifed for the speedy political integration in Europe". He argues that their realignment with the nationalist reaction is based on the false idea that a federal Europe would be dependent on the emergence of a European nation. However, there are many federal states in the world which unite several nations. Mancini mentions Belgium and Switzerland in Europe, and Canada, India and South-Africa on the other continents. He completely disregards that, with the exception of Switzerland, they all represent very troublesome cases that seem to prove the non-viability of federal statehood without nationhood. He continues to argue, that a federal Europe is a necessity to prevent a reversion of the process of European integration and the values it stands for. Mancini sees European integration as a means to influence the world economy in such a way that globalisation will no longer undermine social cohesion and the belief in democracy in Europe.
Mancini's argument seems to go directly against the vision of people like Dehousse and Majone. What to think of this argumentation in support of something like a "fortress Europe"? I think that Mancini's argumentation could have been much stronger if he had considered the dangers of an absent political union in combination with the need for an intra-European solidarity as a consequence of monetary union. On the other hand, would such a state have sufficient economic clout to shield itself from the competitive forces of the world market? I strongly doubt it. Moreover, are we really waiting for a United States of Europe as another global actor? This is the interesting question which Harvard-professor Joseph Weiler puts forward by way of a reply to Mancini.
Weiler does not take the position that a federal Europe would be impossible and unviable. On the contrary, he is fearful of its possible "success". Referring to the multinational states that Mancini had mentioned in support of his thesis of the possibility of multinational states, Weiler asks: Do "such examples not demonstrate that those states are not prone to the multiple abuses of the organic nation state? .... The dangers are inherent in statehood and that is why the Community has such a civilisatory potential". Weiler, no doubt, has a point against Mancini's Euro-centric view. One might add another, which is is that Mancini's concern about the erosion of national democracy does not take into account that a federal Europe would increase the dealignment from party politics, as European parties would be more distant and bureaucratic than national parties.
Nevertheless, in defense of Mancini one should also notice that Weiler disregarded Mancini's concern for the continuity of European integration even at its present level. For Weiler, the EC represents a form of containment of the dangers of statehood. However, if Mancini's fears are justified, integration might go in reverse and the dangers of national statehood would become reinforced. Would it not be more consistent then, also from Weiler's point of view on statehood, to look for a form of democratic political organisation in which both national and federal statehood are bypassed?
The difficulty of bypassing both national and federal statehood is indicated by the blatant inconsistency in most proposals for a Europe of "different speeds" or a "variable geometry". Why not also apply these ideas to nation states, instead of treating them as the territorial rock bottom of European integration? Bruno Frey's proposal, in contrast, does not suffer from such inconsistency.
Frey called his model 'FOCJ' (functionally overlapping competing jurisdictions). He assumes communities as basic territorial unities that can decide democratically if and for what functional needs they will become a member of larger political organisations. In fact, for some functions, as in the case of schools, communities may be subdivided or only create an obligation for its individuals to choose between different possibilities. Becoming a member of a larger organisation does not imply that one is legally bound to remain a member.
Frey's proposal represents a rather radical bottom-up view of democracy. It breaks away from the model of the modern sovereign state in a much more dramatic way than the present EU. The EU is a political system that is approaching a confederal state as far as "high" politics is concerned and that is somewhere in between a confederal and a federal state for "low" politics. However it is still a unitary, hierarchical political system in the sense that sovereignty is either allocated at the European or at the national level, be it that this allocation is not always the same for all countries in so far as they were allowed to 'opt-out', for instance, from the EMU. By contrast, in Frey's proposal there would seem to be no state with a definite territory anymore. One might argue that in his proposal communities have taken the place of the sovereign state. However, Frey does not allow communities a full constitutional autonomy (see below), whereas the citizens of communities are free, in principle, to move from one community to another and thus give up their citizenship for another one. It would also be false to compare communities with sovereign states from an empirical point of view, because communities are much less independent than states and are under much greater pressure to cooperate with other communities. The best image of the administrative structure Frey proposes is that of a dynamic patchwork. Frey's arguments for such a system are primarily economic. He argues that, under certain conditions, the distance between the preferences of people and political performance will be minimal, both qualitatively and financially speaking.
The first condition is that exit is possible, both for communities from larger unities and for individuals from communities. The second condition is direct democracy. Direct democracy does not preclude representation. One may vote by proxy and proxies will remain unavoidable, most of the time, for regular formal public debating and decision-making. However, the empowerment of a proxy can be withdrawn if it has not been granted for a specific period. Therefore, representatives can no longer abuse the trust that they have been given as much as they can in the present system, in which a vote for a person or a party is irrevocable for a number of years. The third condition, is that each functional organisation operates on its own tax base. In this way the possibility will be created for judging comparative performance and for real competition for members between public organisations.
The effect of these three factors is that public administrators will have a different incentive structure. Present-day bureaucrats have no interest in being cost-efficient and service-minded. Their salaries are dependent on the size of the bureaucracy they lead and it is in their interest to expand it instead of making it smaller. Because of these three conditions and their effect upon FOCJ-administrators, different functional jurisdictions will also tend to cover economically optimal territories.
Frey's proposal would also seem to be an improvement in terms of the different dimensions of democracy that were distinguished above. First, the chance that a larger majority really agrees with actual policies, is enhanced. This is because people do not cast global votes anymore, but vote for each function separately, and because their empowerment of proxies is not necessarily for a definite period. Moreover, voters will have more influence because they can vote with their feet or at least threaten to do so, either figuratively speaking, when they have choices between different suppliers of collective goods at one and the same spot, or literally, by moving to a community they find more attractive. The risk that such a great influence of voters will make decision-making very complicated, is much smaller than it may seem, because the FOCJ-system promotes like-minded people to cluster together in the same communities. Therefore, it will also be easier to vote by proxy, whereas the greater closeness to and trust in proxies will allow one not to bother too much about political matters which one knows too little about or is not interested in.
Secondly, although the proposal takes differentiality of individual preferences as its starting point, it furthers the rational content of public policies, notably via a greater controllability as a result of functional differentiation (including the fiscal aspect), and via institutional competition. In fact, one might argue that Frey's proposal is an operational version of Popper's idea of the experimental nature of democratic public policies. Rationality is also enhanced, because Frey's proposal allows experts a greater chance to participate in politics, as politics, if divided over functional areas, can be a part-time job. As we know, most politicians are a poor match against the expertise that is concentrated in the bureaucracy. The number of (largely self-made) "specialists" among MP's is usually just a tiny fraction of MP's. Frey's proposal increases the chance that bureaucratic expertise will be controlled by real experts on the side of the voters and that real issues, matters which are contested among well informed people, will be at stake in politics. Finally, not only are career-politicians often way out of touch with the realities of social life, they are also much more inclined to cheat, lie and betray their voters, because staying in office is their primary concern.
Thirdly, Frey's proposal meets democratic demands better with respect to its republican-participatory aspect. There are two reasons for this. One was already mentioned: it becomes easier to be a part-time politician. A functional differentiation in the political system will no longer demand huge party bureaucracies. Via Internet electoral platforms can be built in a relatively short time, whereas propaganda and communication with the electorate is cheap using that same medium. Moreover, nothing prevents a FOCJ system to have a public broadcasting system that is responsible for informing the electorate properly and for organising political debates. Another reason why the FOCJ-system would stimulate participation is, that the functionalisation of politics makes it possible to become active in fields one is both interested in and knowledgable about. By implication, the drift towards more informal forms of issue-politics would decrease as it becomes much easier to have direct access to the formal political arena. The advantage of such integration is a restoration of the representative nature of politics. For instance, both "greens" and polluting industries will be forced to take part in a public democratic confrontation and will be less capable to impose their will via extra-parliamentary or bureaucratic channels.
Fourthly, if we judge Frey's proposal from the point of view of promoting people's interests, our judgement must also be positive. One reason was already been given: like-minded people, which usually also have more interests in common, will tend to cluster together. The other reason is, that functionalisation will meet to a certain extent differences in the intensity of interests. Voters are usually only concerned with a few issues and will therefore be more politically active in relation to those platforms, whereas greater activity will usually lead to greater success in politics. By contrast, the votes of the indifferent in a particular field will no longer count, as they will not bother to vote. This will usually imply a lower voter turn-out. However, this is deceptive. In the present system a vote will count as support for a whole party programme, whereas the voter is usually only interested in one or a few issues. The real voter turn-out may be much higher in the FOCJ-system. People who do not vote because the issues they are interested in are too diffusely represented in present-day party programmes, will be able to trust that the FOCJ-platforms they are voting for, if successful, will not trade their standpoint on e.g. defense against a concession with respect to their view on e.g. monetary policies. However, will this not imply that the advantages of log-rolling will be absent and that the formation of governmental majorities will become much harder? Frey argues that such practices are not impossible when political circuits are differentiated. I do not find that defense very convincing. A better argument, it seems to me, is that log-rolling will be indeed more limited, but certainly not impossible within a functional domain. Moreover, this restriction may turn out to be an advantage in terms of the rationality of compromises. In so far as political differences of opinion are not concerned with ends, but with means, compromises may gain in rationality because alternative policies can be put in a logical order for experimental testing. If one policy fails to meet specified ends, an alternative can be tried and its cost-efficiency be compared with its predecessor. The turmoil of undifferentiated policies is often the cause of a lack of continuity and learning in public administration.
The fifth and the sixth dimension of democracy, its formal and material legal aspect, raise questions about Frey's proposal. If communities are the basic political unities, what guarantees are there in his model that basic individual rights and democratic institutions will be protected? How will the right for basic material support for the needy be protected? Frey admits that a constitutional provision may have to be made to prevent the rich from moving to places where they would pay the least taxes for this purpose. However, this implies that his proposal presupposes a constitutional framework that surpasses the communal level to begin with. A common constitutional minimum of statehood, including its military and judicial functions, would seem to be a precondition to let a FOCJ-system function adequately. Nevertheless, apart from an incidental restriction on free-riding, Frey's model solves the "fundamental constitutional paradox" to a large extent via the exit-option.
However, it was not yet been mentioned that Frey also assumes that the EC's "four freedoms" apply everywhere. Presumably, he would also endorse including fundamental human freedoms into the common constitutional package. But why would that be so self-evident? What about communities where all members have undemocratic preferences? In view of the greater likelihood of like-minded people to cluster together, this would not seem to be an altogether academic question. In fact, what we encounter here is the strong version of the paradox of democracy. I would think that liberal paternalism could be restricted to the demand that "deviant" communities will not allow ethnic discrimination or torture. Not limiting preferences would also apply, in my view, to the four freedoms. As economic freedoms, they are powerful enough to protect themselves, because they will make it very unattractive to live in communities that do not respect them. But if these communities nevertheless remain attractive for some people, I do not see why they should be excluded from the political competition. In my opinion, allowing this liberal form of "apartheid" is the best answer to the increasing problem of extreme cultural pluralism. It also represents a more radical solution to the "fundamental constitutional paradox". That solution might also apply, of course, at a subcommunal level, such that a certain section of a community with its own rules for the public domain, might be reserved for people subscribing to a certain belief or ideology.
The proposed solution of the fundamental constitutional paradox still does not go far enough. Constitutional preferences can change over time. Constitutions often contain special rules requiring qualified majorities to change constitutional rules. In fact, in some constitutions, for instance the German one, rules are found which forbid change of certain rules altogether. Even liberal communities can differ considerably such that members would feel a need to protect themselves against change via constitutionalisation. This would reduce the chance of their having to move out and find another community that is more to their liking. However, since the FOCJ-system stimulates like-minded people to cluster together, they would have little need for special protections against constitutional change. The only protection one would need is against the unlikely case of change to a non-liberal constitution. This could be created by obliging a community turned deviant, to pay the costs of all those who prefer to move out on account of this change. If they cannot, the change of constitution would be invalid. In the case of non-liberal communities' constitutions, a rule should be applied that their constitution is invalidated if they can no longer pay the costs of natives who want to move out.
Adding these legal-constitutional features to Frey's model, I would also like to propose a change of name for that amended model (but not only for the sake of its name): SODC-model, the model of second-order democratic constitutions. The FOCJ-model is a second-order constitutional model already in so far as it allows functional constitutional variation within its territory. It represents an order of legal orders. However, in contrast to the SODC-model it does not provide a solution for the problem of protection against constitutional change or the problem of non-liberal-democratic constitutions.
I have not dealt with several other problems that might be raised in connection with the FOCJ-model. There is no space to deal with them here, and I do not feel much need to do so as Frey discusses them adequately himself. Nevertheless, the question will be raised: how utopic is the FOCJ-model? A sarcastic answer could be: less so than the SODC-model. It can be graciously admitted that both proposals are radically different from present practice, although Frey refers to several examples in Switzerland, which demonstrate the viability of FOCJ-like practices. However, I believe one might move somewhat into the direction of the FOCJ-model by supporting the idea of a Europe of the regions. If the regions were to become somewhat more of a countervailing power to the nation-states within the EU, the pluriformity and flexibility of the integration process might increase considerably. Under present technological and administrative conditions, regions are attractive as political and administrative units. All over Europe one finds a tendency to deconcentrate powers from the national to the regional level, while at the same time communities cooperate more and more on a supra-communal level.
European integration prompts border-regions to cope with increasing needs for cooperation. At the moment, however, such cooperation is still very difficult because regions are often so tied up in the national administration that special regimes between border-regions will create new problems for intra-national regional cooperation. In other words, there is a need to find new and functionally more flexible borders which cross-cut both national and international boundaries. By increasing the ability of regions to do so, one might gain more experience with the advantages and disadvantages of FOCJ-like forms of administration. Moreover, if regions would gain in autonomy, it would also become more logical to replace much of the national representation in Europe with regional representation. In that way much of the present imbalances in European representation might be removed. There would thus also be less reason to fear that big nations will dominate smaller ones, because then much of the diversity of interests within nations would no longer remain concealed. A greater autonomy of regions would also expose the considerable amount of transfer-payments that take place between regions in each nation, and would thus reduce the present resistance against supranational transfer-payments in so far as transfer-payments can be justified at all. Finally, once citizens and administrators become more used to a more pluriform and functionally differentiated pattern of public administration, it is likely that they will also allow more pluriformity in the public administration on subregional levels. At the same time, an increase in regional identity of people would reduce the dangers of nationalism without being replaced by regio-nationalism, as regions would be in greater need of cooperation than nations. Even if this is only because of a much greater mobility than between nations, cross-cutting allegiances between people of different regions would be much stronger than the existing ones between people of different nationalities. In this way, the peoples of Europe might both become or stay very different from each other and still grow into a true European community, as they used to have before the rise of the nation state.