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Models of Demoicracy: Some Preliminary Thoughts LAW 2020/08 Department of Law Models of Demoicracy: Some Preliminary Thoughts Robert Schütze European University Institute Department of Law MODELS OF DEMOICRACY: SOME PRELIMINARY THOUGHTS Robert Schütze EUI Working Paper LAW 2020/08 This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author, editor. If cited or quoted, reference should be made to the full name of the author, editor, the title, the working paper or other series, the year, and the publisher. ISSN 1725-6739 © Robert Schütze, 2020 Printed in Italy European University Institute Badia Fiesolana I-50014 San Domenico di Fiesole (FI) Italy www.eui.eu cadmus.eui.eu Abstract What does the neologism demoicracy mean? If democracy is the “government” of the “people”, can there be a government of peoples? Are international organisations, like the United Nations, demoicracies; or should the United Kingdom, as a multi-nation state, be viewed as such? Within the last decade, the idea of demoicracy has developed considerable traction, especially within the political science literature on the European Union. Yet what exactly is demoicracy supposed to mean in this context; and what models of demoicracy have developed to explain the “realities” of a plurality of peoples governing together? This Working Paper aims to explore the theoretical and historical expressions of the curious concept of demoicracy. Section 1 starts by clarifying two important philosophical distinctions, namely the difference between popular sovereignty and popular government and, equally, the distinction between an (international) Union of States and a (national) Union State. Sections 2 offers a constitutional overview of the potentially demoicratic elements within the United States of America; while Section 3 analyses and compares the founding and government of the European Union in demoicratic terms. Section 4 critically presents the three main models of demoicracy that have developed in the contemporary literature on the European Union, with Section 5 introducing a – new – fourth model called “republican federalism”. A Conclusion makes a normative argument in favour of this fourth model from the point of view of the social and legal structure of the European Union. Keywords Demoicracy, European Union, dual sovereignty, dual government, dual citizenship, mutual recognition, republican intergovernmentalism, republican federalism, globalisation Author contact details: Robert Schütze Professor of European and Global Law Durham University and Luiss Guido Carli Visiting Professor, College of Europe Table of Contents Foreword Introduction ........................................................................................................................................... 1 1. Coming to Constitutional Terms: Two Philosophical Distinctions ............................................... 2 a. “Democracy”: Popular Sovereignty versus Popular Government ................................................... 2 b. “Demoicracy”: Federal Republic versus Unitary State ................................................................... 5 2. The “United States”: Popular Sovereigns and Demoicracy in America ...................................... 8 a. Founding Government: We, the Peoples of the United States ........................................................ 9 b. Functioning Government: Dual Democracy, Dual Citizenship..................................................... 12 aa. Dual Democracy: Demoicracy within the Institutions of Government ................................... 12 bb. Dual Citizenship: Fundamental Rights and Mutual Recognition ........................................... 16 3. Democracy and Demoicracy in “Europe”: A Preliminary Exploration ..................................... 19 a. Founding Government: We, the European People(s)? .................................................................. 19 b. Functioning Government: Dual Democracy, Dual Citizenship..................................................... 22 aa. Dual Democracy: Demoicracy within the Institutions of Government ................................... 22 bb. Dual Citizenship: Fundamental Rights and Mutual Recognition ........................................... 25 4. Theorizing EU Demoicracy I: The Standard Model and its Two Rivals ................................... 26 a. The Standard Model: Demoicracy as the Non-Majoritarian “Third Way”.................................... 28 b. Alternative Models: “Republican Intergovernmentalism” and “Popular Sovereignty” ................ 32 aa. Bellamy’s “Intergovernmentalism”: Demoicracy as National Sovereignty ........................... 33 bb. Cheneval’s “Supranationalism”: Demoicracy as Popular Sovereignty ................................. 34 5. Theorizing EU Demoicracy II: “Republican Federalism” as a New Model............................... 36 a. Dual Sovereignty: Who are the “Masters” of the EU Treaties? .................................................... 37 aa. Derived Constituent Power: Formal and Informal Treaty Amendments ............................... 38 bb. EU Membership: Entering and Exiting the EU Constitutional Order .................................... 41 b. Functioning Government: Dual Majoritarianism, Dual Citizenship ............................................. 43 Conclusion: Models of European Demoicracy .................................................................................. 45 Models of Demoicracy: Some Preliminary Thoughts Foreword This Working Paper presents some “preliminary thoughts” on the historical precursors and conceptual possibilities of a European democracy or demoicracy. They are published, prematurely, today to honour the late David Held who, suddenly and sadly, passed away last year. David and I first met in 2012 when he arrived in Durham as the newly appointed Master of University College. Plans were swiftly made to co-direct a “Global Policy Institute” in which David was to concentrate on the international and cosmopolitan dimension of world “governance” (or gridlock thereof), whereas I – a (then) young Professor of European Law – was to explore the supranational and regional manifestations of “governments” above and beyond the State. David was a prodigious source of warmth, wisdom and wit. The son of a German-Jewish émigré fleeing Nazism, educated in Britain and the United States, David’s academic interests were as broad as they were deep. Starting his career with an extraordinary “Introduction to Critical Theory” (1980), which familiarized a wider English-speaking world with the philosophy of the Frankfurt School, and especially the work of Jürgen Habermas, his subsequent intellectual rendezvous with “democracy” and “cosmopolitanism” not only made him famous but defined and structured two academic subfields for more than two decades. Interested in the “theory” as much as in the “practice” of both key concepts of political philosophy, he combined a profound sensitivity for the history of ideas with a deep commitment to sociological facts. David thereby believed in, and had an enormous respect for, the constructive potentiality of “law” as an agent of order and rationality; and conversations at the Institute would thus often range from Adorno and ASEAN to Zambrano and Zemin. One of his future retirement projects was to write a book entitled “How to Change the World” (he hardly seemed unnerved when told that Eric Hobsbawm had already published under that title), and while this book will never see the light of day, for many who knew him, he had already changed the world for the better. He will be much missed, and these preliminary thoughts are but a first tribute to a remarkable friend and colleague – and, in many ways, a master in life and death. A preliminary version of this preliminary piece was presented in Zürich; and I am very grateful to Francis Cheneval for his kind invitation to the “Kolloquium Politische Philosophie” last year. Most special thanks go to Nicola Lupo who, over the years, has kindly encouraged me to put these ideas on paper (and a shortened Italian version of the second part of this essay is to be published in his collection “Parlamenti e democrazia in Europa: Federalismi asimmetrici e integrazione differenziata” next year). This EUI Working Paper forms part of my broader interest in “Neo-Federalism” and its implications for democracy in the twenty-first century in general, and the constitutional parameters of European democracy in particular. For an earlier academic collaboration (with David) on these issues, see David Held & Robert Schütze (eds.), Democracy Beyond Borders – Special Issue, (2017) 8 (6) Global Policy. The picture of David, on the next page, is taken from Paul Kelly’s thoughtful LSE obituary. European University Institute Robert Schütze Department of Law Working Papers Models of Demoicracy: Some Preliminary Thoughts In memory of David Held. European University Institute Introduction “The history of the idea of democracy is curious; the history of democracies is puzzling.”1 Beginning in the Greek world of city states, the composite word “democracy” combined demos (people) with kratos (rule) to refer to the “rule” or “government” of the “people”. The government of the people thereby meant the rule of the “many” – the majority of the people; and this model of democracy, as direct democracy, can still be found today. Yet with the spectacular rise of the territorial state, the idea of
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