Bowman 2007 - The European Union Democratic Deficit - Federalists, Skeptics, and Revisionists.pdf

8/14/2019 Bowman 2007 - The European Union Democratic Deficit - Federalists, Skeptics, and Revisionists.pdf

1/23

http://ept.sagepub.com

TheoryEuropean Journal of Political

DOI: 10.1177/14748851060616062006; 5; 191European Journal of Political Theory

Jonathan BowmanRevisionists

The European Union Democratic Deficit: Federalists, Skeptics, and

http://ept.sagepub.com/cgi/content/abstract/5/2/191The online version of this article can be found at:

Published by:

http://www.sagepublications.com

can be found at:European Journal of Political TheoryAdditional services and information for

http://ept.sagepub.com/cgi/alertsEmail Alerts:

http://ept.sagepub.com/subscriptionsSubscriptions:

http://www.sagepub.com/journalsReprints.navReprints:

http://www.sagepub.com/journalsPermissions.navPermissions:

2006 SAGE Publications. All rights reserved. Not for commercial use or unauthorized distribution.by Corneliu Bilba on November 29, 2007http://ept.sagepub.comDownloaded from
http://ept.sagepub.com/cgi/alertshttp://ept.sagepub.com/cgi/alertshttp://ept.sagepub.com/subscriptionshttp://ept.sagepub.com/subscriptionshttp://www.sagepub.com/journalsReprints.navhttp://www.sagepub.com/journalsReprints.navhttp://www.sagepub.com/journalsReprints.navhttp://www.sagepub.com/journalsPermissions.navhttp://www.sagepub.com/journalsPermissions.navhttp://ept.sagepub.com/http://ept.sagepub.com/http://ept.sagepub.com/http://ept.sagepub.com/http://www.sagepub.com/journalsPermissions.navhttp://www.sagepub.com/journalsReprints.navhttp://ept.sagepub.com/subscriptionshttp://ept.sagepub.com/cgi/alerts


2/23

The European Union DemocraticDeficit

Federalists, Skeptics, and Revisionists

Jonathan Bowman Saint Louis University

abstract: I outline the current debate over the European Union democratic deficit

in terms of differing methodological approaches towards the realization of freedom

and basic rights to political participation. Federalists opt for a model of freedom asnoninterference and autonomous self-determination by proposing to tie basic rights

in the EU to a univocal form of European-wide popular sovereignty. Althoughskeptics argue that the EU lacks the fundamental basis for such European-wide

democratic self-determination, they ultimately defend a similar view of freedom asnoninterference with their appeal to the collective will of the member states.

Democratic revisionists instead point to the novel democratic potential of institutions

in the EU such as the Open Method of Coordination for mediating overlappingsovereignties. I conclude using the example of basic rights to effective participation

for immigrants and minorities to illustrate the strengths of the revisionist view overviews that appeal to the principle of subsidiarity.

key words: democratic deficit, democratic revisionism, European Union, federalism,freedom, nondomination, Open Method of Coordination, republicanism, sovereignty, subsidiarity

As a condition for European Union (EU) membership, member states must

respect human rights and uphold democratic principles. However, critics argue

that the EU as a transnational polity fails to live up to the criteria set for its

member states. Even though respect for human rights is a condition for the

accession of applicant states, the EU has yet to formulate a common human rights

policy. And although the number of EU policies and laws that affect its citizensincreases every year, critics remain doubtful whether citizens have real delibera-

tive influence over its decision-making. Most simply stated, the EU would not

accept itself if it were to apply for membership. Hence arises what has come to be

known as the democratic deficit.

Contemporary responses to the lack of real citizen influence over EU laws and

policies are centered on practical questions of the best institutional design to

ensure popular sovereignty and the protection of basic rights to effective political

191

article

Contact address: Jonathan Bowman, Department of Philosophy, Saint Louis University,3800 Lindell Blvd, St Louis, MO 631560907, USA.Email: [email protected]

EJPTEuropean Journal

of Political Theory

SAGE Publications Ltd,

London, Thousand Oaks

and New Delhi

issn 1474-8851, 5(2) 191212

[DOI: 10.1177/1474885106061606 ]

http://ept.sagepub.com/http://ept.sagepub.com/http://ept.sagepub.com/http://ept.sagepub.com/


3/23

participation. While the institutional proposals differ, most replies to the demo-

cratic deficit fall into the conventional template of popular sovereignty as the

minimal threshold for democratic self-rule, employing the principle of sub-

sidiarity to ensure that what can be done at a more local level is not raised to a

higher level.1These proposals primarily view the self-legislating autonomy of a

demos as the best way to realize popular sovereignty and basic rights to effectiveparticipation in decision-making processes. I overview the general contours of

this current debate, setting up the three main positions stylistically in terms of

skepticswho want to preserve the autonomous will of member states, federalistswho want European-wide autonomous legislation, and revisionistswho instead

propose a democracy of demoi with multiple sovereignties.

More importantly, however, motivating these practical debates concerning the

best institutional design for enhanced influence over EU laws and policies are

more pressing normative and philosophical questions concerning republican

ideals of freedom and equality necessary to allocate basic rights to effectivepolitical participation. Freedom and equality thus serve as standards of democratic

rule by which the three competing designs will be assessed. Framing the debate

primarily in terms of freedom, I show how differing conceptions of freedom sub-

sequently influence ones views about how best to devise republican institutions

that ensure norms of equal political participation fitting for this unique trans-

national order.

Following some opening remarks that set the problem of the democratic deficit

in terms of freedom, I move into my three-step argument. First, while federalists

and skeptics propose very different institutional designs for the EU, they are both

committed to a normative view of freedom traditionally associated with the

self-legislation of a demos. Second, along with revisionists, I reject popular

sovereignty and the notion of freedom as autonomous self-determination as a

satisfactory democratic ideal. In particular, the model of freedom as self-determi-

nation cannot realize an adequate norm of equality when conceived in terms of

equal rights to political participation for allthose most immediately affected by

EU policies, including non-citizens who are a significant group in its increasingly

multicultural civil society.

Third, I introduce my main contribution to the democratic deficit debate,

which is to develop the revisionist position positively beyond its negative rejection

of freedom as self-determination. Self-legislation at both the higher level of

European-wide policy objectives and at the lower levels of member state jurisdic-

tion, while consistent with the principle of subsidiarity, can turn into a different

conception of freedom as noninterference that is implausible for the overlapping

sovereignties of the EU.2 Instead, freedom as nondomination can preserve the

best features of the republican tradition and prove to be a more fitting normative

ideal for the EU.3

This third republican view of freedom more adequately incor-porates into deliberations all subjects affected by EU law and policy, including

member states, citizens, and, in some cases, even non-citizens.

European Journal of Political Theory5(2)

192



4/23

To achieve this broader scope of rights to equal political participation, freedom

as nondomination is the best normative ideal for my interpretation of the EU as

a multiperspectival polity.4 This is the analytic prism chosen to make it intel-

ligible as a political order by seeking to preserve rather than overcome its complex

three-pillar structure. Following the likes of Joseph Weiler, James Bohman, and

Gerald Ruggie, such responses to the democratic deficit correctly acknowledgethat no single all-encompassing theory of democracy can adequately capture its

diverse practices and novel functions.5 By facilitating democratic accountability

between plural sites of sovereignty and preserving the prevailing forms of multi-

culturalism in the EU, regarding the EU as a multiperspectival polity will require

significant modifications of the republican tradition.6 Human rights policy

towards immigrants and permanent minorities will thus serve as an illustration of

how the revisionist track allows for a more inclusive ideal of justice when set in

terms of basic rights to nondominating equal participation for allthose affected

by EU policy from various forms of political membership.

Freedom and the Problem of Transnational Legitimacy

When taken at face value, freedom serves as the relatively undisputed normative

standard by which competing institutional designs for the EU are judged for

legitimacy. However, this analysis of freedom as a normative standard for legiti-

macy begins by recognizing that freedom is a complex concept that can be realized

normatively in at least three different ways. As an initial version, freedom as self-

determination is traditionally associated with democracy in its standard forms,

whereby those that seek to formulate law and policy do so through acts of collective

willing. Second, freedom as noninterference occurs when these autonomous acts of

self-determination exclude those that fall outside of political membership in a

particular community. This more exclusive form of freedom means to escape

coercion in making collective political choices by effectively avoiding hindrance,

threat, or penalty from any force outside or external to a specific demos.7 Finally, at

the other end of the normative spectrum,freedom as nondomination allows for the

forms of interference prohibited on the prior standards by permitting multiple

forms of political membership and overlapping sites of pooled sovereignty. On this

more inclusive view of freedom, acts of interference between various demoi are

acceptable insofar as they do not subject those affected by laws and policies to the

arbitrary domination or the arbitrary good favor of those interfering. For republi-

cans, arbitrariness would ensue in political domination in cases where decisions and

policies do not adequately track the interests of those immediately affected.8

Before developing this third version of freedom in the later stages of the argu-

ment as a normative alternative to noninterference and self-determination, I will

first give short examples of the initial two more closely related views of freedom.Advocates of the first would regard freedom in terms of the exclusive right of

citizens in a given polity to self-determination in governing those legislative

Bowman: The European Union Democratic Deficit

193



5/23

affairs that fall within their territorial jurisdiction. One example would be

the exclusive right to set standards for immigration policy within the sovereign

borders of member states and within the internal confines of the EU. Proponents

of the second standard would take self-determination to its extreme, calling for

noninterference in setting a schedule of basic rights for European citizens, for

example, prohibiting outside international bodies from formulating the rights ofminority groups within EU and member state territorial limits.

One potential problem with these two related views of freedom is that both are

tied to a model of the institutionalized popular sovereignty of a single demos as

the minimal threshold for democracy. The difficulties with such appeals are

initially made manifest by looking at the organization of EU intergovernmental

deliberations, in particular, by looking at decision-making in the emerging insti-

tutional framework of the Open Method of Coordination.9While in this section

I will primarily focus on this single example, such an overlapping scheme of

plural sovereignties between member state and EU level decision-making ischaracteristic of the challenges associated with construing transnational demo-

cratic legitimacy explicitly in terms of popular sovereignty, freedom as

noninterference, and autonomous self-legislation. The crucial difference between

nondomination and the other two versions of freedom comes down to differences

in dealing with multiculturalism, with the former version of freedom allowing for

a wider scope of political membership.

What has come to be known as the Open Method of Coordination (OMC) in

the EU best captures the capacity of freedom as nondomination to deal with the

prevailing forms of multiculturalism that are problematic for traditional forms of

republicanism. The OMC and its rolling system for the realization of basic rights

allows diverse institutional sites periodically to learn from one another and com-

pare experiences in the process of dealing with common problems.10 Most

succinctly defined, it is a regulatory device offering a decentralized specification

of common standards periodically disciplined by ongoing comparison between

diverse units.11

While the OMC was a process originally inaugurated with the European

Employment Strategy (EES), its success in this realm has led to experimentation

in a broad array of other fields including research and development, economic and

social policy, and now human rights.12 Under these schemes, the European

Commission, the main regulatory body in the EU, usually employs the research

of experts in its committee system to compare the policies of member states in a

given field. Member states are encouraged to provide National Action Plans

(NAPs) in meeting a particular policy goal overseen by the Commission in the

implementation process. Experimental pilot programs are also developed and

sometimes funded at the EU level in order to find the best policies that member

states employ in a given policy dilemma. Best practices then are established astargets for other member states to either meet or surpass through means that still

respect broad differences between the various cultures present in the EU.


194



6/23

For further clarification, the aforementioned process of setting out common

targets for realizing basic rights through the OMC is what experimentalists term

benchmarking. This occurs when two or more member states establish a common

metric for the comparison of policies, goals, or objectives in light of a shared prob-

lem, by following a general three-step process for realizing basic rights. First, as a

typical illustration of benchmarking, the Commission identifies a practice asproblematic that deals with an issue of common interest to all member states of

the EU.13 Next, minimal standards for compliance are set as benchmarks for com-

parison. While this step of benchmarking does call for a degree of abstraction in

generalizing targets, it is also sensitive to diverging social and cultural contexts,

drawn from the best practices of all states facing similar problematic circum-

stances. Lastly, variances in meeting the minimal benchmark are permissible by

states insofar as diverging practices meet the minimum standards set by previous

precedent as well as or better than existing practices.

The practice of sanctioning whether member states meet the minimal standardsfor realizing basic rights as laid out in the OMC occurs through what experi-

mentalists have termed mutual monitoring. This is the regularized process of pre-

empting disastrous consequences by looking for performance failures and possible

sources of deception in attempts by member states to meet the established bench-

marks.14 On such a model, other member states, EU-level institutions like the

Parliament, Commission, Court of Justice, European Court of Human Rights,

and even NGOs can monitor the internal practices of any given member state

participating in the OMC and make public the degree of success in protecting the

rights of their citizens.

In such instances, conventional expressions of popular sovereignty organized

on the model of freedom as noninterference are undermined by this ongoing

intergovernmental realization of rights. On such a complex institutional design,

the traditional call for legitimacy by virtue of noninterference in the sovereign will

of a single member state is misguided. In addition, the similar appeal to demo-

cratic legitimacy in terms of freedom as autonomous self-legislation for the EU

would presuppose a European-wide popular will, while the Open Method of

Coordination fosters differentiated networks of solidarity among distinct political

cultures. Therefore, a single locus of popular sovereignty can be located at neither

one level nor the other; sovereignty must besharedamong various legislative sites

as even strategically oriented member states increasingly lack the ability to con-

trol the final outcomes of deliberations subjected to the OMC. Sharing of

sovereignty between levels is allowed only insofar as acts of interference between

levels do not subject those affected to arbitrary forms of domination or to the

arbitrary good favor of institutions formulating legislative policy. The next

section develops this argument in more detail by explicating the following insight

gathered from practices of the OMC: in order adequately to address the deficit indemocratic legitimacy, setting freedom as a normative standard must take into

account the unique kind of multiperspectival polity the EU is.15


195



7/23

Facing the Legitimacy Deficit: Federalists, Skeptics, andRevisionists

Given the institutional complexity involved in the multileveled dispersal of policy

formation between member states and the EU, I will look at three very different

ways to increase citizen influence over laws and policies in order to deal with theassociated democratic deficit. While these options at face value all address the

practical concern of the capacity of competing institutional designs for ensuring

effective political participation in EU decision-making, each will be recast in

terms of competing expressions of the normative ideal of freedom. This com-

parative discussion serves as a broader illustration of the need ultimately to shift

from a threshold of popular sovereignty through autonomous legislation to a

rights-based threshold of equal political participation.

The Federalist Approach to the Democratic Deficit

Eurofederalists argue that changes need to be made for the EU to meet conditions

for democratic rule normally associated with a conception of freedom as non-

interference in state-like institutions that produce positive legislation.16 This is

exemplified most clearly through their desire to institute shared objectives that

allow for European-wide collective willing on the model of the conventional

nation state tied to a system of rights at the European level. Federalists therefore

propose to emulate the collective willing of EU member states by regarding

European-wide public deliberation as the content of formal law-making, eventu-

ally leading to the establishment of legislative procedures for producing a unified

European sovereign will. As an alternative to the more traditional view of inter-

national political organizations as sites for the delegation of authority out of

deliberative arenas,17 Eurofederalists view political representation at the inter-

national level as a way to reproduce the democratic achievements of the

conventional nation state at a higher level.

Federalists also argue that institutionalized practices of sovereign European-

wide law-making could actually serve to establish the form of political identity

familiar to the conventional republican polity at this EU level. In general, practical

measures for fostering such an identity through a common political culture include

the transformation of the European Parliament into the primary legislative body in

the EU and increased transparency and accountability to the European public for

the Council of Ministers, European Council, and Commission in their respective

legislative and executive functions.

More specifically, the process of constructing a common identity also includes

a sharper determination of administrative competencies between member states

and the EU in order to clarify the expanding set of jurisdictions wherebyEuropean law takes direct effect over national legislation. This would come about

through an explicit European Constitution that would more clearly demarcate the


196



8/23

limits of overlapping legal jurisdictions in the EU and allow for more determinate

bounds of noninterference in the sovereign jurisdiction of the EU. One way of

instilling EU-wide objectives would include seeing the system of basic rights in

the EU as a source of a common European political identity.

For areas that are not matters of European-wide interests and objectives, the

principle of subsidiarity is another measure used by federalists to respond to thedemocratic deficit by delineating between European and local jurisdiction to

bring some decision-making powers back to member states. In matters that do

exceed the local jurisdiction of member states, federalists call for the exercise of

the Community Method that employs the co-decision procedure within the text

of its material constitution as the standard procedure for producing legitimate

legislation through a bicameral legislature in order to grant equal measures of

input shared between the Parliament and Council of Ministers.18 Proponents

argue that the Community Method most effectively translates the will of member

states through the Council of Ministers together with the broader interests of theEuropean public via the European Parliament into a unified European-wide

popular will, with the Commission retaining the federalist element of the process

through its sole right to initiate policy.

However, in addition to the multiple levels of sovereign jurisdiction high-

lighted earlier in the previous section, it turns out that reproducing the popular

sovereignty of the nation state at a higher EU level may be more difficult for

federalists than initially surmised. In an opposing camp treated more fully in the

next section, skeptics point to the absence of European-wide political parties and

general voter apathy in the elections of the European Parliament. They also argue

that reinstitutionalizing the conventional model of noninterference in the formal

legislature at a higher European level will not work without a more robust politi-

cal identity to draw upon. Repeated failures in extending the political identity

familiar to the democratic nation state to a higher level lead into the additional set

of challenges that Euroskeptics will continue to raise in the next section against

the federated model.

The Skeptical Approach

Euroskeptics challenge the previous more conventional responses to the demo-

cratic deficit that proposed emulating the democratic traditions of member states

as the template for supranational democracy.19 However, in the end, while

skeptics reject the prospects of autonomous self-legislation at the EU level, they

radicalize the principle of subsidiarity by employing it to enact a more local

expression of the same univocal ideal of popular sovereignty. Skeptics thus also

call for a model of freedom as noninterference, this time in the sovereign legisla-

tion of each member state.In opposition to the federalists, skeptics argue that the EU as a sovereign

entity would entertain the hope of reproducing the democratic legitimacy of its


197



9/23

member states if it met three basic conditions that adhere to the presumed need

for an ideal of freedom as noninterference. The first condition for legitimate self-

legislation would be met if the EU were defined by fixed territorial boundaries.

Second, the EU could exercise such powers of autonomous legislation if it

enjoyed an explicit founding moment whereby its principles were laid out in a

constitutional text. And last, it could emulate the democratic traditions of itsmember states and might even warrant recognition as a republican polity if it was

comprised of a people that shared a common political culture.

However, obstacles associated with these three criteria immediately emerge.

Skeptics draw upon these basic features of the conventional democratic traditions

of current member states to argue that the EU cannot merely extend their demo-

cratic legitimacy to a higher level. They thus conclude that powers of autonomous

collective willing must be returned back to the more familiar level of the

sovereign member state. Institutional remedies skeptics defend to reverse the

prevailing trend of enhanced European integration are all generally consistentwith enhancing the local side of the principle of subsidiarity. These include

returning sovereign legislative powers to member state parliaments, electing anti-

EU national representatives to the European Parliament, and strengthening

powers of national executives in the Council of Ministers to opt out of EU majori-

tarian decision-making.

1. As initial support for these various modifications of EU institutional design

to halt any further political integration, skeptics point out that the geographic

borders of the EU are indeterminate. They emphasize that the current borders of

the EU are merely borrowed second-hand from member states.20This presents a

problem for a normative model of freedom as noninterference at the EU level

when there are no clear boundaries for demarcating those persons inside and

outside the sovereign geographic jurisdiction of EU institutions. In addition, with

expansion to the east, its second-hand borders are expanding. Criteria for

membership in the EU are by no means limited just to western European nations.

Membership is open to an array of applicants that may in the future not obey the

traditional boundaries drawn between Europe, Asia, and Africa.

2. Democratic nation states have historically enshrined their commonly held

legal principles in an explicit text. The constitution as a shared text in its most

conventional form serves as another clear determinate for establishing boundaries

of noninterference in the legal jurisdiction of a polity. However, progress towards

drafting a European Constitution was initially halted as the draft constitution was

rejected in December 2003 due to dispute over dividing voting rights between

large, medium, and small member states. Although a modified draft constitution

was approved by the European Council in July 2004, the entire document was

most recently subjected to veto due to the May and June 2005 failed national

referenda in France and the Netherlands respectively.3. Perhaps most importantly to democratic rule construed in terms of conven-

tional understanding of the republican tradition, the very notion of a democratic


198



10/23

state usually goes hand in hand with the formation of a clear demos or people. A

people characteristically hold in common a shared political identity that can

supply the background political culture necessary for democratic legitimacy.

However, in addition to the growing multiculturalism within member states, the

EU is comprised by multiple demoi, each with a distinct basis of sovereignty

embodied in a unique set of shared values and traditions. Skeptics point out thata remedy to this lack of shared political identity is entirely unforeseeable for the

near future: there are no European-wide political parties and no shared common

language as repositories of common values. And skeptics also highlight that the

current expansion eastward will only augment the prevailing trends towards an

increasing rather than diminishing plurality of identities. Skeptics therefore con-

clude that democracy is best left up to the institutions of member states insofar as

the EU does not conform to the basic conditions required for popular sovereignty

on a model of freedom as noninterference: the self-legislating will of a territorially

defined people through a common political culture.

The Revisionist Approach

Revisionists stem from a variety of strands and generally agree with skeptics that

the European Union cannot emulate the preconditions for democratic legitimacy

that are normally required of member states on the model of self-legislating

autonomy.21 While they cede to the criticisms of the skeptics levied against

federalists, my contribution is to view democratic revisionism in terms of the

appeal to an alternative republican ideal of freedom as nondomination that is

more adequate for transnational democracy. As a further development of the

current array of positions advocated by democratic revisionists, I show how the

emerging system of basic rights in the EU can draw upon the overlapping forms

of sovereignty in a multiperspectival polity rather than from a single site. I will

thus align my proposal for a republican ideal of freedom as nondomination with

those democratic revisionists who argue that novel practices and procedures allow

for further development of the EUs unique transnational protection of basic

rights.

The realization of basic human rights through the OMC regards them as

unfolding along with the novel sets of shared challenges that often do not provide

lucid answers for how best to realize rights when abstract republican norms such

as freedom and equality offer little direction for their concrete implementation.

Pertinent examples include escalating trends in regional immigration that blur

distinctions between members and non-members, entrenched cycles of social

and economic domination through regional interdependence, and the growing

Balkanization of minorities with the recent demise of the Soviet and Yugoslavian

federated republics. Therefore, the experimentalist conception of rights allowsfor instances of rolling best practice rightswhen the constitutionality of a new

practice is uncertain or unknown.22


199



11/23

This rights-based, revisionist response to the democratic deficit allows for

forms of democratic participation that do not conform to the model of non-

interference in the popular sovereignty of a state. This confronts an error held in

common by federalists and skeptics who despite their differences both appealed to

noninterference in the sovereign self-legislation of a polity. In contrast, propo-

nents of the revisionist view argue that democracy will take different institutionalforms according to the particularities of its membership, location, and history.23

Revisionists concede that given the (1) absence of clearly demarcated borders,

(2) the lack of an explicit constitution, and (3) its multiple demoi, there are clear

reasons for the pessimism advanced by skeptics against federalists. However,

revisionists move beyond the basic terms of the federalist versus skeptic debate by

rejecting the plausibility for a democratic order to emerge out of the EU when

couched in terms of the language of freedom as noninterference. Those who opt

for a democratic interpretation of the revisionist approach highlight examples in

the history of EU institutions that suggest an array of alternative possibilitieswhere enhanced democratic legitimacy through novel forms of political partici-

pation may be developed.

1. Nothing about democracy, even representative democracy, requires that

territorial representation is an absolute necessity. Given the extreme complexity

of social and economic ties of interdependence in the EU as a modern global

economy, alternatives to conventional territorial representation are emerging in

their most developed form in the European Union.24 In accord with the concep-

tion of freedom as nondomination, a wide dispersal of privileges and entitlements

is already granted in the EU by virtue of relations of interdependence that usually

do not obey conventional territorial boundaries.

Revisionists contend against advocates of subsidiarity that the sovereign juris-

dictions set out by member state borders can in some cases be interfered with

legitimately by higher level EU institutions. For example, interference is justified

if these artificially constructed limits are found to subject groups to arbitrary

domination and/or exclusion, particularly those stateless groups that historically

have lacked a territorial basis for political representation. Most recently, for

example, Roma parties have organized politically in order to win seats in the

European Parliament, giving them political power over territorial nation states

that have historically not granted them equitable rights to political inclusion

when doled out exclusively in terms of territory or region. This and other such

examples like Basque representation in the Committee of Regions and Turkish

representation in the Forum of Migrants would demonstrate clear cases of novel

forms of effective political participation to answer to the deficit in the absence of

appeal to noninterference within fixed borders.25

2. Despite the pending status of the ratification process of a European

Constitution, drawing on the system of rights already present is to tap into thefeatures of this novel system that are already part of the material constitution of

the EU even if they are not yet explicitly formalized. As a way to disperse and


200



12/23

decentralize sites of participation in policy formation, revisionists emphasize that,

to this day, the EU balances multiple sovereignties in the absence of a single apex

of constitutional authority.

3. Revisionists also argue that the presence of multiple demoi could allow post-

national democracy to flourish by decoupling the conventional links between

exclusive popular sovereignty, legitimacy, citizenship, and the territorial nationstate.26 Given again the potential for the realization of basic rights on the rolling

model of the OMC, the administrative and cultural diversity of the EU member

states can be preserved and even increased insofar as minimal targets set by best

practice benchmarks are met or surpassed. Again, the conception of freedom as

nondomination calls for transnational institutions that grant rights to interfere in

the decision-making practices of the majority political culture when it is found to

institute measures of arbitrary exclusion. In particular, in the examples to follow,

we will find that nondomination offers an alternative to practices of noninterfer-

ence that all too often employ subsidiarity to entrench member states as sovereignover their permanent minorities and third country nationals.

Overcoming the Revisionist Dilemma?

As a potential challenge to democratic revisionists, skeptics and more conven-

tional federalists pose a difficult conceptual dilemma: without a single locus of

popular sovereignty and a shared political identity, what is left of the EU polity

for it to remain even recognizable as a feasible form of democratic governance for

its citizens?27

Revisionists reply that there is a clear body of evidence for democratic practices

to increase the legitimacy of the EU at the transnational level in ways that are

still relatively familiar to its citizens. The first is political representation through

elections: directly through the European Parliament and indirectly through the

Council of Ministers. The second element is a history of ongoing cooperation

through the creation of discursive practices between the diverse peoples of

Europe in the face of unforeseen problematic situations. These responses to real

and potential crises have allowed its citizens repeatedly to forge cooperative insti-

tutional links between its diversepeoples (emphasis on the plural) that have slowly

evolved into the emerging transnational democratic institutions of the EU.

With respect to a third overarching element, revisionists highlight that one

practice held in common by the two previous features of transnational democratic

rule recognizable to citizens is the daily exercise of EU citizenship through

enhanced political rights to deliberative participation. The concrete praxis of EU

citizenship is the best way to promote the republican ideal of freedom as non-

domination and thus serves to legitimate the emerging statuses associated with

incurring the fundamental right to diverse forms of political participation withinthe EU institutional complex. Each distinct form of participatory activity comes

with the unprecedented postnational right to EU citizenship currently protected


201



13/23

in the European Charter of Fundamental Rights and the established framework

of treaties.

Revisionists thus provide a rights-based account of democratic legitimacy,

arguing that citizenship rights can connote allegiance to multiple forms of differ-

entiated membership and conferred statuses in the novel institutions of the EU.

After all, it is relatively uncontested that one can already claim simultaneous formsof citizenship in cities, states, and regions. Revisionists question why the scope of

citizenship rights should not be extended one more level beyond the sovereign

nation state.

This multileveled conception of European citizenship is primarily a pragmatic

notion that focuses in particular on the democratic potentials of what diverse

participants can do in their transnational political activities. For this revisionist

track to offer robust democratic possibilities beyond the return to the conven-

tional nation state, it will require a new notion of democratic citizenship at

multiple levels that coexists with rather than replaces the univocal views of politi-cal identity previously linked to national citizenship. For further development of

this revisionist line of argument along republican lines, a brief mention of the

revisionist work of Ulrich Preuss provides a good point of departure.

Preusss twofold notion of both (a) coping with and (b) gradually reducing what

he terms citizen alienage goes some distance in the attempt to develop a notion of

citizenship that balances republican universalism with multicultural diversity. His

view of multiple citizenship rights and statuses strengthens transnational demo-

cratic legitimacy through shared exercises of EU andmember state citizenship

rather than looking for EU citizenship to supersede or supplant national citizen-

ship. With respect to (a) coping with diversity as a major challenge to historical

republicanism, he finds that:

Alienage will probably be the hallmark of Union citizenship, a kind of permanent and

structural cognitive dissonance which, in contrast to the American case, is not likely todisappear in a unitary national culture in the foreseeable future. In contrast to most federal

states, Union citizenship is not likely to supersede national citizenship.28

And with respect to (b) a reduction of alienage through increased social and politi-

cal integration, he argues for the establishment of nondominating relationshipsout of the fact of complex social ties of interdependence:

. . . both statuses will co-exist, representing two different principles of political

organization. National citizenship uses territoriality as the basic means of integrating

individuals within society. Union citizenship presupposes a more abstract polity, whosemembership serves mainly to integrate individuals who, by all traditional standards, are . . .

privileged foreigners.29

This multifaceted notion of citizenship encourages citizens from distinct member

states to learn from and respect one another through nondominating republicaninstitutions of shared political participation, despite all their differences.

Preusss comments thus provide more comprehensive support for the initial


202



14/23

line of argument that freedom construed as noninterference is an implausible

ideal for the overlapping sovereignties of this complex institutional order. A more

dispersed model of citizenship and popular sovereignty is possible under this

differentiated institutional form only insofar as member states drop the imaginary

construct of exclusive jurisdiction over their powers of autonomous legislation

and opt instead for a view of freedom as nondomination. While conventionaltheories of republicanism have trouble making sense out of such postnational

forms of citizen participation within and between overlapping jurisdictions such

as in the opening example of decision-making in the OMC revisionists like

Preuss rather focus on the practices already in place.

One simple example of such a complementary coexistence of citizenship rights

and statuses is that distinctly European rights currently listed in the Charter of

Fundamental Rights are not merely reducible to the rights and statuses incurred

by membership in any given member state. Again, the revisionist proposal draws

upon a pragmatic notion of citizenship that seeks to expand the prospects of whatcitizens can do with this system of basic rights. An example of possessing Preusss

aforementioned status of privileged foreigner is Article 46 of the European

Charter, the right to Diplomatic Protection:

Every citizen of the Union shall, in the territory of a third country in which the Member

State of which he or she is a national is not represented, be entitled to protection by thediplomatic or consular authorities of any Member State, on the same conditions as

nationals of that Member State.

In such an example, this distinctly European right goes some distance in provid-ing a pragmatic pay-off for the universalistic statuses incurred through European

citizenship. However, instead of the creation of a shared political identity, some-

thing more akin to Preusss reduction in alienage would ensue insofar as a unique

relationship is sustained between a national of a given member state and the diplo-

matic authorities of another distinct member state. Answering how the abstract

republican ideal of freedom as nondomination can be further realized in concrete

policy initiatives that continue to reduce alienage will lead then into the final

section that considers whether such a status of privileged foreigner can also be

extended to resident immigrants and permanent minorities in the EU.

The Double Dilemma: Concluding Example fromEuropean Immigration

While the political practices of representation, ongoing cooperation, and citizen-

ship are relatively familiar democratic exercises that EU citizens can draw upon to

face the democratic deficit, there are also additional practices that, due to their

institutional novelty, may not initially be recognizable by citizens as democraticforms of participation. It is precisely these institutional novelties that allow

revisionists to respond politically to at least one key feature of the democratic


203



15/23

deficit where federalists and skeptics fall short: the increasing economic and social

dependence of the EU on its estimated 30 to 60 million immigrants and third

country nationals.

A revised threshold of legitimacy in terms of rights to political nondomination

counters this aspect of the democratic deficit at the transnational level in order to

face the ensuing double dilemma that is especially unique to the problems thatemerge through enhanced levels of immigration. Jo Shaw describes the dilemma

in terms of the potential for further European social disintegration if alienage

between citizens and non-citizens is not overcome: This double dilemma com-

prises the need to reinforce democratic traditions by including new waves of

immigrants into national citizenship, at a time when internal solidarity is at its

weakest.30

In order to apply an expanded view of political participation to the problems

posed by immigration, revisionists again appeal to novel forms of political inclu-

sion to incorporate immigrants politically instead at the more encompassingtransnational level. Responding to the double dilemma in a manner still consist-

ent with republicanism will require revisions of some of the basic features of this

tradition, leading into a concluding discussion of republican multiculturalism.31

In contrast to federalists and skeptics, revisionists therefore argue that the rights

to political participation associated with EU citizenship need not be confined

exclusively to citizens of member states and need not fall under a shared form of

European-wide solidarity, but rather should involve both national and European

measures of inclusion to achieve republican forms of integration without cultural

assimilation.

New republican practices are needed because currently there is no European-

wide constitutional consensus on the rights of immigrants and permanent national

minorities that have been agreed upon at the EU level.32 Individual member states

have widely divergent approaches to the minorities and immigrants. On conven-

tional interpretations of subsidiarity, both groups would fall within the sovereign

borders of member states under the jurisdiction of their respective constitutional

traditions. However, the proposals provided through the ensuing examples will

differ, focusing specifically on the political incorporation of Turkish immigrants

and permanent minorities at the EU level in order to develop a form of multi-

cultural republicanism consistent with revisionist practices.

As an encouraging recent development to support a revisionist interpretation

of the status of immigrant and minority rights, the aforementioned OMC is a

general method for the implementation of laws and policies in the European

Union that scholars have shown has an increasing salience to the status of human

rights for immigrants and permanent minorities in the EU.33 In addition to its

closer application to the real empirical state of affairs for the realization of these

rights, the Open Method of Coordination (OMC) holds a greater normativepotential for the democratic realization of rights from multiple levels of institu-

tional accountability than its alternatives.


204



16/23

As real cases to support the possible extension of the OMC to immigrants and

permanent minorities, there is an evolving precedent of basic rights to non-

discrimination and cultural diversity within most of the member states of the EU.

According to the accepted procedures of the OMC, the best practices achieved by

member states could eventually serve as benchmarks for the European-wide

implementation of the rights of national minorities and resident immigrants thatnow also fall under Articles 21 and 22 of the EU Charter.34And as an even more

significant development that would revise the entire institutional scheme for

protecting basic rights, the Commission has recently recommended transforming

the Vienna Monitoring Center on Racism and Xenophobia into a more expansive

human rights monitoring agency for allrights embodied in current EU legisla-

tion.35

In potential reply to the double dilemma of incorporation of immigrants into

political membership, this human rights agency would thus put enhanced moni-

toring pressure on member states to respect basic rights to non-discriminationof all residents.36 In addition, some non-citizens would also fall under these

monitoring standards since applicant states such as Turkey would be accountable

to matching the prevailing practices of member states in their recognition of the

religious, political, and cultural rights of minorities if they hope to increase

their chances of pending EU accession.37Although the scope and extent of such

monitoring would have to proceed on an experimental basis, the European

Convention of Human Rights already entitles foreigners without nationality of

any EU member state to appeal to the European Court of Human Rights and the

EU Court of Justice for the ongoing juridical recognition of rights.38

Instead of the conventional republican appeal to shared political identity, albeit

vague at this point, effective minority political participation can be invoked as a

best practice benchmark for member states to compare in emerging cases of dual

and plural sovereignty. The relevant rights to non-discrimination would receive

their expression in different member state legal and institutional sites in ways that

circumvent traditional forms of republican political membership secured by

abstracting from cultural particularity.39A principle of effective participation as a

monitoring benchmark can protect the rights of minorities if denied a minimal

degree of representation in the legislature by the majority in power. While the

following examples are limited to member state parliaments, these cases could

serve as a model for how to conceive of deliberation in the European Parliament

in the absence of a single locus of popular sovereignty. In such cases, the right of

minorities to effective participation overrides the majoritarian will of the people

specifically when their power is found to be arbitrary and foster political domina-

tion.40

For example, in Poland, the German minority is exempt from the 5 percent

minimum threshold for the election of deputies to the Polish parliament, where-as in Latvia and Estonia ethnic Russians are granted citizenship rights to vote

and run for office despite their lack of fluency in the native language.41 These


205



17/23

examples highlight plural national identities receiving rights to effective political

participation and representation outside the framework of a shared political iden-

tity and in the absence of any particular European-wide shared political identity.

The precedent of Russian representation in Latvia and Estonia offers an instance

of multicultural republicanism that even allows for the effective participation of

nationalities outside those holding official recognition as current EU memberstates.

A pertinent example of a related violation of such a right of minorities would be

the recent political move to undermine rights to effective participation of Turks

by the majority political culture in Greece. In this instance of political domina-

tion, members of the current Greek Parliament have raised the threshold above

its minimum 5 percent of the Greek population to prevent Turks from winning

seats.42 In such a scenario, EU-level human rights institutions could appeal to the

right to non-discrimination in Article 21 of the EU Charter. This would allow

EU-level monitoring institutions to interfere legitimately in the political affairsof Greece in order to keep the threshold at 5 percent and permit the Turkish

minority effective political representation.

Moreover, as additional support for my democratic rendition of minority rights

in the EU as a multiperspectival polity, these rights are not merely legal-juridical

as Turkish minority groups in the EU have drawn on both formal legal institutions

and the emerging institutions of civil society to organize politically European-

wide. Rather than promoting the relations of noninterference preferred by

advocates of subsidiarity, Turkish minorities refuse to remain unrecognized by

member state political cultures. Instead, they seek political recognition in differ-

ent member states in distinct ways that institutionalize forms of democratic

participation through the distinct legal cultures of each member state.

For example, in France, in light of its secular republican tradition, Turkish

minorities there seek enhanced rights to religious expression for a more multi-

cultural rendition of republicanism.43 In a different claim to rights to political

nondomination, in Germany, in light of its historical ties between nationality and

citizenship rights, Turks seek rights to dual citizenship.44 Finally, with respect to

Turkeys own treatment of its minorities, a 1998 judgment of the European Court

recently upheld the right of the minority Socialist Party in Turkey to the freedom

of association as ensured by the European Convention on Human Rights.45This

overturned the prior judgment of the Turkish Constitutional Court that found

the Socialist, Kurdish-leaning party to be acting contrary to Turkish constitu-

tional tradition by calling for the radical transformation of Turkey into a federal

state. Such ongoing monitoring of Turkish practices by the formal procedures

of the European Court and the more informal European-wide mobilization of

Turkish immigrants residing in EU member states has led to the first ever public

debates in Turkey concerning the status of its minorities in light of possible EUmembership. These examples thus serve to show that, in contrast to the assumed

preference for the local in responses to the democratic deficit that appeal to


206



18/23

subsidiarity,46 EU-level institutions can in some instances encourage member

states and applicant states to realize human rights better and when fostering the

enhanced participation of diverse political programs also make these states more

democratic.47

This multileveled example of the realization of human rights occurs when

minority rights, religious, and cultural freedoms influence a number of levels andapply to dominated groups that extend across national borders. These legal

spheres emerge neither exclusively at the national nor the supranational level but

rather come about through both taken in concert. On the one hand, they emerge

through member and applicant state institutions, and on the other hand, they are

also realized only by virtue of appeal to rights to political participation embodied

in the EU Fundamental Charter and the European Convention on Human

Rights. Rights to effective political participation for minorities can therefore

derive from an array of monitoring institutions that include the Commission,

member states, EU-level courts, and transnational migrant groups in variousEuropean public spheres. Such permanent monitoring practices would thereby

foster opportunities for the pragmatic formulation of new spheres of legal activity

to socialize excluded individuals into rights-promoting institutions from an array

of possible levels in accord with modes of integration characteristic of multi-

cultural republicanism.

Conclusion

The revisionist protection of these political rights to a more differentiated model

of solidaristic inclusion extended to immigrants would thus present a diversion

from both federalist and skeptic models for facing the democratic deficit in the

EU that with their state-like qualities admitted difficulty conferring such political

rights on immigrants. Their shortcomings were ultimately due to the overt tie to

a shared political culture, common political identity, and practices of subsidiarity

normally associated with conventional forms of popular sovereignty. In the end,

the strict adherence to popular sovereignty and autonomous self-legislation as the

juridical protection of human rights ultimately undermined normative standardsof equal political participation for excluded persons affected by European-wide

policies and ties of social and economic interdependence.

On my multicultural republican account of political participation, those

affected by EU law and policy who cannot claim EU citizenship rights must still

be able to expand the system of rights to greater levels of egalitarian inclusion

when arbitrarily dominated by forms of decision-making that do not track their

interests. In this manner, basic social and political rights find their equal guaran-

tee at the more inclusive level of the European Union and serve to protect

immigrants already enmeshed in the networks of transnational civil society,including for example guest workers and third country nationals.

As for one clear point of concession to federalists, there is indeed an element of


207



19/23

conventional federalism in my approach. The right-based extensions of demo-

cratic citizenship proposed ultimately draw their binding force from EU-level

institutions and the supremacy of basic rights embodied in the EU Charter. These

entitlements foster the social and material conditions for the establishment of

nondominating relations between overlapping and sometimes asymmetrical

political allegiances. My extension of the revisionist track thus looks to encouragethe ongoing generation of multiple and overlapping sources of identity that

expand a federal system of rights in the EU in concert with the variability of

increasing trends towards multiculturalism.

However, in the attempt to develop a revisionist source of democratic

legitimacy beyond freedom as self-legislation and noninterference, European

citizenship begins to offer distinct democratic possibilities not envisioned by

federalists or skeptics. In the final analysis, both of these latter approaches failed

in their requirement of appeals to subsidiarity that problematically focus on what

a people already isor constitutional norms and objectives already laid outin formallegislation. As an attractive alternative, revisionists point to the emerging prac-

tices of postnational citizenship made possible by the OMC that can both preserve

national differences, and in addition, perhaps continue to move beyond Europes

violent history of rampant nationalism. Democratic revisionists therefore accept

the EU as a democratically legitimate polity insofar as it promotes cooperative

projects that identify citizens with one another as European andnational citizens,

in addition to extending obligations of justice also to privileged foreigners. Each

individual falling within such groupings would enjoy as many rights and privileges

as the dynamic social, economic, and legal ties of interdependence normatively

require under this more inclusive republican view of equal rights to non-

dominating political participation.

Notes

1. For the most developed version of this view, see e.g. Andreas Follesdal (2000)

Subsidiarity and Democratic Deliberation, in Erik Eriksen and John Fossum (eds)

Democracy in the European Union: Integration through Deliberation?, pp. 85110. London:

Routledge. See also Follesdal (1998) Survey Article: Subsidiarity,Journal of PoliticalPhilosophy 6(2): 190219.

2. I agree with Daniel Elazars (1998) relevant claim in Constitutionalizing Globalization: ThePostmodern Revival of Confederal Arrangements. New York: Rowman & Littlefield. Heargues that there is still too much statist hierarchy embedded in European political

culture and, consequently, political thought (p. 94).3. For a fuller exposition of republican freedom as nondomination, see Philip Pettit (1997)

Republicanism. Oxford: Oxford University Press. For extensions of this view of freedom to

the European Union, see James Bohman (2002) How to Make a Social Science Practical:Pragmatism, Critical Social Science and Multiperspectival Theory, Millennium: Journalof International Studies31(3): 499524. Bohman (2004) Constitution Making andInstitutional Innovation: The European Union and Transnational Governance, European

Journal of Political Theory 3: 31537.


208



20/23

4. For the first discussion of the EU as a multiperspectival polity, see John G. Ruggie(1998) Constructing the World Polity: Essays on International Institutionalization. London:

Routledge. See also Bohman (2002, in n. 3).

5. Joseph Weiler (1999) European Democracy and its Critics: Polity and System, in The

Constitution of Europe, pp. 26485. Cambridge: Cambridge University Press. While

Weiler does not use the term multiperspectival, he refuses to follow federalists or

Euroskeptics in their unitarian and monolithic approaches to settling upon atheoretical framework for assessing the democratic qualities of the EU. Due to the three-pillar structure of the EU, Weiler opts instead to speak in terms of three interspersed

modes of governance: international, supranational, and infranational, p. 271.6. See e.g. Kostas A. Lavdas (2001) Republican Europe and Multicultural Citizenship,

Politics21(1): 110. John Schwarzmantel (2003) Citizenship and Identity: Towards a NewRepublic. London: Routledge. For a multicultural approach to republicanism with Franceas the model, see Jeremy Jennings (2000) Citizenship, Republicanism and

Multiculturalism in Contemporary France, British Journal of Political Science 30: 57598.7. Pettit (n. 3), p. 24.

8. Ibid. p. 55.9. See Joshua Cohen and Charles Sabel (2003) Sovereignty and Solidarity: EU and US, in

Jonathan Zeitlin and David Trubeck (eds) Governing Work and Welfare in a New Economy:American and European Experiments, pp. 34575. New York: Oxford University Press. Theauthors explain (p. 347) that in the Open Method of Coordination:

. . . plans are periodically criticized by a panel of expert officials from other MemberStates in light of other plans, and each countrys performance is judged against its own

goals, the performance of others, and its response to earlier rounds of criticism . . . the

goal here too is mutual correction and not uniformity.

10. For a similar view of human rights as responses to shared problems, see Jrgen

Habermas (2001) Legitimation through Human Rights, in The Postnational Constellation:Political Essays, tr. Max Pensky. Cambridge, MA: MIT Press.

11. Cohen and Sabel (n. 9), p. 346.

12. Nick Bernard (2003) A New Governance Approach to Economic, Social, and CulturalRights in the EU, in T.K. Hervey and J. Kenner (eds)Economic and Social Rights Underthe Fundamental Charter of Social Rights of the European Union, pp. 24768. Oxford: HartPublishing. Olivier de Schutter (forthcoming) The Implementation of Fundamental

Rights through the Open Method of Coordination, in Olivier de Schutter and SimonDeakin (eds) Social Rights and Market Forces: Is the Open Method of Coordination of

Employment and Social Policies the Future of Social Europe? Brussels: Bruylant.

13. For an application of this three-step process of benchmarking to US constitutionalism,see Michael Dorf and Charles Sabel (1998) A Constitution of Democratic

Experimentalism, Columbia Law Review 98: 267473, 459.14. Ibid. p. 287.

15. Neil MacCormick (1997) Democracy, Subsidiarity, and Citizenship in the EuropeanCommonwealth,Law and Philosophy 16: 33156. For a similar view, see also Bohman

(2002 and 2004, in n. 3).

16. See Thomas Pogge (1998) How to Create Supra-National Institutions Democratically:Some Reflections on the European Unions Democratic Deficit, in Andreas Follesdal

and Peter Koslowski (eds) Democracy and the European Union, pp. 16085. Berlin:Springer Verlag. Also see Andreas Follesdal (1998) Democracy, Legitimacy, and

Majority Rule in the European Union, in A. Weale and M. Nentwich (eds)PoliticalTheory and the European Union: Legitimacy, Constitutional Choice and Citizenship, pp. 3448.

New York: Routledge.


209



21/23

17. This view is held by skeptics such as Robert Dahl of the prospect for a democratic orderto emerge out of the European Union. See his (1999) Can International Organizations

be Democratic? A Skeptics View, in Ian Shapiro and Casiano Hacker-Cordon (eds)

Democracys Edges, pp. 1936. New York: Cambridge University Press. I will look at theskeptical view more closely in the next section.

18. Here a distinction is necessary between the European Union (EU) and the European

Community (EC). The Maastricht Treaty divided EU competencies into three separatepillars of decreasing degrees of Community influence over the respective realms ofpolicy. The Community Method generally applies only to first-pillar issues of the EC

that are largely economic, social, or environmental, including international trade. It doesnot apply to the second pillar, Justice and Home Affairs (the interaction between

European Union and member state judiciary) or to the third pillar: Common Foreign

and Security Policy.19. Consider Robert Dahl (n. 17) as a philosophical advocate of the skeptical view of the EU.

See also Dieter Grimm (1995) Does Europe Need a Constitution, European Law Journal1: 282302.

20. Philippe Schmitter (2000) Designing a Democracy for the Euro-Polity and RevisingDemocratic Theory in the Process, p. 236, in I. Shapiro and S. Macedo (eds) Designing

Democratic Institutions, pp. 22450. New York: New York University Press.

21. Ibid. p. 239. For a similar view, see MacCormick (n. 15). See also Richard Bellamy andDario Castiglione (2004) Legitimizing the Euro-Polity and its Regime,European

Journal of Political Theory 2: 734. In addition, see the following revisionist works fromadvocates of democratic experimentalism. Cohen and Sabel (n. 9). Dorf and Sabel (n. 13).

Oliver Gerstenberg and Charles Sabel (2002) Directly-Deliberative Polyarchy: AnInstitutional Ideal for Europe?, in Christian Georges and Renaud Dehousse (eds) Good

Governance in Europes Integrated Market, pp. 31641. Oxford: Oxford University Press.

Oliver Gerstenberg (1997) Laws Polyarchy: A Comment on Cohen and Sabel,European

Law Journal3: 34358.22. Dorf and Sabel (n. 13), p. 445.23. R. Bellamy and D. Castiglione (2000) The Uses of Democracy, p. 72, in Erik Eriksen

and John Fossum (eds) Democracy in the European Union: Integration through Deliberation?London: Routledge.

24. For a more complete development of such an idea of unbounded territoriality that is

consistent with the revisionist approach to the democratic deficit, see Ruggie (n. 4), p. 27.25. For a good discussion of the Forum of Migrants, see Rika Kastoryano (2003)

Transnational Networks and Political Participation: The Place of Immigrants in theEuropean Union, in Mabel Berezin and Martin Schain (eds)Europe without Borders:

Remapping Territory, Citizenship, and Identity in a Transnational Age, pp. 6485. Baltimore:Johns Hopkins University Press. See also Ruggie (n. 4), pp. 1901.

26. For an advocate of this branch of revisionism, see in particular Ulrich Preuss (1996)

Two Challenges to European Citizenship, in Richard Bellamy and Dario Castiglione(eds) Constitutionalism in Transformation: European and Theoretical Perspectives, pp. 12240.

Oxford: Blackwell Publishers. For a similar view of EU citizenship, see Jo Shaw (1998)The Interpretation of European Union Citizenship,Modern Law Review 61: 293317.

27. Although Schmitter is a revisionist democratic theorist, he raises a similar remark (n. 20),p. 242: If the EU as a nonstate will have to come up with novel institutions if it is to

democratize itself, then it will run the risk that both politicians and citizens may find it

difficult initially to recognize these novel rules and practices as democratic.

28. Preuss (n. 26), p. 138.29. Ibid.


210



22/23

30. Shaw (n. 26), p. 317.31. For an opposing view, see Schwarzmantel (n. 6), p. 50. He thinks the forms of inclusion

characteristic of democratic revisionism cannot provide an enduring basis for democratic

community. I argue that the OMC can provide the forms of reciprocity and solidarity heseeks and the system of rights in the EU can offer the decentered participation required

for something analogous to his new republic.

32. Will Kymlicka (forthcoming) The Evolving Basis of European Norms of MinorityRights: Rights to Culture, Participation, and Autonomy, in John McGarry and MichaelKeeting (eds)European Integration and the Nationalities Question. New York: Routledge.

33. See Alexander Caviedes (2004) The Open Method of Coordination in ImmigrationPolicy: A Tool for Prying Open Fortress Europe?,Journal of Public Policy 11(2): 289310.

For a good discussion of minority rights and the OMC, see Guido Schwellnus Much

Ado about Nothing? Minority Protection and the EU Charter of Fundamental Rights,in Constitutionalism Web-Papers: ConWEB No. 5/2001 found at

http://les1.amn.ac.uk/conweb/.34. However, due primarily to the relative success of the OMC in other policy fields, at

present the member states of the EU are reluctant to follow the recent recommendationsof the Commission to subject immigration policy to the OMC. Caviedes (n. 33).

35. Commission of the European Communities (2004) Communication from the

Commission: The Fundamental Rights Agency Consultation Document, Brussels, 25Oct. COM (2004): 693.

36. Kostaryano (n. 25), p. 82.37. A recent study of modern Turkey found that unsettling elements of its recent history

might have been subverted if it had implemented basic constitutional principlesenshrined in the set of treaties that contributed to the formation of the modern Turkish

state. Examples from the Lausanne Treaty of 1923 which serves as the basis for the

modern Turkish state and its foreign relations include tolerance towards all religions and

non-discrimination in the use of minority languages.38. Joseph Weiler (1998) points to the case of Gayusuz versus Austria that went to the

European Court of Human Rights and led to the extension of social security benefits to

third country nationals (1998) An Ever Closer Union in Need of a Human RightsPolicy,European Journal of International Law 9: 658723, 719.

39. Jennings (n. 6), pp. 58495.

40. Pettit (n. 3), p. 180.41. Kymlicka (n. 32), p. 18.

42. Ibid. p. 19.43. Jennings (n. 6), pp. 59394.

44. Rika Kastoryano (2002) Citizenship: Beyond Blood and Soil, in Mohsen-Finan Leveauand Wihtol de Wenden (eds)New European Identity and Citizenship, pp. 10116.

Burlington: Ashgate Publishing.

45. Bruno de Witte (2002) Politics versus Law in the EUs Approach to Minorities, in JanZielonka (ed.)Europe Unbound: Enlarging and Reshaping the Boundaries of the EuropeanUnion, pp. 13760, p. 145. London: Routledge.

46. For such approaches to the democratic deficit, see MacCormick (n. 15) and Follesdal

(n. 1). A third view of the EU federation advanced by Jrgen Habermas is to see humanrights and popular sovereignty as co-constitutive at the EU level. The emphasis on basic

rights is closer to my own view; however, his European-wide political identity is not as

amenable to the incorporation of third country permanent residents as my more plural

view. See Habermas (1998) Does Europe Need a Constitution? Response to DieterGrimm, in Ciarin Cronin and Pablo De Griff (eds) Inclusion of the Other, pp. 15561.


211



23/23

Cambridge, MA: MIT Press. (2001a) The Postnational Constellation, in The

Postnational Constellation: Political Essays, tr. Max Pensky, pp. 58112. Cambridge, MA:

MIT Press. (1999) The European Nation-State and the Pressures of Globalization,New

Left Review 235: 4654. (2001b) Why Europe Needs a Constitution,New Left Review 11:526.

47. Bruno de Witte (n. 45), p. 145, emphasizes that this was precisely the justification of the

judgment given by the European Court which found that It is of the essence ofdemocracy to allow diverse political programs to be proposed and debated, provided thatthey do not harm democracy itself.


212

Documents

Bowman 2007 - The European Union Democratic Deficit - Federalists, Skeptics, and Revisionists.pdf