Lund University SVT 004 Department of Political Science Autumn 2004 Supervisor: Mats Sjölin Defining Democracy in the European Union Assessing the procedure and the substance Johanna Severinsson Abstract The aim of my essay is to look at the organization of democracy at an international level, here within the European Union. By looking at the democratic organisation of the European Constitutional draft and the relation between procedural and substantive directives of democracy therein I am able to see what political behaviour the Constitution expresses in turns of creating a “government for the people” or a “government by the people”. By using historical, empirical and international institutionalism as a theoretical framework I also set out to analyse the impact democratic conditions have had on the relation between substantive and procedural directives in the European Constitutional draft. My findings where that the procedural directives are flexible and the substantive directives not specified but left for interpretation and adjustments to conditions and traditions in the member states. I also found that the constitution set out to meet sereral democratic problems described within contemporary democratic thinking i.e. “the power to act”. In order to salve contemporary democratic problems there is a need to look at the relation between substantive and procedural approaches to democracy. Keywords: European Union, Procedural democracy, Substantive democracy, Democratic conditions, New Institutionslism.
1 Table of Content
1.INTRODUCTION ______4
1.2 Motive for Choice of Subject ______5
1.2 The Purpose and a Presentation of the Research Questions ______5
1.3 Definition of Key Concepts ______6
1.4 Theoretical approach ______6
1.5 Earlier research ______9
1.6 Methodology and Material ______10
1.7 Delimitation ______12
1.8 Disposition ______12
2. DEFINING DEMOCRACY ______13
2.1 A procedural approach to Democracy______13
2.2 A substantive approach to Democracy ______14
2.3 The Relation between Substantive and Procedural approaches to Democracy ____16
3. DEMOCRATIC CONDITIONS WITHIN CONTEMPORARY POLITICAL ORGANIZATION IN THE EUROPEAN UNION ______18
3.1 The Procedure of Democracy is no Longer Considered to be Stable ______18
3.2 Global Processes have Dislocated the Political Substance______20
4. THE EUROPEAN CONSTITUTIONAL DRAFT ______21
4.1 The Origin and Development of the Constitution Draft ______21
4.2 The Democratic Bases of the Union ______22 4.2.1 Procedural approaches to Democracy in the Constitution Draft ______22 4.2.1.1 The general principles of EU law ______22 4.2.1.2 Who governs? And their procedural directives ______24 4.2.1.3 How are then decisions made? ______25 4.2.2 Substantive approaches to Democracy in The Constitutional draft ______27
2 4.3 Discussion about Contemporary Democratic Conditions influence on the European Constitutions Democratic Organization ______29
5. CONCLUSIONS ______31 REFERENCES
3 1.Introduction The theory and idea of democracy changes constantly. What democracy is and how it should be organised varies with different outlooks of life and in different democratic theories. (Dahl 2003 p. 13pp) The theory and idea of democracy are seen as products of different societies in a historical context responding to conditions, problems and possibilities. A review and renewal of democracy take place constantly. (Olsson 1999 p. 20pp) Today key assumptions of democratic thinking and practice are being questioned. A rethinking about the nature, form and content of democratic politics is taken place and the nation state as the suitable democratic arena is challenged. (Held 1995:ix pp) Hans Agne (2002) writes that one of the great political challenges today is to develop forms [to be read as arrangements ] for democratic decision-making that will work on an international level, to develop democratic forms [to be read as arrangements ] that formulates according to specific political contexts. For instance, representative democracy was developed within the political context of the nation state and referred to the democratic possibilities and limitations of the nation state. He finds that today there is a need to understand democracy in an internationalised world. (Agne I SOU 2002:82, p.59) The European Union (EU) is an example of democracy spread to an international level and it is seen as the most internationalised organisation in history. Its development has transformed the nationalistic democratic form [to be read as arrangements ] as the citizens of the Union can, and do invoke EU law against other individuals and their national governments. (March, Olsen 1998 p. 967p) Today EU is moving towards applying a European constitution, in purpose to make EU more democratic, transparent and effective. (Presentation to citizens 2004 p.5) A problem that arises here is: what kind of democracy is the constitution striving for? While studying the organisation of democratic decision-making, one end up in one of the oldest democratic debate where to put the emphasis; on substantive or procedural aspects of democracy. Is it enough that democracy is defined as a procedure (i.e. that the decision-making process is designed in a special way, for example that decisions are made after the principle of majority) or does it need to amplify a substance, a result (i.e. indicate what a democratic decision should contain)? (Lundquist 1991 p. 64) This conflict concerns the status of the principles of democracy: should they be procedural or substantive? Between these two aspects of democracy there is a conflict. For example: Procedures (such as majority rule) can produce unjust outcomes (such as discrimination against minorities). Substance principles in a democracy on the other hand can limit the democratic decision-making process (by implying a certain result that must be sustained). (Janda (ed) 1995 p.39p) Different democratic forms [to be read as arrangements ] put the emphasis differently on the dimension between procedure and substance.
4 Where does EU end up between the two democratic extremes in the capacity of being an international democracy? 1.2 Motive for Choice of Subject
I feel that the study of policy has a large relevance for the understanding of today’s policy making and, therefore, the limits and possibilities of democracy. By studying the European Constitutional draft and, the decision-making process and the content within I can reach an understanding of the future of democracy in Europe. I find the relation between substantive and procedural aspects of democracy to be intriguing, because it will give an indicator on if we will have “government for the people” or “government by the people”. In the essay I will be looking at what defines a procedural and substantive approach to democracy and look not only how they can be interrelated but also how they can conflict. By breaking down the inherent democratic structure as described in the constitutional draft I will be able to see where the emphasis is put between substantive and procedural aspects of democracy. By relating this emphasis to democratic terms and circumstances for political organization in Europe I can get an understanding of the influence of the democratic limits and possibilities in contemporary democratic organization. 1.2 The Purpose and a Presentation of the Research Questions The main purpose of my essay is to look at the organization of democracy at an international level, here within the European Union. This will give me an indicator for how democracy can be organized on an international level. As a subsequent purpose I would like to see if contemporary democratic conditions have had an influence on the organization of democracy at the European level. In order to achieve my purpose I will examine following research questions: - How is democracy organized within the European Constitutional draft in terms of putting the emphasis on substantive and procedural directives? - Can we see a connection between contemporary democratic conditions present within the European Union and what the relation looks like in the constitutional draft and between democracy’s emphases on procedural or substantive directive? In order to clarify my purpose and research questions I will below define some key concepts. Thereafter I will describe the theoretical approach I will be having throughout the research. After that comes a description of earlier research that has
5 been conducted within the areas I am studying. This will thereafter be followed by a discussion of the methodology and the material I came to use. 1.3 Definition of Key Concepts
A constitution is a text that contains the fundamental rules of a State or a group of States. The rules answer several questions. How is the division of powers arranged? How do the institutions work? What means can be used to implement policies? What values are upheld? What are the citizen’s fundamental rights? (A constitution for Europe 2004 p.3) The European Union is a supranational organization of 25 European states (since May 2004), holding approximately 453 million citizens. The member states co-operate on certain political and economical issues giving away parts of their sovereignty to the Union. It has been described as an international organization and as a confederation but should rather be seen as a unique character. The purpose of the Union, as it was created by six member states in 1952, was to rebuild Europe after the Second World War and to eliminate the possibility for another war to occur. It started as a European Coal and Steel Community in 1952 followed by a common market with fee mobility concerning products, capital, services and people in 1958. (http://en.wikipedia.org/wiki/EU) To give a definition of the concept democracy would be to express a normative and ideological standpoint and it would undermine the purpose of the essay. The word democracy originates from the Greek word demos meaning people and the word kratos meaning power, rule. (Held 1999 p.13) Who are the people? What is rule? Who rule? And how should they rule?, These are questions that will be answered differently, depending on which theory of democracy one chooses to look from. Within democratic theories there are substantive and procedural positions, some theories emphasize a procedural approach over a substantive approach to democracy. These two approaches to democracy will be presented and discussed in chapter two. Below is a short rundown of what they are referred to as, in order to give a direction. Substantive democracy looks at the substance in democracy. It is concerned with the content, result and outcome of democracy. Procedural democracy looks at the democratic procedure, the form and shape of the democratic decision-making process. 1.4 Theoretical approach To choose a theoretical approach according to a relativistic viewpoint is a question of what framework one finds gives the best picture of the world in order to be able to explain an occurrence. It has nothing to do with finding the truth. (Alvesson, Deetz 2000 p.50) It is rather about giving a picture of an occurrence. A theory is in this way a system of a joint of concepts that demonstrate how concepts are related
6 to each other in order to help one understand, predict and explain the meaning of the occurrence. (Patel, Davidson 1994 p. 20) The opposite of this relativistic viewpoint is objectivism, meaning how to seek the truth. (Lundquist 1993 p.151) I find myself to be somewhat of a critical relativist, when I think the truth can, in some aspects, be sought and proved, like the fact that the earth is round. My theoretical frame will be that I will use new institutionalism as my approach. The approach will help me illustrate how institutions affect the democratic society and visa versa. This approach agrees in many aspects with my own mind-set and corresponds with the purpose of my paper. In many aspects a structureagent relation. The analysis of the way institutions interact and how they affect our society are as old as the greek philosophers. (http://en.wikipedia.org/wiki/New_institutionalism) Up until the 1950s an institutional approach dominated the field of political science research, however at this time a behaviouralistic revolution came to change the institutional approaches dominans by critizising its lack of explanatory tools for how the way humanbeings act. (Marsh, Stoker 2002 p. 90) In the 1980s a new institutionalistic approach came to break out within disciplines like political science, international relations and economics. This new institutionalistic approach, viewed as a social theory, focuses on instititions 1, the way they interact and the effect they have on society. The theory looks at how institutions influence human behaviour through norms, rules, and normative and cultural-cognitive frameworks. An institution is however itself seen as an actor that has been socially constructed and is able to feel pressure from the broader environment. Institutions are also seen as persistent across time and difficult to change. (http://en.wikipedia.org/wiki/New_institutionalism) The approach looks at how political life is organised and recognizes that individual choices are influenced by a social context. Politics is in this way subordinated to exogenous forces, such as contextualism where factors such as ideology, culture, geography, economic conditions, technology and class affect politics. These factors are themself not significantly affected by politics. Political systems are affected by human behavior at the local level, which makes micro behavior have macro consequences. (http://hypatia.ss.uci.edu) A dilemma for new institutionalism is that the definition of an institution is running the risk of so called conceptual stretching, including everything that guides political behaviour, and to many aspects of political life. There is then no clear distinction between norms and institutions. (March, Stoker 2002 p.100pp) New institutionalism demand a critical stance towards theory when no theory is ever true, but the approach emphasise that you can learn from comparing several theories. (Marsh, Stoker 2002 p. 108) Institutions can form social values. Political democracy depends on the arrangement of political institutions, and on economic and social conditions. Institutions, human action and the social context all influence each other and work upon each other in complex ways. (March, Olsen 1984 p. 741p)
1 An institution is a group or an organisation created by a group of humans. An institution can be real or/and abstract. From: http://en.wikipedia.org/wiki/Institutions . 15 october 2004.
7 New institutionalism is far from coherent or consistent and has many different frameworks in itself like a rational choice, normative, historical, empirical, international, sociological and network strains. Some of the strains intervene with each other. (Marsh, Stoker 2002 p. 95pp) The normative framework in new institutionalism is looking at how the individual is acting on norms, values and obligation under normative systems, set out by political institution. Institutions are seen as to constrain individual choice. Individuals are expected to act out of duty or an awareness of what one is “supposed” to do. (Scott 2001 p. 57. Wikipedia encyclopedia and Lowndes in March, Stoker p.100pp) Normative analyses are rare in international relations much due to conflicting rules and power relations. (Krasner in Jönsson, Tallberg p.6). A rational choice framework of new institutionalism disagrees with this normative famework saying that institutions are human constructions where agents (or states at an international level [ like EU ]) use institutions to ‘structure choices’. (Blyth in Marsh, Stoker 2002 p.300) This stance finds that institutions emerge and survive, because they fulfil significant functions for the individual actor who is affected by these institutions. (Jönsson, Tallberg p.4) EU as a democratic level according to this stance could be a response to functional requirements responding to collective problems. Historical and international frameworks of new institutionalism both develop the strain of normative and rational choice by having both value-based (from the normative stance) and game-theoretical (from the rational choice stance) approaches. (Jönsson, Tallberg p.5) Historical institutionalism looks at how institutions ‘structure choices’ that institutions give content to agents’ preferences and thereby constrain their action, but the agents also use institutions to ‘structure choices’. (Blyth in Marsh, Stoker 2002 p.300, 309) An empirical framework also builds on normative and rational-choice and analyse the institutions impact upon government performance. A network framework argues that common values are the ones that certify network stability but that consensus is the product of a constituting process of re-negotiations.(Marsh, Stoker 2002 p. 97) Using this stance I can look at patterns of informal interaction between Commissioners in the Union and how they shape political behaviour. Sociological institutionalism on its hand argues that political institutions can be designed in order to cultivate desirable values within society at large. A study within this stance could look at what kind of significance a EU Constitutional draft could have on the citizens. An international framework look at how the behaviour of states is steered by structural constrains of international political life. These structural constraints can be both formal and informal. (Marsh, Stoker 2002 p.96p) I will be using a mixture of the historical, empirical and international stance of institutionalism, looking at how the choices that was made regarding the institutional design in the European Constitutional draft will have an influence on the future decision-making made by individuals; I will be analysing the institutional designs practical impact upon government performance and show how structural constrains of international life have steered the behaviour of states.
8 1.5 Earlier research
Earlier research literature about democracy in the EU has been focusing on the perspective of democracy (Andersen & Eliassen, The European union: How Democratic Is It? ), the concept of legitimacy (Beetham & Loyd, Legitimacy and the European union ) and citizenship (Rosas & Antola, A citizens Europé: in search of a New Order ). Many of the researchers have carried out a modern policy research with focus on the actor’s political influence and the unity of the policy networks and their maneuvers. The study of policy has a large relevance for the understanding of today’s policy making and, therefore, the limits and possibilities of democracy. There has only been a few empirical researches conducted, and they have been field studies over specific policy areas. (Olsson, Jan, 1999: 10pp) Bengt-Ove Boström (1988) reviews influential democratic theoreticians (Joseph A Schumpeter, Alf Ross, V B Macperson, Robert A Dahl, Herbert Tingsten, Jörgen Westerståhl and Leif Lewin), looking at their discussion of whether the concept of democracy should be concerned both with the form of decision-making and the content of the decisions. Boström finds that the emphasis varies according to ideological perspectives and that there is a need to look at the idea structure that lays behind the debate of a procedural or substantive democratic approach. (Boström1988 p.2,11p) Research about the procedural and substantive aspects of democracy has been carried out by scholars studying democracy and democratization. (Bell, Staeheli 2001 p.175pp) Lincoln Allison talks about the difference between theories of democracy and theories of democratization, how studies about democracy have been performed in a normative manner through empirical studies, pushing for a certain concept of democracy, like liberal or pluralist democracy. Studies of democratization have on the other hand looked at the conditions of democracy such as the social inputs and political outputs, to find out what kind of democracy people in newly democratic countries want and what might be appropriate or workable for them, making them political scientists. (Lincoln 1994 p.8-27) Looking at the discourse of substantive and procedural aspects of democracy through a historical perspective, democracy seems throughout the 1950s to the early 1970s to have structural constraints, requiring the presence of key social and economic factors, there where thereby a somewhat substantive side of democracy present. In the final two decades of the 20 th century this came to change when liberal models of a political and economical organisation prevailed over other ideological models. Fukuyama talked about “the end of history”, where western liberal democracy had become the final form of human government. Democracy as a discourse treated formal institutions and procedures as the foundation for democratic society. The role of substantive outcomes and emerging political identities in shaping the processes of democratization was virtually ignored. The adaptation of institutions to specific geographical–historical contexts was also ignored and the procedures of liberal democratic governance where seen as universally applicable. Many researchers offer a procedural definition of democracy. Huntington, as an example, views this definition as being the only
9 definition that is uncontroversial, clear and common sense. (Bell, Staeheli, 2001 p.175pp) Today there is critique towards procedurally focused concepts of democracy, claiming they are ill-suited to bring out and explain the changing connections between the legitimacy of formal institutions, the social equity of political outcomes, and the emerging shape of civic identity. Today among academics and policy-makers there is an increasing importance to measure more encompassing definitions of democracy. (Bell, Staeheli, 2001 p. 175pp ) David Held also raise this question and suggests that we need to broaden and deepen our concept of democracy beyond the realm of surface procedures, by looking at context-specific factors and how they contribute to the democratization of formal institutions and civil society. (Held in Bell, Staeheli, 2001 p.175pp ) Robert Dahl (2003) also looks at the contextualism of democracy, that justice and the common good are culturally dependent, to a specific group of people and their historical experiences. He finds that the substance of democracy in the shape of values and interests are different at different places and at different times. (Dahl 2003 p.467pp) He feels that the democratic process needs to be adjusted to the values specific for the political culture and the political institutions of the specific country. (Dahl 2003 p.299) They indicate an increasing interest in substantial factors in the concept of democracy. An explanation for the lack of research regarding substantive factors of democracy is that it is difficult to analytically evaluate the “democratic-ness” of the outcomes set out by substantive theories of democracy. Evaluating procedures and institutions is seen as more reliable. (Bell, Staeheli 2001 p. 180pp) The characteristic of studies of substantive democracy is that they focus on defining substantive democracy and rights and they do not look much at the process of selecting rights in practice. (Zucker 2004 p.74) In relation to this one can see that research about how legitimacy should be reached within the Union, lack the study of social legitimacy and of substantive democratic factors and legal commentators are mostly stunned and analytically silent about the importance of substantial democratic factors. (Haltern 2002 p.4pp) 1.6 Methodology and material
When it comes to the design of the research you should carefully consider what method you are going to use, this since different methods generate different data.(Momsen, Kinnaird 1993 p.40) I will be conducting a qualitative method by carrying out a description. With a description one describe something; this requires a well worked out purpose to be able to stick to knowledge that is relevant. (Ejvegård 1996 p.30p) Qualitative research on the other hand is associated with interpretive epistemology. This will highlight the constructed, dynamic and evolving nature of social reality by saying that science cannot be objective, it cannot establish universal truths or exist independently of values, beliefs or by concepts created to understand the world. The researcher collecting the data in this light colours the study with his personal views and experiences.(Marsh Stoker, 2002:201pp) My descriptive study contains of describing the emphasis laid down
10 on the procedural and substantive approaches of democracy in the European Constitutional draft. And thereafter give an explanation for why the emphasis is put where it is. In one aspect my study is besides descriptive the also explanatory, trying to explain why the emphasis is put where it is in the draft constitution. By examining the democratic conditions as a variable I try to find an explanation. The result will depend on the representation of the material. To collect material appeared to be rather demanding. There is plenty of material about democracy and the EU but it was difficult to find material, which discussed democracy in the EU from a procedural and substantive approach, or even to find material, which discussed democracy from either a substantive or a procedural standpoint. I seemed to have used the “backdoor” somewhat frequently, looking for the expressed relation between substantive and procedural approaches to democracy in between the lines in text books discussing in general terms the discourse of democracy. I looked through several databases and skimmed through articles. The databases I used where links from different Universities. Preparation of search words took place continuously. Many times it turned out to be a quite frustrating process. Yet the more I found out about the subject and its problematic, the more I found material and better search words. To help me better grasp the content of the European Constitutional draft I looked at both the original draft that was formed and handed out in June 2004 and different summarized versions, like a summary performed by EU officials of the articles that relate to the decision- making process. I choose this to be able to compare and structure the decision- making process and content of the Constitution better. I used the summarised versions as a measurement of validity. The question of validity is important in all research; you need to ask yourself if you are studying what you are intended to study. (Patel, Davidsson 1991 p.85p) I chose to look at the democratic design in the EU with the help of using two theory- based approaches to democracy: a substantive and a procedural. By looking at the relation between these two aspects of the democratic ideal as it is expressed in the European constitutional draft I can reach an understanding of how political organisation is changing and being shaped in an international context. Throughout the research I ran into several problems. Problems like; is this study about democracy or democratization? As I see it, it is a study of both as they intervene. Democracy is a condition developed by democratization. (Karvonen 1997 p.11) This can be viewed in the below described definition of democratization. Democratization refers to the transition to democracy from other forms of rule, as well as to the processes within democratic societies that extend political participation to new arenas and new communities. (Craig Calhoun. Dictionary of the Social Sciences .) The European Union is very much a new arena for political participation and a new community developed by democratic societies.(Diamond 1999 p. 275) Their interrelation can also be seen as researchers have studied the conception of democracy in the European Union by conducting studies of democracy and democratization as will be viewed in the research section of the essay.
11 1.7 Delimitation The question on how we should understand the relation between the democratic forms of the decision-making and the substance of the decision is controversial. I will not give an account for how different ideologies view this problematic. Shortly, I will just mention that within theories like for example deliberalism, theorists favour different emphases on substantive and procedural conceptions of democracy. As delimitation I have chosen to leave out the European institutions: the Court of Auditors and the European Central Bank. I motivate this by referring to the EU institutions; the European Parliament, the European Council, the Council of Ministers, the European Commission, the Court of Justice, as the ones that make up the institutional framework for all areas of cooperation and the ones that shall act within the limits of the Constitution. They are the institutions that promote the union’s values, advance its objectives, serve the interests of the citizens and the member states and the ones that ensure the consistency, effectiveness and continuity of its policies and actions. (Article I-18) As another delimitation I have chosen not to touch on the subject of the democratic organization in the EU as it was organised before the prepared Constitutional draft, consequently to put a focus on the future development of democracy in the EU. I have only shortly described where the democracy originates from to give an entry into the subject matter. 1.8 Disposition
In the next chapter I will be looking at how democracy can be defined using a procedural and substantive approach to democracy. I will also be looking at the relation between them. This will be followed by a description of the contemporary conditions that faces democracy within a EU and how the procedure of democracy and substance no longer is considered stable. Thereafter I will describe the democratic organization of the European Constitutional draft in terms of looking at procedural and substantive directives. In a followed discussion I try to find an explanation for why the relation between substance and procedure looks like it does in the European Constitution draft. In the final section I give out my conclusions followed by ideas for further research.
12 2. Defining democracy Democracy is both as an idea and as a political reality disputed. Throughout the history of democracy old and new approaches have mixed leading to unclear interpretations and internal conflicts. Democracy as a term originates from the Greek word demokratia , meaning people and rule, power. The rule of the people is not a clear-cut concept. There is a problem of defining what rule is? Rule of? People? How one chooses to define democracy differs. This is apparent in democratic theories, how give out different ideological persuasions about what democracy is and thereby how political life should be organized. (Held 1999:13) The researchers studying different theories of democracy have been analysing the rules or components expressed in the theories’ definition about what democracy is. The rules express what form the democratic government shall take as well as if democracy should strive to attain a certain substance. The relationship between the form and substance of democracy gives expression for an old democratic debate, theoretically as well as practically.(Dahl 2003p.18, Boström 1988 p.11f) They are seen as two aspects of the democratic ideal and make out two theory based approaches to democracy: procedural (or formal) and substantive. (Bell (ed) 2001 p.175pp ) Whether the emphasis is put on the procedural approach of democracy or the substantive approach of democracy will have consequences for how we shape our democracy both theoretically and practically. Whether we obtain “government by the people” or “government for the people” is decisive in where we lay the emphasis. (Karvonen 1997 p.14) I will now discuss procedural democracy and substantive democracy in terms of how they work and what they assume. I will make references to the strengths and weaknesses of both conceptions of democracy and give an explanation for how they can conflict with each other and how they can be a condition for each other. 2.1 A procedural approach to democracy
A procedural approach to democracy evaluates democracy in terms of institutions, rules, practices of governance and participation. It believes democracy is a form of government and is concerned with how decisions are made by looking at the procedures that enable the people to govern, vote in elections, running for public office and meet to discuss issues. (Janda (ed) 2003 p.33 ) In this approach, a state and the community it governs are held to be democratic if it has firmly established democratic procedures. (Bell (ed) 2001 p.175pp ) The rules and procedures by which decisions are reached are of greater importance than the outcome of the actual decision itself. (Berry, 2002 www.law.howard.edu/).
13 A procedural view of democracy sets out three principles that describe how the government should make decisions. The principles in its turn derive from three questions. - Who should participate? All adults within the boundaries of the political community should participate in governmental decision-making, and be allowed to vote. A universal participation principle . - How much should each participants vote count? All votes should be counted equally according to the principle of political equality. - How many votes are needed to reach a decision? Going by majority rule, the group should decide what the majority of its participants want to do. Majority principle. However, these principles can only be applied to governments in a direct democracy. In an indirect democracy citizens choose representatives, to make decisions for them, which leads us to a forth principle: - The elected representatives should respond to public opinion and do what the majority of the citizens’ want, regardless what, and are responsible to them. Responsiveness principle . (Janda (ed) 2003 p.33pp) Kenneth Janda (2003) finds that the term “government by the people” is closely related to the procedural approach to democracy. (Janda (ed) 2003 p.39) The strengths with a procedural approach to democracy are that the democratic process can equip citizens when it is a distributive justice of resources (knowledge, influence, power, education). (Dahl 2003 p.252, 272, 258p) Robert Dahl (2003) quotes Rawls with saying it is impossible to reach a perfect and just procedure when there are no perfect and formal justice, leading to that all interests cannot be considered. (Dahl 2003 p. 153pp) A weakness is that the democratic process can lead to an unwanted result and injustices when it gives priority to certain groups and their interests. The majority can also be wrong and act according to own interests. Another negative Dahl express is that some citizens are less; articulated, effective and organised which makes them less visible and heard in the democratic process. (Dahl 2003 p.252, 272, 258p) This critique opens up for a look outside a procedural approach to democracy, to a substantive approach to democracy. 2.2 A substantive approach to democracy
A substantive approach to democracy evaluates democracy in terms of fairness, equality and justice. The focus is on the outcomes of democratic governance and practice. There is a concern over what the government does. Democracy lies in the substance of government policies. (Janda (ed) 2003 p. 33) The approach argues that structural inequalities and forces of exclusion limit the extent to which individuals can participate equally, if at all, in the formation of a civic and social collective identity. Democratic procedures alone cannot overcome these inequalities and exclusions. Certain democratic principles and results must, therefore, be incorporated in government policies. (Bell 2001 p.175pp) Many, in
14 fact, argue that the operation of procedures that presuppose social equality may actually work to heighten inequality, as political agents have differential abilities to mobilize political resources to their benefit. Advocates for a substantive theory of democracy do not advocate the abandoning of the formal procedures and institutions of public governance, they more emphasis a need for supplement. (Bell 2001 p. 175pp) Substantive democracy addresses many of the concerns raised under procedural democracy, especially when related to equality, participation and majority rule. (Nelson.1997 www.civilnet.org) Substantive theories of democracy give out normative concerns about outcomes. The substantive approach to democracy looks to contextualism, how values and interests are different depending on where you are and depending on what social group you belong to. True democratic institutions must adapt and respond to their geographical– historical contexts and institutions and practices must be designed to allow various social groups to achieve political, economic, and social equality. (Bell (ed) 2001 p. 175pp) The core of substantive principles is embedded in the amendments of the constitution like the Bill of Rights. Other examples of substantive policies are: freedom of religion, freedom of expression, the right of minorities and protection against discrimination. Among substantive theorists there is disagreements on whether the government must promote social rights (adequate health care, decent housing, quality education) and economic rights (steady employment, private property) in order to be called democratic. (Janda (ed) 2003 p.33pp) Strength in the substantive approach to democracy is that the result emphasis has a tendency to reduce complex social and economic issues by addressing the underlying social issues that effect society.(Box (ed) 2001 p.11) Arguments for the strength of substantive democracy can be find in the view that a persons will is complex (and often collide with several modes of willing) and not always direct, when a person’s preferences usually do not express all of the conditions that are needed for her or his freedom. Theoretical investigation of willing can thus be unavoidable in attempting to define freedom. (Zucker 2004 p.69) The critique towards the substantive democratic theory is that it does not give out clear criteria of what makes a government democratic. (Janda (ed) 2003 p.38) A procedural democrat finds that substantive democracy gives out undemocratic implications by assuming that there is a way, independent of democratic procedure, to determine what outcomes are genuinely democratic. It is said to be no logical way to find the appropriate metric of social justice. Only a democratic process, not theoretical analysis can define rights. (Zucher 2004 p.67pp) The place to look for fairness and justice is in the procedures installed to salve these conflicts. Another weakness with substantive democracy is that people disagree and always will about substantive principles of social justice. (Zucher 2004 p.74) Substantive rights are also said to lack consensus, something procedural democrats say the democratic process provide. (Zucher 2004 p.67pp) A list over what are important democratic conditions can turn into a restriction, this when you are to take a position towards political conditions that you are not familiar with since before. (SOU 2002:82 p.65pp) To put result politics in front of the formal process, could lead to a guardianship. (Dahl 2003 p.252) A guardianship is negative in the sense of the big
15 demand that it puts on the knowledge of the guardians and in the sense of that this supervision counteract with our skill to develop moralistic capacity. (Dahl 2003 p.125) 2.3 The Relation between Substantive and Procedural approaches to Democracy Dahl finds that the debate and conflict about the relation between the democratic process and substance has been exaggerated and characterized by misunderstandings and obscurity. He chooses to look at their connections , like how certain moralistic and juridical rights like freedom of speech and freedom to meet are essential for the democratic process and how the democratic process in its turn equip the citizens with rights, freedoms, possibilities and resources in the life of politics. Therefore the opposition between the process and substance is not there. (Dahl 2003 p.153pp, 160, 272, 467pp) Dahl also finds that equal distribution of resources between citizens is a necessary condition for the democratic process to work. (Dahl. 2003 p.153pp see also Verhoeven 2002 p.4pp) That without moral or constitutional limits the democratic process will become contradictive since there is a need for institutional guarantees for certain values and rights, and not only formal procedures. These values and rights should also be reflecting the countries values and habits. (Dahl 2003 p.266pp) Ulrich Haltern (2002) also finds that in order for participation to be meaningful, if even possible at all, substantive conditions must be met like respect for human right, the rule of law and communication in the public arena. (Haltern 2002 p.4pp) Procedural principles are also said to have substantive content. For example, majority rule is practiced above minority rule it must be for moral reasons and this gives expression for a value such as free and equal “personhood”, which is the same value that maintains substantive principles. (http://www.pupress.princeton.edu) Zucker (2004) finds that democracy consists of “rule by the people” and “rule for the people”. Rule for the people includes rules that maintain economic justice, dealing with the fundamental substance of democracy (including the necessary conditions for economic justice). Rule by the people deals with the procedures of decision-making. (Zucker 2004 p.73p) Lundquist (1991) talks about how there is a problem of legitimacy in the relationship between substance and procedure, when ones legitimacy is seen to be inadequate. Citizens do not tolerate any kind of procedure just because it leads to a wanted substance and vice versa. (Lundquist 1991 p. 68) To reach legitimacy you therefore need both process and substance. This is something Habermas looks at, how formal and social legitimacy presuppose and reinforce one another, where social legitimacy refers to a broad, empirical societal acceptance of, or loyalty to a system and formal legitimacy gives validity in a juridical sense to a given system. And in political participation the active citizens also compose a political identity, which is vital to reach legitimacy for a political system. In this sense social legitimacy joins requirement with formal legitimacy. (Habermas in Verhoeven, 2002 p, 8pp)
16 After looking at the relation between substantive and procedural democracy and how they can be seen as a condition for each other we set out to look at the times they can come in conflict with each other. The conflict concerns the status of the principles in a democracy: should they be procedural or substantive? Indications of conflicts may have been made in the explanation of the weaknesses of the both approaches but below comes a more verbose explanation. Drawing an appropriate line between issues that ought to be subject to procedural democracy and those that ought to fall under substantive democracy is not always easy. People often disagree. There is a conflict if democratic principles should prescribe the substance of law or if they should only prescribe procedures that makes laws. (Janda (ed) 2003 p.39). There is a conflict in the demand to protect the citizen’s rights and the demand that a majority should be able to reach any decision it wants. This is a conflict of legal security, when the legal state demand that citizen’s rights are to be protected (substance) and about the authority of the people, that the majority should be able to reach any decision it wants (procedure). But there is also an inherent conflict of equality (substance) and freedom (process). Both are necessary in a democracy but they can come in conflict with each other. (Lundquist. 1991 p.67p) It also raises the question if we should develop a system of stability (substance) or if we are to give the individual the possibility to grow and to reach self-realization (procedure). (Macperson 1973 p.51 in Lundquist 1991 p.69) A society-oriented perspective on society Lundquist argues does assume that people have a collective identity, whereas an individual oriented perspective on society assumes that the autonomous individual should not be submitted to collective needs. Minority protection is a significant institution in the individual oriented perspective. (Olsen 1990 p.28pp in Lundquist 1991 p.70) There is a conflict in that procedures (such as majority rule) can produce unjust outcomes (such as discrimination against minorities). (Janda (ed) 2003 p.39) If we where to limit the majority rule to include a two-thirds majority it could help, but it can also turn into that the minority rules instead. (Janda (ed) 2003 p, 33pp) Substantive principles could constrain the democratic decision-making but also make a democratic decision-making possible. This when substantive principles could give the citizens recourses that makes them able to participate. There is also a conflict in making the process structurally available to the citizens without compromising the effectiveness and integrity of the process of governance. (Ndulo p.105) There is also a conflict in political agents having different abilities to mobilize political resources to their benefit, which may lead to that procedures that assume social equality may actually work to heighten inequality. (Bell 2001 p.175pp) There is a conflict raised if racist expressions in public should have legal curbs (substance directive) or if freedom of speech should prevail. Is it more democratic to assign restrains to law-courts or should it be left to organs of representatives to decide what constitutional democracy requires to bee democratic. (Michelman. www.bostonreview.net)
17 3. Democratic Conditions within Contemporary Political Organization in the European Union According to the new institutionalistic approach, institutions are socially constructed and feel pressure from its surroundings. In this light it is of interest to look at the contemporary democratic conditions that are inherent within the European society and to see how they have affected the procedural and substantive approach to democracy and the relation between them. Since the view on democracy is seen as a product of historical societies and their specific conditions, problems and possibilities we need to review the changes that occur within our society. In this essay I put the emphasis on the European society and on the democratic procedure and substance. As Jan Olsson (1999) affirms, the traditional democratic organisation is changing within our society and with it the distinction between the democratic procedure and substance. Today not only the substance for democracy is changing but also the procedure of democracy is seen as unstable and variable. (Olsson 1999 p.177) I have chosen to separate the changes to at first describe how the procedure of democracy is no longer considered to be stable to, thereafter, describe how global processes have dislocated the political substance. 3.1 The Procedure of Democracy is no Longer Considered to be Stable National democracy and state sovereignty, two concepts that constituted the underlying conception of democracy in the 1900-century are being challenged. (Olsson 1999 p.20pp) Held finds that the conception about sovereignty as non- divided, exclusive, unlimited and as an eternal form of public power, shaped in an individual state is dead. (Held 1987 p.421pp) This since the hierarchical state no longer describes power relations in the society. The state is said today to be to small to salve big problems and to large to salve small problems. (Della Sala 2001 p.1pp) Today there is also a great interdependence between nations when we are highly affected by democratic decisions made in other nations. This has lead to that the nation decision-making body’s ability to be consequent, responsible and robust is being questioned. (Held 1997 p. 411p) Political questions demand problem salving on an international level, which leads to democracy being internationalised. The future prospectus of states is no longer based on there own, internal experiences. This has opened a need for a new political system with new routines to make it possible to grasp political experience. (Stenelo 1999 p.242)
18 The chancing conditions in democracy are especially evident in Europe where the EU member states no longer are the only power centre within its boarders. (Held 1987 p.421pp) The member states in the EU are transferring parts of their legislative authority to the EU . (Olsson 1999 p.53pp) Making the legislative authority complex and it difficult to find out how is responsible for political decisions and therefore to demand political responsibility. (Schmitter 1999 p.933) Therefore, the criteria for the democratic process need to be questioned and reevaluated. (Elofsson, Rindefjäll 1998 p.12p) Democratic systems are moving from government towards governance. In 2000 the EU Commission stated that the debate about institutional reform in the EU was intrinsically linked to that of governance. EU represents a quantum leap in democratic governance on an international scale. (Della Sala p.13pp) Governance itself is a questioned concept with many versions; this is how UN defines it and the version EU uses: Governance is the sum of many ways individuals and institutions, public and private, manage their common affairs. It is a continuing process through which conflicting or diverse interests may be accommodated and co-operative action may be taken. It includes formal institutions and regimes empowered to enforce compliance, as well as informal arrangements that people and institutions either have agreed to or perceive to be in their interest. (Della Sala 2001 p.1p) One can see that the relationship between the state and the community has changed, when other actors than the state is now responsible for arranging social service and to achieve legitimacy. As an effect civil society and market forces are given a gained role in politics. (Della Sala 2001 p.1pp ) Jan Olsson (1999) expresses that politicians today mostly deals with the comprehensive issues of politics. Civil servants have top responsibility for specifying and carrying out policy, for the political input and output arena. He finds that the EU gives expression for elitism and the authority of bureaucracy. The European Commission, who is a bureaucratic organization, has the formal power when it comes to taking initiatives. Another example of the authority of bureaucracy is the European Court, who resolves interpretation twists. Government by citizens, as a value in democracy is therefore put to challenge. (Olsson 1999 p.56ff) The democratic process is in some extents out of the hand from the politicians, as well as it is controlled by elites and run by bureaucrats. Yet the changes in the democratic procedure to have grown to be controlled by other actors than the politicians are not only due to a transformation of authority to the EU. Democracy have also increasingly been coloured by market concepts with elements of shrinking the government’s service. This has led to that the civil servant is increasingly responsible for political input and output at the expense of the government’s influence. Another consequence is that citizens are treated as customers and rational self-maximizers that compete with each other. (Box, Marshall p.6pp) Box finds that citizens have a politically and morally week position when decisions already have been made. Public managers who are working in narrower fields are seen as less concerned with face-to-face interaction with citizens and more focused on performance. As a consequence people are in
19 lesser extent looking to models of democratic practice to salve public problems. (Box (ed) 2001 p.10pp) Democracy is also looked upon in the terms of efficiency. A decision-making process should now be effective. (Elofsson, Rindefjäll 1998 p.16p) Hans Agne finds that within international politics, within the EU there is a problem of representation when every country receives only one vote, a vote administrated by the country’s government. In this way, only one interest from every country is represented in international assemblys. The minority groups and oppositions from a country are not represented. (Agne 2002 p.23, 59pp) The lack of representations for minority interests leads us into the debate whether substantive directives have gained emphasis in today’s politics, or not. 3.2 Global Processes have Dislocated the Political Substance Is there a gaining emphasis on substance? Olsson seems to think so when he talks about how the emphasis on substance in democracy has increased, something he says can be seen when the political “authority to act” has been drawn towards specific political areas and become a larger component in the debate about what democracy is. Olsson thinks the increase on substantive democracy has occurred at the expense of having a government by the citizens. (Olsson:63pp) He thinks that the substance of politics is in focus in the EU while the rules of the game for democracy is being adjusted after the continually changing circumstances of European politics, that the substance of politics works as the steering wheel for democracy. He points out that legitimacy is increasingly given when democratic results are showed just as much, if not more than if a decision was following certain democratic procedures. (Olsson) Ulrich Haltern (2002) finds that the EU fails when it comes to store social meaning and archiving social legitimacy. (Haltern 2002 p.4pp) He finds an explanation for this problem in that EU is a pluralistic society where values and social positions are of puzzling variety and fluidity. (Haltern, 2002 p. 29) Box (2001) on the other hand finds that the introduction of market concepts in many ways hinders a return to substantive democracy and also meaningful ways for the individual to affect policy. (Box (ed) p.6pp) That the managerial state does not address the underlying social issues that affect society. Racism, poverty etc. that are substantive issues, have become individual problems instead of collective problems. He also finds that society itself is being reconstructed and that the social order is based more on rationality and exchange rather then reason, learning, obligation and history. (Box (ed) 2001 p.10pp) It seems like it could be debated whether the concepts of substantive democracy have increased or not. Karlsson (2002) writes about how the precise substance of democracy within the EU is controversial. (Karlsson 2002 p. 10pp)
20 4. The European Constitutional Draft 4.1 The Origin and Development of the Constitution Draft The route to the constitution is paved by The Treaty of Rome1957, The single European Act 1986, The Treaty of Maastricht 1992, The Treaty of Amsterdam 1997, The Treaty of Nice 2001 and The Draft Constitution 2003. (A constitution for Europe 2004 p.1) For the past 15 years the European treaties have regularly been modified after being reviewed at intergovernmental conferences. The method for reviewing the treaties behind closed doors as well as only by the leaders of the government of the member states has heavily been criticized. The criticism was meet in 2001 at the European Council meeting in Laeken, where they came to form a convention in purpose to make the European Union more democratic, transparent and effective. The convention brought together representatives of the government of the 15 member states and 13 representatives from the 13 candidate countries, representatives of the European parliament and of the European Commission, representatives of the national parliaments, 13 observers from the Committee of the Regions and the Economic and Social committee. There were also representatives of the European social partners and the European Ombudsman. The mandate of the convention was to provide a response to various questions on the future of Europe, like how to provide better guarantees of democracy, transparency and effectiveness . To organize the work of the convention a Praesidium, composed of twelve leading characters was set up to help guide the work. Plenary sessions and working groups were set up over a period of fifteen months. All of the conventions’ sessions were open to the public via an Internet site where all documents were published. The Internet site also had a forum open for organizations to post on. (Presentation to citizens 2004 p.4p) Extensive consultations were organized with organizations representing the civil society (trade unions, employers’ organizations, academic circles, NGOs etc). (A constitution for Europe 2004 p.2) Jens-Peter Bonde (2004) has questioned the political and democratic process of the Convention when applicant countries had no influence over the process and when Euroscepticals was not allowed to observe or participate in the work in the Praesidium. (Bonde, 2004 p. 280pp) The European Constitution consists of four parts: Part I describes the Constitutions fundamental provisions that defines its values, its powers, its objectives, its institutions and its decision-making procedures. Part II contains the Charter of Fundamental Rights. Part III deals with the Union’s policies and describes the functions and policies of the European Union. Part IV presents the final clauses. (A constitution for Europe 2004 p.4) The constitution gives a presentation of the distribution of competences and a simplified set of legal instruments and procedures. Today the constitution remains a treaty since it has not yet been ratified by the Member States. In some states popular consultation is
21 going to be needed. A modification of the constitution will require the unanimous agreement of all the Member States and, in principle, ratification by all. The purpose of the European Constitution is to deepen the democratic and transparent nature of its public life, and to strive for peace, justice and solidarity throughout the world. In the foreword of the constitution we can read: Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice. (The foreword of the constitution) 4.2 The Democratic Bases of the Union
How is then democracy organized within the European Constitutional draft? The two conceptual frameworks described in chapter two are inherent in Constitutions and by looking at the emphasis laid out between the two democratic concepts within the European Constitutional draft we are able to get an indication of if the EU is moving towards “rule by the people” or “rule for the people”. By looking at how decisions are made, who are left to govern, vote in elections, running for public office and meet to discuss we are looking at procedural directives in the European Constitutional draft. The procedural approaches to democracy as expressed in the Constitution are described below. After this description comes a presentation of the substantive approaches to democracy expressed in the Constitution, where I look at content driving directives outlining a certain democratic results that needs to be obtained in the decision-making process. At some points remarks are made to where substantive and procedural directives seem to collide in the constitutional text. To clarify, I will be using my theoretical democratic approaches; procedural and substantive democracy, when I look at the empirical content of the European Constitutional draft. 4.2.1 Procedural approaches to Democracy in the Constitution Draft 4.2.1.1 The general principles of EU law The general principles of EU law expresses what rules are to apply in the decision making process of the Union and thereby how and when the union should act. The general principles of EU law in the Constitution expresses rules like; Union law has primacy over national law, member states must assist one another, the democratic process is to be based on representative and participatory democracy. Another general principle of EU law is that the Union’s Competences are to be divided into three areas. (Articles I-10 to 13, I-5(2)) These principles all expresses procedural directives by stating how and when the democratic process in the EU should work .
22 These democratic principles have within them several procedural directives for example; according to article I-51 on participatory democracy the Institutions have an obligation to maintain an open, transparent and regular dialogue with representative associations and the civil society. Article I-51 as well as I-50 on representative democracy should also be read in combination with Article I-8 on European citizenship. This article includes several procedural directives by stating who has the right to vote, to stand as candidate in elections to the European Parliament and in municipal elections; the right to petition the Parliament and to apply to the European Ombudsman etc. Article I-46 also a relating article initiate a citizens initiative, making it possible for European citizens to participate in the decision making process if they gather one million signatures from a number of member states. By gathering one million signatures they can submit a proposal on matters where they believes that a legal act of the Union is necessary for the purpose of implementing articles in the Constitution. The Commission can however decide whether to respond to the request to present a proposal or not. The Constitution divides the Union’s competence into three categories; exclusive competence, shared competence, and areas of supportive action. (Article III-11) Exclusive competence refers to that the union acts alone on behalf of all the member states, areas includes; competitions rules for the internal market, commercial policy, and monetary policy. Shared competence means that the union acts when its action brings added value to actions taken by the member states, areas include; social policy, internal market and environment. Areas of supportive action is when the union acts only to support actions taken by the member states and it has no responsibility for management, which lays at the member state in question. (Presentation to citizens 2004 p.10 and Article III-12,13) The limits of the Unions competences are in its turn governed by the principle of conferral. The principle says that Competences not presented upon the Union in the Constitution is going to remain within the member states’ jurisdiction. The use of the Unions competences is also governed by the principles of subsidiarity and proportionality. Subsidiary refers to that decision-making shall be performed at state level if it can be sufficiently achieved; excluding areas in the constitution that gives the union exclusive competence. Proportionality means that the content and form of the Union action shall not exceed what is necessary in the stride of achieving the objectives of the Constitution. The constitution can also confer to a shared competence that the union and the member states may both legislate, but Union law suppresses national competence to legislate. (Article 1-11,12,17) A proposal made by the commission must explain the way in which it has taken the principles into account. If a national parliament finds that so has not been the case, they can issue a reasoned opinion. If the parliament thereafter holds the same opinion, the commission must review its proposal. There is also the right of referral to the Court of Justice. (Presentation to citizens 2004 p.11) There is though a flexibility clause that says: If action by the Union should prove necessary within the framework of the policies defined in Part III to attain one of the objectives set by the Constitution, and the Constitution has not provided the necessary powers, the Council, acting unanimously on a proposal from the European Commission
23 and after obtaining the consent of the European Parliament, shall adopt the appropriate measures. (Article I-18) The principle of conferral, subsidiarity and proportionality limit the competence of the union’s institutions in the democratic process and sets out rules that the process needs to follow and can therefore be regarded as procedural directives. It could be argued that they are substantive directives but they are hardly rules that imply a result, substance and, therefore, I do not find them substantive but procedural. 4.2.1.2 Who governs? And their procedural directives To be able to look at how decisions are made we need to look at the procedural directive of how governs. First we look at the actors in the legislative process that are the EU institutions; European Parliament (EP), the European Council, the Council of Ministers (hereinafter “Council”), the European Commission (hereinafter “Commission”) and the Court of Justice. Within these institutions there is authority given to the European Parliament President, the European Council President, the Commission President and the Vice president of the Commission also referred to as the Foreign Minister. (Article I-18 to 28) Other actors in the legislative process are the institutions advisory bodies; the Committee of the Regions, the Economic and Social Committee. (Article I-31) Within the institutions and bodies that govern there are several procedural directives that needs to be followed, for example voting procedures and composition rules regarding the actors. Down below is a short introduction of the actor’s different roles and different procedural directives within their organization. The EP how is considered the voice of the people with its directly elected representatives from the member states, co-legislate with the Council, exercise political control and consultation, elects the EP President as well as approves of the Commission President. (ArticleI-19) There are several procedural directives laid out in the Constitution regarding the institutions provisions. Article III-232 to 243 addresses the provision of the EP. The European Council, who consists of the Heads of State or government of the member states, the President of the European Council and the President of the Commission, define the general political directions and priorities for the Unions development. The Constitution states procedural directives on how they are to meet and where they are to meet. The Constitution states that decisions within the European Council are to be made by consensus; some exceptions are though stated in the Constitution. If required by the agenda other ministers of the member state may assist. (Article I-21) The president of the European Council is to represent the EU abroad, to drive forward its work. (Article I-21) Procedural directives addressing the provision of the European Council are set out in Article III-244. The Council, who consists of representatives of each member state at ministerial level, co-ordinates the Unions functions. The constitution gives out procedural directives that they are to meet and discuss in public when deliberating on a draft legislative act. Other procedural directives given in the Constitution are that the formation of the Council can change if a qualified majority of the Councils
24 members finds it appropriate. (Article I-22) Other procedural directives concerning the provision of the Council are set out in articles III-245 to 249. The European Commission who consists of one to be independent representative from each member state, propose legislative acts and promotes the general interests of the Union. The constitution states that up until 2014 there will be one commissioner per member state, after that there will be commissioners from 2/3 of the member states, a representation that will rotate on equal basis amongst the member states. The constitution states that each member state will propose their commissioner but that they need to be approved jointly by the European Council President and the President of the Commission as well as the EP who needs to reach a simple majority. These and many more procedural directive can be found in article III-250 to 257. The Commission President decides guidelines, to develop an internal organization, to appoint a Vice- President and discharge members like the Unions Foreign Affairs Minister. In the Constitution procedural directives limits the authority of the Commission President by stating that the President cannot discharge its commissioner without the consent of the European Council. The Foreign Minister, elected by the European Council and by agreement of the President of the Commission, is responsible for handling and coordinate external relations and action. (Article I-25) The Court of Justice who includes the Court of Justice, the High Court and specialized courts, consisting of at least one judge per member state ensures the right of appeal to Union law. (Article I-28) There are several procedural directives being expressed for the Court of Justice in article III-258 to 289, stating from how they can increase the numbers of assistants to who has the jurisdiction to determine proceedings. The Committee of the Regions consists of representatives of local and regional bodies who either holds a local or regional authority, electoral mandate or is politically accountable to an elected assembly. The Economic and Social Committee consist of representatives of organizations of the employed and the employers, and of others that are representative of the civil society. (Articles III- 292 to III-298) Other procedural directives regarding the institutional provisions of the committees are set out in article III-292 to 298. In order to reach a high level of transparency the Constitution sets out procedural directives regarding the access to the institutions documents. Article I- 49 underlines the rule of transparency when it comes to the institutions proceedings. 4.2.1.3 How are then decisions made? The actors that govern, what procedural directives do they have to go by in a decision making process? The legislative process consists of the three law-making procedures; co-decision, assent and consultation. The Constitution employ that decisions are to be made primary by co-decision by the EP and the Council. (htttp://www.euabc.com) In a co-decision process the EP cannot adopt laws without the approval of the Council and vice versa. The difference is that the EP
25 needs absolute majority 2 among its members and the council needs qualified majority 3 in its assembly. (Article III-302.7, 8) The decision-making involves the European Commission as an executive independent of the member states, the Council of Ministers to represent the governments of the member states and the European Parliament as the directly elected representative of the citizens. Down below is an explanation for the procedural practice in a co-decision process. (III- 308) In a co-decision procedure: 1) The Commission submits a proposal to the EP and the Council. The proposal made by the Commission is the result of a wide consultation process, which may have been conducted by reports from experts, consultation of national experts, international organisations and/or non-governmental organisations, consultation via Green and White Papers, etc. A consultation can also have been conducted internally among the different Commission departments. (http://www.europa.eu) 2) Thereafter the EP adopts its position at a first reading and sends it to the Council. The position has then been discussed within the relevant parliamentary committee and debated in a plenary session, where it is adopted by reaching a simple 4 majority. (http://www.europa.eu) 3) If The Council a) approves the proposal it is adopted. If the Council b) does not approve, it makes a position of their own, explaining why they did not adopt, and after sends it to the EP. 4) Subsequently the EP approves or rejects the Councils proposal by absolute majority within three months. If EP a) approves, the proposal is adopted. If the EP b) rejects the proposed act it shall be deemed not to have been adopted and is sent back to the Council. EP can also c) propose amendments to the position of the Council and forward it to the Council and the Commission asking them to give an opinion on the proposed amendments. 5) If 4) c) is practiced, then the Council needs to act on the amendment by reaching a qualified majority within tree months. If it a) approves, the proposal is considered adopted. If it b) rejects the amendments, the Presidents of the Council and the EP convene a meeting of the Conciliation Committee. 6) If 5 b) is practiced, the Conciliation Committee, who is composed by members of the Council or their representatives and representatives of the EP, reaches an
2 In its present configuration 367 votes from the 732 members is needed to reach absolute majority. 3 Absolute majority also known as qualified majority is defined by reaching at least 55 per cent of the votes of the members of the Council, and by representing at least 15 Member States and 65 per cent of the population of the Union. To block a decision there needs to be at least four member states behind the block. A Super qualified majority consists of 72 per cent of Member States and 65 per cent of the Union’s population. (Article 1-24,25) In cases where a qualified majority has been very narrowly achieved, in other words where the decision has been controversial a special clause will apply. (http://www.europaworld.org) 4 Majority of the members taking part in the vote. (http://europa.eu.int/comm/codecision/stepbystep/glossary_en.htm)
26 agreement, by having a qualified majority amongst the members of the Council or their representatives and by having a majority amongst the representatives of the EP. The time limit is six weeks. The Commission also participates in the conciliation meeting taking initiatives to reconcile the positions of the EP and the Council. If, the Conciliation Committee a) approves, the proposal is adopted. If they b) reject, the proposed act shall not be adopted. The deadlines can be extended and consultation can be asked for. To be able to reach a high level of transparency in the Union the Constitutional draft states that; the EP and the Council shall meet in public when considering and voting on a draft legislative act. (Article I-50) In the situations when assent applies the Council must obtain the EPs assent before certain decisions are made. If the EP cannot give its assent the proposal will not be adopted. In some cases the Council cannot decide/legislate without the consent of the EP like for example; the use of the flexibility clause (Article I-17), the adoption of laws against discrimination (Article I-53), the suspension of membership rights (I-58), the determination of the Unions resources (I-53). If none of the procedures co-decision or assent is mentioned, the EP only needs to be consulted. In a consultation the Council must consult the EP before voting on a proposal from the Commission. The council is not bound by EPs position. But consultation will still be practiced in cases that are particularly sensitive for the member states. (http://www.euabc.com) The Council can on its own adopt laws and framework laws in areas such as; own resources, multi-annual financial framework and elections to the EP. The EP can on its own adopt laws and framework laws in areas such as; the status of its members, the status of the Ombudsman and law on provisions governing the exercise of the right of inquiry. A lot of times there is a need for involvement by the other branch, and this involvement can range from simple consultation to approval. (htttp://www.euabc.com) The results made from the decision making process are laws, framework laws, regulation, decision, recommendation and opinion. (Presentations to citizens 2004 p.19) Legislative acts like laws and framework laws are legally binding acts. Non- legislative acts like recommendations and opinions are non-legally binding acts which member states cannot be fined for not following. (Article I-24) As been shown the decision making process itself contains many procedural directives but it is also limited by substantive directives as will be explained below. 4.2.2 Substantive approaches to democracy in The Constitutional draft A substantive approach to democracy focuses on the outcomes of democratic governance and practice. Substantive directives give out a normative concern over a result that the Union should uphold. Substantive principles are imbedded in the charter of fundamental rights, but they are being expressed in many parts of the European Constitution.
27 As early as in the explained purpose of the European Constitution we can read of substantive directives when substantive values like peace, justice and solidarity are stated as being values to strived for. The Unions Values and Objectives expressed in articles I-2 and I-3, they emphases a results that the democratic decision-making should obtain. The values of the union are; dignity, liberty, democracy, equality, rule of law, human rights, rights of minorities, pluralism, non-discrimination, tolerance, justice, solidarity and equality of women and men. (Article I-2) The objectives of the union are; to offer its citizens an area of peace, freedom, security and justice without internal frontiers and to offer an internal market with free competition. (Article I-3) In the constitution draft one can also read that the Union shall work for sustainable development, balanced economic growth, price stability, full employment, social progress, environmental protection and for scientific and technological advances. It is to combat social exclusion, to promote social justice and equality between men and women, to protect the rights of the child, solidarity between generations. It shall promote economic, social and territorial cohesion between member states but respect the cultural and linguistic diversity. Free movement of persons, goods, services and establishments shall be guaranteed within and by the Union, capital as well as freedom of establishment shall be guaranteed within and by the Union. Equality between the Member States shall come before the Constitution and their national identities. (Presentations to citizens 2004 p.19). The principle of equality between member states shall be observed by the Union in all of its activity. (Article I-44) These all make out substantive directives and normative positions within a democracy. The constitution doesn’t allow any differentiation of religious, philosophical and non-confessional associations and organization in the member states. The same article also states that respect should be shown to the status of churches under national law. (Article I-51) These directives will limit the result the democratic procedure is allowed to reach and are to be considered as substantive directives. An attempt to balance two substantive values is taken in Article III-103. The article states the importance of promoting employment, improving living and working conditions but that this should be practiced in consideration with the need to maintain the competitiveness of the Unions economy. The Constitution finds that such a development will ensue the functioning of the internal market, which in turn will favor the harmonisation of social systems. Article III-104 dealing with social policy states several substantive directives to be uphold like the combating of social exclusion. The constitution expresses the need to look at the circumstances for the member state. For example article III-104 states that European framework laws shall avoid imposing administrative, financial and legal constraints that could hold back the creation and development of small and medium sized undertakings. Framework laws in it self give the national authorities the freedom to choose form and means but they are binding to the result given by the law. The actual rule of law I find to be a substantive directive as well, this when a democratic procedure can choose to give away the rule of law and maybe give more power for the president to rule above the law. This can though be questioned; giving
28 an indicator for how substantive and procedural democracy collides when they become a condition for each other. Looking at content driving directives that outlines a certain democratic results, that needs to be obtained in the decision-making process is complex. This when a procedural directive like the principle of subsidiarity as expressed in article I-9 stating that; the Union shall act only if and insofar as the objectives of the intended action cannot be sufficiently achieved by the member states, either at central level or at regional and local level. This express an indirect result outlined that decisions should be made as close to the citizens as possible. The same goes for the rule of transparency. (Article I-50) But where do you then draw the line? My stance is that neither the rule of transparency or subsidiarity gives out a substantive result in the sense of a value or objective that needs to be upheld or be the result of a democratic process. A substantive directive referees to result in someone’s interests, a group of people or a value and objective. . 4.3 Discussion about Contemporary Democratic Conditions Influence on the European Constitutions Democratic Organization After looking at the inherent content of the Constitutional draft and the democratic procedures and substantial directives it gives expression for it is of interest to see if one can relate this democratic organization to the democratic conditions that are inherent in the European society where the member states of the Union are situated. Contemporary democratic conditions as Held argued expresses an urge to act, to act collectively over national boarders. Since the power to act is viewed as a substantial approach to democracy the Constitution is having a substantial approach to democracy since it put strong emphasis on the power to act within certain political areas. EU itself is also a way to increase and strengthened the political power to act. Also of increasingly importance in the contemporary democratic debate is that a decision-making process should be effective. The Constution trys to make the decision-making more effective by having the Council and the EP co-legislate on most issues. But the Constitution also prioritice using qualified majority which could have the opposite effect leading to a blocking minority. In the contemporary democratic society the nation state no longer describes power relation in the society when it has obtained competition from other actors. To meet the different centres of power in society; other actors within the society are in the Constitution invited to participate and give their input in the decision-making process. As a result the decision making process has more actors and decisions are made on a higher level. Democracy has, therefore, become internationalised and the Constitution phrases terms such as the European citizen and draw out possibilities for the European citizens to make citizens initiative. A contemporary democratic problem is to find out how is responsible for political decisions. The constitution meets this democratic problem by emphasising transparency in the decision-making process and to give European citizen’s access
29 to the institutions documents. In the contemporary democratic society the bureaucrats has a large amount of power. This is also evident in the Constitution when the European commission has the single power to take legislative initiative and has the power to disregard proposals from elected representatives and the citizens. The constitution contains several exceptions; the rules of the game and thereby procedural democratic directives are being adjusted after the continually changing circumstances of EU politics. In The Charter of Fundamental Rights the Constitution expresses the importance of strengthening the protection of fundamental rights, this in the light of changes in society, social progress and scientific and technological developments. This give a strong indicator for how the Constitution is trying to adjust to contemporary democratic conditions. The Constitution phrases many normative principles by expressing values and objectives that needs to be upheld like equality between member states. These substantial values increase the procedural democratic process. Many procedural rules are also adjusted to the likes or settings of the member state which can be seen in the many framework laws the constitution expresses where the member states are bounded to the result but not to procedures. Procedural directives changes along with circumstances and new conditions something the constitution leave room for in the form of flexible clauses. The substantive directives are though vague leading to the possibility of interpretations and adjustment to traditions and circumstances in the member states. As Haltern addressed, EU as a pluralistic society has a puzzling variety of values within its boarders. The Constitutions vagueness about its values could be a way to address the puzzling variety of values and to make the substance of democracy in EU less controversial. Overall the distinction between the democratic procedure and substance is sometimes difficult to find in the Constitution. This problem can bee viewed in relation to Olsson’s thoughts that the traditional democratic organization is changing within our society and with it the distinction between the democratic procedure and substance. The procedure and substance of democracy is today seen as unstable and variable.
30 5. Conclusions The main purpose of my essay was to look at the organization of democracy at an international level, within the European Union. This to give me an indicator for how democracy can be organized on an international level. As a subsequent purpose I saw if contemporary democratic conditions have had an influence on the organization of democracy at the European level. In order to achieve my purpose my research questions was: a) How is democracy organized within the European Constitutional draft in terms of putting the emphasis on substantive and procedural directives? b) Can we see a connection between contemporary democratic conditions present within the European Union and what the relation looks like in the constitutional draft and between democracy’s emphases on procedural or substantive directive? EU carries out democratic governance on an international level with all of its varieties of actors. By conducting cooperative action, a network of actor’s mostly civil servants performs “government for the people”. Union law prevails over national law. The rules of the decision-making process can be considered complex horizontally; between the institutions and vertically; between the Union and the member states. The democratic organization as expressed in the constitution draft focuses on the procedural approach to democracy with all its rules for whether the institutions can act, to what end they can act, who should be involved in the decision-making process, and how. The procedural directives in the constitution sometimes become quite complex as several procedural rules interfere with each other and there are also many exceptions from the rule. But the democratic process itself is restrained by values expressing a substantive approach to democracy. There are several indicators for both procedural and substantive directives in the constitution. But overall the procedural directives give expression for political behaviour of “government for the people”. But it is not the politicians who are governing but civil servants. The constitution promote social and economic rights like full employment, social progress, price stability. This indicates that the EU needs to uphold substantive values in order to be called democratic. The vagueness of some of the substantive values like i.e. “social justice” can be counted, as an indicator for how substantive values needs to be adjustable to the conditions of society and especially the different conditions within the member states. The constitution set out to meet sereral democratic problems described within contemporary democratic thinking like “the power to act”, who is responsible for decisions being taken and democratic effectivity. Contemporary democratic thought gives expression for how both the democratic procedure and the democratic substance are considered not to be fixed but to change accordning to conditions and possibilitise expressed within democracy. Maybe as consequence of
31 democracy moving away from the hands of representative elected politicians, there has been an enhancement of substantive directives in contemporary democratic thinking. To reach legitimacy there seems to be an increasing need for not just fair procedures but democratic results. Within contemporary democratic thinking concepts of substantive democracy are though considered controversial. The distinction between the democratic procedure and substance is also seen as more difficult to make out. Complexity arises when the “rule of law” and “the power to act” are considered substantive democratic rules whereas the rule of subsidiarity and transparency are considered procedural democratic rules. If directives concerning efficiency are procedural or substantive I also find complex. The relation between substantive and procedural approach to democracy seem to have come closer and intervene more. The procedure and substance of democracy is seen as unstable and variable. The democratic problems are of both substantive and procedural character and in order to salve contemporary democratic problems there seems to be a need to look at the relation between substantive and procedural approaches to democracy. For further research it would be of interest to conduct research about why values and interests differ within the European context. Indicators to include would be historical experiences and culture this since values and interests seem to depend on these. The substance of democracy in the shape of values and interests are said to be different at different places and in different times.
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