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The Voltmer-model for polycentricity

The broader context of this thesis is to examine transition to and building of large
communities. The most dynamic process of an integrating community in contemporary times
is the EU. Often it is conceived today as an instrumental, uncharismatic and uncharming but
economically successful organisation in comparison to the nation-states. It seems to be
driving with a set handbrake. To help the EU it is necessary to know how the EU drives and
where it drives.
What is the EU and what will it be one day?
The second question asks for prophecy. The EU is constituted by its instruments, not by goals.
The EU is inherently open to fundamental changes in character according to the forces that
control the instruments. What the EU will be one day depends on this unknown variable.
What is the EU then?
The EU is not similar to a state, because it receives its power from the sovereign states and is
therefore itself never sovereign. If there are in principle only the categories of “sovereign
actor in public international law“ and ”not actor”, the conclusion is counterintuitive, because
the EU is at least something, and in many aspects as powerful as sovereign states. The
concept of sovereignty is linked to that of a nation-state. The questions I puzzled about for a
long time was therefore:
How is a nation defined and can the EU fulfil the criteria? How does a nation come into
being and can the EU make the same process? And if it can, is the EU on its way to become a
nation? Can nation-states conserve legitimacy at the side of a newborn legitimate EU?
To cut the answer short, a nation has two sides, one a construct of human will and one an
historical process. The latter does not exist for Europe in a sufficient degree. So in the end I
arrived at the conclusion that the EU is excluded of being a nation.
And it is certainly more fruitful for the analysis of a new phenomenon not to take too many
old concepts into it, because one might fail to grasp the new features.

On the other hand

every analysis starts from certain assumptions and without concepts nothing can be
understood at all. Reinventing the EU must therefore first assess the critique of it, which
hopefully reveals sufficiently in which aspects the EU is unique and what concepts should be
left aside for the analysis and synthesis of a new concept.

The first chapter will be on the democratic deficit of the EU in the large sense, comprising an
assessment of proposed remedies and the discussion of unchangeable presuppositions.

In the second chapter I present a set of ten rules for a possible revision of the EU treaty or the
EU constitution. It is supposed to be a well-justified piece of constitutional engineering. I will
give some examples of how the rules will work in practice and what advantages this will
have.

In the third chapter I discuss in more general terms what the model means and what
conclusions the normative model infers for the development of new concepts.

1 Markus Jachtenfuchs “Democracy and Governance in the European Union”, European Integration online Papers

http://eiop.or.at/eiop/texte/1997-002a.htm

Chapter 1:

The EU and democracy

“…We must realise that they have called into life a being the development of which could not
have been foreseen completely by the most gifted of its begetters. It was enough for them to
realise or to hope that they had created an organism; it has taken a century and has cost their
successors much sweat and blood to prove that they had created a nation.”

Justice Holmes on the United States

, (1920)

After Choate’s definition

the democratic deficit is an expression pointing to several

inconsistencies in the institutional organisation of the Community.

There is a lack of accountability, transparency and openness: The commission is a non-
elective independent body that does not act on the behalf of national parliaments. The
Council, as representative of governments is indirectly elected, but with increased majority
voting the national parliaments cannot hold the representatives accountable: They could have
been voted down. The EP lacks some of the traditional attributes of national parliaments. It
cannot initiate legislation or raise taxes, and has not yet effective ways to overthrow the
executive.
Choate explains that how you view the democratic deficit depends on how you view the
community itself. There are three archetype positions.
The functionalist views the Community as an administrative union to achieve certain results
in a pragmatic way. This view sees no need for democracy on the EU level, because it ignores
the self-identity of the EU at all.
The confederalist sees the increasing self-identity of the EU, but is against. To democratise
the EU would mean to strengthen its legitimacy and self-identity. This erodes sovereignty,
which the confederalist wants to preserve. As ideal the EP, the directly binding force and
majority voting in the Council is to abolish.
The federalist wants the United States of Europe. The ideal are existing democratic states like
federal Germany or presidential US.

Choate aptly summarises the current positions in these categories. It is very significant for the
discussion of democracy that the participants can be categorised through their position in the
sovereignty question. Are there national democrats and supranational democrats? When
conceiving of democracy as not inherent to a system, but a quest, an ideal

, democratic values

could be realised through blending of different mechanisms.

⊕

Blending democratic mechanisms

2 Missouri v. Holland, 252 U.S. 416, 433.

Abigail Choate ”The European Parliament and the democratic deficit”, p. 7.

In my opinion it points rather to the fact that the state-like agglomeration of people in Europe did not form in the same way as

great communities were formed before in history. Public international law dates from the time of the nation-states (18

century)

and the EU is its first sophisticated creation. Its institutions mirror the provenience of a level where nearly exclusively states are
actors.

Abigail Choate ”The European Parliament and the democratic deficit”, p. 3-4.

Benjamin Barber ”Three Challenges to Reinventing Democracy” in ”Reinventing Democracy, p. 144.

Then a fourth, totally different view can be construed. The polycentralist wants a more democratic EU, keep up democracy in

nations and allow still other centres to participate in the legitimizing process. This alternative is at the base of the following
chapters.

Underlined argumants and the conclusions reappear at the end of the chapter.

Teutemann holds that the results of EU policy have too little and indirect feedback by the
voter, who is only a marginal factor.

Control and legislatory competences are taken away

from the national Parliaments, though the European Parliament experiences no synchronical
enlarging of its competences.

This weakens democracy.

If the EP does not have any possibility of control, the national parliaments are likely to bind
their governments in advance to a certain position with the effect that negotiations in the
European Council become more difficult or even impossible

. The form of negotiation is

inherited from public international law of the 19th century, when the foreign office was a
secret office, and the treaties happened to be secret, too.
The national opposition is not represented in the Council of Ministers. Consequently the
frontline in the Council is constructed along national borders and not along interest patterns.
This might stress national provenience more than the unifying character.

The conclusion of

this paragraph is that any solution has to introduce a demos to the EU.

⊕

Introduce a demos, the direct feedback of the voter

Koja

speaks from the point of view of the general science of the state: To decide if a state is

rather a monarchy or a democracy, we must look to the way the state is governed. This
presupposes that state-power is unique. Not only from an anthropological-sociological, but
also from a judicial point of view the power of the state is vested in organisationally and
functionally differentiated organs (separation of power). We need to decide which one we
refer to when we decide on whether the state is democratic. Some argue for the organisation
of the highest power in the state, some for the constitutional power, and still others for the
power to make the basic political decisions, the power to define and allocate competences.

Let us now look to the EU, which has increasingly powers attributed to states, and take the
first criteria. Who has the highest power, the power to govern? An assembly of delegates of
the member state’s governments, which is in its turn instituted by another organ in the
member state, which is only then voted by the people.
Who has the constitutional power? And who has the power to define the basic political
decisions, the power to define and allocate competences? It is not the people, neither directly
nor mediated through a representational assembly. We must not forget that the decision-
makers are not responsible in front of the European electorate. They are to the people of their
state, but through a very long chain of legitimisation. This takes away most of the power of
the traditional way to legitimate all public powers through national parliaments. They form
governments, which steer together the EU, so that there is neither need nor place for a
European Parliament.
Confidentiality of the deliberations of the Council makes it difficult to hold it accountable.
The way in which the Commission initiates, draws up and issues rules as well as its almost
exclusive right to make proposals is criticised.
In sum the marginalisation of the EP in legislative matters and the decision-making
procedures in the Council of Ministers are a situation where policy making is delinked from
democratic controls and accountability.

⊕

Submit the public powers to democratic controls and accountability

Manfred Teutemann ”Rationale Kompetenzenverteilung im Rahmen der europäischen Integration”, p. 323.

Teutemann p. 325.

G. Vedel et al. ”Bericht der ad hoc-Gruppe für die Prüfung der Frage einer Erweiterung der Befugnisse des EP” in Bulletin der

EU, Beilage 4/1972 Brussels, p. 34.

Teutemann p. 326.

Friedrich Koja ”Allgemeine Staatslehre”, p. 76.

So far Koja, op. cit.

The literature

proposes most often to give more power to the European Parliament to

remedy this aspect of deficit in democratic control and accountability. Could it work?
Newman

starts out with the axiom that democracy means that non-governmental opinion

needs to be able to influence outcomes, expose injustice and incompetence and offer
alternative policies.

Newman confronts then the claims of the EP to more power with its

inefficiency and weak democratic legitimacy (EP polls are dominated by domestic affairs) -
which were exactly the source of the claims. Implicitly the circularity of the argument is
revealed. In claiming more power to strengthen its legitimacy the EP concedes that it lacks the
democratic legitimisation which is a precondition for power to be exercised.
Another irony is that the EP, by shouting for more power, produced the legitimatory deficit as
much as it denounced it. The EP imposed its view of the EU as a magnified federal state and
implicitly excluded the legitimisation by the chain through to the national electorate.
A third point is that the EP is a federal institution and the Council, which controls the
Commission, is under national control. Legitimacy on the national level is not an EU problem.
The EU problem would start with the transfer of power to federal institutions like the EP.
Seen like this the EP proposes a solution to a problem, which becomes a problem through the
effects of the solution. And the problem reaches out into the past, because which government
would have conceded a loss of sovereignty when it is not at least participating in the exercise
of the pooled sovereignty?
It is the executive power in form of the administration, which has preponderance. The EU
administration manages some 4000 regulations a year and the whole number of instruments
amounts to 7000 - 8000. Where is the power to control that? Not even the media could keep
track. Most modern parliaments became working-parliaments to be still able to control the
increasing activity of the government. If the EP tried to check the EU administration it would
be bound to fail. The issues are too technical and their political relevance is that of a mosaic
pebble.

The EU administration has to be checked on a more abstract level and with the help

of experts who work out alternatives.

The concept of a Parliament must not be taken out of its context into a sphere where it cannot
work properly. Historically, the Parliament was developed to counterbalance the power of the
government (13th century) and later to support a government, so that the role to exercise
control fell to the parliamentary opposition (18th century).

Where is in the EU the

government? It is not in the EU; it is coming from outside. The European Parliament can
neither support it nor bring it down. In addition there is not even necessarily a governmental
policy based on certain political ideals, as it is the case in national governments. This means
that the EU is governed by ephemeral consensus of the delegates and it would not influence
the next decision if this “government” could be chased.
The steering of the EU is impersonal and without ideals or motives which would make future
decisions predictable. There is no commitment to one specific alternative within the EU
treaty’s possibilities. Therefore the parliament cannot counterbalance.
A further argument is that the EP is a European institution and if it would substitute the
national Parliaments in checking the course of the EU, this would mean at the same time a
further shift towards integration.

For authors and further references refer to G. Vedel et al. ”Bericht der ad hoc-Gruppe für die Prüfung der Frage einer

Erweiterung der Befugnisse des EP” in Bulletin der EU, Beilage 4/1972 Brussels.

Michael Newman ”Democracy, Sovereignty and the EU”.

Newman, p. 173.

Cf. the further explanations under point 13 in Chapter 2 below.

As it will be seen later the model instigates whoever is expert to work for a better alternative and propose that it gets the

competency to decide.

Reinhold Zippelius ”Allgemeine Staatslehre”, p.391, 396.

George Ross “Jaques Delors and European Integration, p. 99. Cf. Also he paragraph on Koja below.

More power to the Parliament would not make the EU more democratic.

⊕

Check the EU on a more abstract level than the concrete decisions

∪

More power to the EP is no solution

Further doubts that a strengthening of the EP could reintroduce legitimacy, according to
Axtmann

For a parliament to generate democratic legitimacy it must be embedded in the political
process of the political community, supported by its intermediary institutions. These are
nationalised and simply and plainly absent on the European level. Such a structure has the
following functions:
1.

Representation presupposes a community that can be represented. There is no European
public, so the European Parliament cannot be representative.

Intermediary institutions reduce the complexity of the social and political environment of
the citizens so that they can cognitively and emotionally respond to it and act upon it.
Without, identification is improbable.

Intermediary institutions provide channels for the citizen to articulate support and
criticism, which otherwise are directed to the political system as such.

Parliamentary rule is rule of the majority. The majority rule has as precondition that the
minority can reasonably believe to have access to the majority position. For this there must
be no fundamental ethnic, linguistic, religious, ideological or economic cleavages the
decisions rely on, and there must be a collective identity so that the differences in specific
policy areas will not be dramatised into fundamental differences over the institutional order
of the political community.

To describe the consequences for democratic legitimacy, the objective and subjective
component of legitimacy have to be distinguished. A European public opinion and
intermediate structure could of course form, and the exercise off power would be subjectively
legitimated through consent, but this is not sufficient.
The objective side of legitimacy is the claim that the exercise of power is best for this society,
either by the way it is exercised or by reaching the promised goals (inner and outer security,
freedom, fair distribution of goods, increase of wealth, environmental protection etc.).

When

the nation-state gives away the exercise of power, then it says implicitly that it is not able to
claim that. Its objective legitimacy decreases in proportion to the gain in legitimacy of other
levels, e.g. the EU.
When the Principle of sovereignty claims that all legitimate power comes from the state-level,
it subscribes to the best exercise of power in all aspects. If the sovereign nation-state consents
to the development of non-national levels of legitimacy, it corrupts its own legitimacy. As
long as the alternative is only the same sovereignty, the resistance of the nation-states only
prevents that the same unsolved problems resurrect on the larger EU-scale.
A new concept should allow for birth of legitimacy on all levels. Then the nation-state could
become what it always should have been: Not absolute, but peaceful. The political system
would correspond better to society, a polycentristic and multilevel pattern. What sovereignty
keeps in its fist could spread upwards and downwards, allowing for decentralisation (seen

Axtmann Roland op. cit. p. 152-154.

Alex Singer “Nationalstaat und Souveränität – Zum Wandel des europäischen Staatensystems”, Europäische

Hochschulschriften Series XXXI Vol. 232 Political Science, Peter Land 1993 Frankfurt p. 35. Singer refers to Peter Reichel
“Politische Kultur in Deutschland” in Iring Fetscher and Herfried Münkler (ed.) “Politikwissenschaft. Begriffe – Analysen -
Theorien” Reinbek 1985 p. 112.

from the national level) and centralisation (seen from a higher, e.g. EU level) at the same
time.
The democratic deficit of the EU can according to Axtmann

be summarised as follows: In a

democratic constitutional state parliament represents the sovereignty of the people. This
sovereignty is realised in the legislative competence of parliament, especially the budgetary
powers. In the EU the Parliament’s rights are seriously curtailed. Its new powers of co-
decision in some policy areas cannot veil the fact that it is not a legislative chamber with
effective powers of sanction against the Council of Ministers and the Commission.
The EP

controls non-compulsory expenditure, implements or rejects the Community budget,

but cannot raise taxes or determine compulsory expenditure.
The EP has a formally powerful weapon with the motion of censure of the Commission. It is
similar to the power of national parliaments to demand the resignation of the government
when it fails to maintain a majority.

The motion was used only four times and all of them

were in the 70’s, when the EP was not yet generally elected. It never led to a dismissal. It can
not hold responsible a single member of the Commission nor avoid that the new Commission
will pursue the same policy. The Member States can even nominate the same persons into
office again. The complaints of the EP are more often directed to the Council of Ministers as
the main legislator

, but the EP cannot reach it with the motion.

Democratic processes have hitherto only functioned within national borders

. European

integration was equated with economic integration and could therefore be left to
administrators of economic rationality. Especially with Maastricht the EU overcame its role of
solving mere technical problems. Axtmann’s original idea to create the European ‘public’ is
to lift the existing national intermediary institutions into the European discourse. These
historically different intermediary institutions secure the democratic character of the Union
and enable the formation of a genuinely European ‘public’. He wants the national and
European Parliaments to cooperate to introduce national domestic issues into the European
context and to assess European policy proposals in their impact on the national political
system.

But when Axtmann considers little later the possibility of the development of a public sphere
in regional arenas of political interest, he has to concede that the “fragmentation of interest”
makes the formulation of a regional interest eminently difficult. Furthermore the introduction
of regions into the European sphere, e.g. by giving the Committee of the Regions more than
advisory powers or even giving it democratic status through elections, would rival the EP to a
political body with counter-interests. Where the EP needs integration to acquire legitimacy,
the Committee of Regions will fight for autonomy.

To have both institutions at the same

time is not possible, because they are playing again the null-sum game for legitimacy. But
why should we then prefer one to the other? Axtmann is silent on this question. But more
important is the observation that the intrinsically ‘regional’ issues have disappeared. The
national issues may still be there but become unsteerable without a common economic policy
and in my eyes there is no reason how the EU can in advance be said to be the arena where
issues are best decided. The EP alone, even with a European public, cannot represent all
interests European people have. The EP beside other institutions will only lead to a
distribution of legitimacy.

Axtmann Roland, ”Liberal Democracy into the twenty-first century”, p. 149.

European Parliament.

Abigail Choate ”The European Parliament and the democratic deficit”, p. 52.

This was clearly the case with the first two attempts of a motion of censure in 1972 (EP’s power of expenditure) and 1976

(milk powder). Choate p. 51-53.

Jürgen Habermas ”Citizenship and national identity: Some reflections on the future of Europe” in ”Praxis International” 12:1, 1-

19. Quoted by Axtmann op. cit. p. 164.

Axtmann p. 155.

Axtmann op. cit. P. 162.

If I interpret Axtmann right, he thinks that citizenship based on the French republican model
of political community, based on a sovereign legal system, is coming to an end and will be
replaced by the German ethno-cultural model of community.

But is the common descent,

language and culture more stable than sovereignty? Common descent relies on a myth, and
common language and culture are indistinct and of decreasing pertinence in our world. I think
the problem is the restriction of institutions to predefined territorial competences

∪

Known and approved mechanisms of democracy stem from nation-state experience and
cannot be exported to the transnational sphere without changing their meaning

⊕

Enhance a genuine European public formation and intermediary structures

⊕

Break up predefined territorial competences

Harden

founds his criticism to the two methods to tackle the democratic deficit, the

federalist and the confederalist solution, in his general view of democracy. Democracy has its
roots in popular sovereignty. Popular sovereignty has critical and affirmative democracy as
main aspects. The first questions, limits and constrains public power. The second is the aspect
that popular sovereignty is the positive source of legitimacy of public power and the
justification for the government’s authority to enforce obligations.

Thus popular sovereignty

delegates authority and limits it at the same time. The limitation is vital because the citizen
cannot choose to exit the jurisdiction.
Popular sovereignty needs a forum of trust, hitherto provided by the nation-state. Harden
states that there is not a sufficient degree of shared political identity between the peoples of
Europe to envisage a federal state.

Harden sees the federal state as the founding myth of the

EU, whose prospect frightened the people when it became closer to reality through the EU
treaties. The federalist vision is unacceptable.
The status quo lacks now the myth of the future federal state as legitimisation. In addition the
enlargement of the EU with the parallel spread of the majority vote in the Council leaves the
control of national parliaments more and more outside. The status quo is no option, either.
And of course can European integration not be safely reversed.
How to introduce democracy on a level where a demos does not exist? Affirmative
democracy is not possible, but critical democracy. All the Member States of the Union
acknowledge for example fundamental rights and freedoms and the Rule of Law. But
essential is for Harden that the Union has not furthermore the authority to determine its own
authority (Kompetenzen-Kompetenz), which leads to creeping centralisation through
legislation by the council and judicial interpretation. A “tribunal of competences” should
decide on the transgression of scope.

In the article Harden proposes flexible integration with a core competency which can be
enlarged either by revision of the treaties or voluntary partnerships between some of the
Member States.

Bogdanor

wants to reach higher democratic legitimacy for the Commission by its election

in a two-ballot system. If the Council is continuing to be the legislator, the governments will
not only have to negotiate amongst themselves, but in addition with the alien power of a

Axtmann op. cit. p. 167.

Cf. chapter three.

Ian Harden ”Democracy and the EU” in ”Reinventing Democracy, p. 132-143.

Harden, p. 134-135.

Harden, p. 136. Harden sees the federal state as the founding myth of the EU, which frightened the people when it became

closer to reality through the EU treaties.

Harden, p. 139.

Vernon Bogdanor ”The future of the European Community: Two models of democracy” in ”Government and Opposition” 21, 2,

1989, pp. 161-176. Quotation after Newman (above).

Commission. The common denominator will diminish beyond the present, criticised size. The
effect will not be a positive control, but only a negative veto-power and the system is likely to
be stuck.
The mentioned aspect of critical democracy, the Kompetenzen-Kompetenz, is the focus of a
technically very sophisticated and complicated work of Teutemann

. His point is that the

present allocation of competency is not rational and that a distribution into seven specified
communities would be salutary. He regrets that the competency to order the competences is in
the hands of those who would loose power in doing so.
His utmost sophisticated works shows by its mere existence that much work and controversy
is involved in such a redistribution of competences. Many countries have seen major
difficulties in joining the Maastricht treaty without consulting their people in a referendum if
they wanted competences to be “given away”. The rationale is that this is a revision of the
national constitution. In Germany revisions are limited in extent, therefore the
Bundesverfassungsgericht was driven to put up different conditions for the exercise of the
competency. This shows that the prevailing political theory regards the decision of the
national electorate as the only or at least the most legitimate procedure to relocate
competency. Even if Teutemann’s plans were a solution, they could not do without a
referendum.

⊕

Introduce critical democracy by a mechanism to define and redistribute the competences
(Harden). To do this, a referendum is necessary (Teutemann).

Lindström

distinguishes two areas of European integration, the economical-political and

the communicative-cultural area. The nation-state has reached in two hundred years of
systematic integration a monopoly in supplying basic communicational capacities, together
with the platform for further socio-cultural integration (civil society), and controls the process
of its own cultural reproduction. In the economic area the nation was first favourable for
development by breaking down medieval barriers and promoting an infrastructure, but
became then an obstacle.

Lindström’s conclusions are that a constitutionally secured balance

between the three main political actors (Brussels, nation-states and regional actors) has to be
established. He predicts that in creating that balance, nation-states will lose a major rationale
for their legitimisation. Their last resort will be cultural mechanisms of integration.
Plurinational states will confront ever stronger concurrence by ethnic communities, up to the
redefinition of borders.

The view that there are three main political actors is premised on starting out for the analysis
from the nation-state and discovering then one higher and one lower level. Both could be
differentiated further and as truthfully, the supranational level for example in discerning
Europe, the area of secularised Christianity, the western world and the globe. Lindström takes
into account three centres of integration, and in the economic-political area he conceives them
as working in parallelity. The picture he draws is still territorially anchored and static, but it
contains a first germ of polycentricity.

⊕

Establish a constitutionally secured balance between the main political actors

Manfred Teutemann ”Rationale Kompetenzverteilung im Rahmen der europäischen Integration”, esp. p. 193-199.

Bjarne Lindström “Nationalstaten, regionerna och det framtida Europa: på vägen till en ny integrationsmodell”.

The nation-state is too small for the production-network of the international communities of information and too big for

modern, sectorially differentiated economical growth. Lindström op. Cit. p. 22.

Lindström op. cit. p. 38.

Kohlhase

points to the interesting fact how federation theorists two centuries ago dealt with

a similar problem. They viewed the crisis not as a problem of the institutions, remediable
through better institutions and procedures, but as a problem of the people. They proposed new
behavioural patterns

, which would mean today education to a “European Citizenship”.

The

problem of lacking common values is shifted one level higher: The educator has to determine
which values to educate. This is a very undemocratic solution. But also in modern times the
democratic deficit was interpreted more as a deficit of the concept of democracy than of the
examined system.

∪

PR measures are not sufficient to produce legitimacy

Katz

in his turn can give more convincing reasons why the democratic deficit does not have

to be viewed as a problem. He asks what the motivation is to accept a state and notifies
common elements in contemporary technologically developed societies, whereof I quote
three.
1.

There is a tendency to split cultural identity from reason of state (Staatsräson).

Individuals are rather submitted to instrumental integration than through commitment to
symbols.

Modern states work in a way that solutions have more to do with objective problems than
symbolic action. To lead modern states requires more the manager-type of person than the
charismatic.

These points paint the picture of a secularised rational citizenry and if they describe at least
partially a reality, then initial legitimacy is no more a major concern. The EU needs not to
integrate on the cultural sector, its instrumental integration is high and still rising and the EU
has highly skilled experts to administrate solutions. A high degree of acceptance could be
expected, yet this is not the case.
Katz did not say that these motives are the only ones or that they suffice to make an order to
an accepted order, but that this rationale works in some aspects. The conclusion should
therefore be that in different areas different mechanisms, institutions and executive styles to
reach legitimacy are necessary. Viewing public communities through the spectacles of
rationality may still increase and spread to other areas, therefore the mechanisms should be
open to revision.

⊕

Install different mechanisms in different areas, open to revision

De Sousa Santos

perceives the democratic deficit of the EU as an indicator to what extent

the “hegemonic model of modern democracy is tied up with national time-space and state
action”. This would mean that the “deficit” is not a suboptimal situation, but a situation

Norbert Kohlhase “Einheit in der Vielfalt – Essays zur Europäischen Geschichte, Kultur und Gesellschaft.

“Gesinnungs- und Gesittungsbildung”.

44 Norbert Kohlhase “Einheit in der Vielfalt – Essays zur Europäischen Geschichte, Kultur und Gesellschaft, p. 24.
45 A different attempt to doctor the persons who perceive the problems rather than the problems themselves can be found in
also Wessels and Diedrichs (“A New Kind of Legitimacy for a New Kind of Parliament - The Evolution of the European
Parliament”

http://eiop.or.at/eiop/texte/1997-006a.htm;

), who try to understand the EU as a new kind of political system

characterised by fusion of the instruments of national, subnational and supranational actors. Their conclusion is, that the present
concept of democracy is not applicable to the object of examination. Cf. also chapter 3 under the heading`legitimacy`.
46 Daniel Katz “Nationalismus als sozialpsychologisches Problem” in: “Nationalismus”, p.82-83. (Retranslation!)

47 Cf. the conclusion after Choate above.
48 Bonaventura de Sousa Santos “Towards a new common sense - Law, Science and politics in the paradigmatic transition”, p.
286-387.

without known optimum. Democracy cannot transgress its national “time-space” to work in
local or transnational “time-spaces”, and adequate alternative models are “problematic”

Of course this view depends very much on the definition of democracy.

De Sousa Santos distinguishes the following four dimensions of the democratic deficit:

1.

The above discussed loss of direct democratic control over the actual process of
governance erodes the legitimacy of the integration process to the extent that the total
welfare of the Europeans is not demonstrated to enhance as a result of that integration.

Committees operate without democratic control or public involvement and are greatly
responsible for the lack of transparency and bureaucratic overload in the EU. There is a
connection to point 3 and 4.

Despite all structural funds economic and social disparities between the more and the less-
developed territories could not be eliminated. The more developed countries, incensed by
chauvinistic regionalisms, may conclude that the social cohesion funds have been draining
resources that might otherwise have been kept where they were generated. The less
developed countries realize that the gap that separates them from the more developed
countries is never closing. Their conclusion may be that the more developed countries
overbenefit from the internal disintegration of the weaker national economies resulting
from the integration process. In terms of social cohesion and global welfare legitimacy
can only be guaranteed by a both-win situation. Whenever the positive-sum game
confronts a recession in global welfare (as in the 1990s) the EU loses acceptance.

The role of European business interest groups in the development of integration is an
object of dispute. With the unfolding of the integration process, the relative balance
between capital and labour interest representation, which in some nation-states was
achieved in the period of organized capitalism, has collapsed in favor of capital. The
representation of the organised capitalism, mainly due to the professional lobbying of
business interest groups, is more effective on the community level. The shift of
administrative competences to the community level is bound to have effects on the
organisation of interest representation. The forms of national corporatism are not likely to
reproduce themselves at the community level. Instead some kind of transnational
pluralism will emerge. The preservation of the nation-states as key actors in the process of
integration functions as safety valve against this unbalanced representation.

If the federalists manage to lift policy making to the EU level, then the democratic deficit will
reemerge under the heading of labour underrepresentation. In the last consequence the
democratic deficit will continue until the EU is the true copy of a nation-state, including a
civil society with intermediary institutions. But the ingredients for a nation Europe are not
available, and the nation-states have their own “democratic deficit” in form of fading
legitimacy. If it is conceded that the EU is not and will not be a nation-state, federal or not,
the question for a new concept for the EU can be tackled.
The European people must be able to experience that lower global welfare is not a
consequence of the bad intentions of a coalition of developed countries against the less
developed, or of the bad intentions of a centralist EU against the nation-states, but due to the
economic system. They can only experience this when they are able to change it. Maybe they
will themselves come to prefer an effective “commitology” before a costly and transparent
institution. But maybe they find an effective and transparent way to do the job.

49 De Sousa Santos, op. cit.

Conclusions of Chapter 1:

What to do (or not to do) to legitimise the EU?

⊕

Blending democratic mechanisms (Choate).

⊕

Introduce a demos, the direct feedback of the voter (Teutemann).

⊕

Submit the public powers to democratic controls and accountability (Koja).

⊕

Check the EU on a more abstract level than the concrete decisions.

⊕

Enhance a genuine European public formation and intermediary structures (Axtmann).

⊕

Break up predefined territorial competences (Axtmann).

⊕

Introduce critical democracy by a mechanism to define and redistribute the competences
(Harden). To do this, a referendum is necessary (Teutemann).

⊕

Establish a constitutionally secured balance between the main political actors (Lindström).

⊕

Install different mechanisms in different areas, open to revision (Katz).

⊕

The EU has to find own, maybe new mechanisms and sources of legitimacy, because it is
not and will never be a true copy of the nation-state (de Sousa Santos).



More power to the EP is no solution (Newman).



PR measures are not sufficient to produce legitimacy (Kohlhase).



Known and approved mechanisms of democracy stem from nation-state experience and
cannot be exported to the transnational sphere without changing their meaning
(Habermas).

In the following chapter a demos shall be added to the EU by a new mechanism, which
legitimately redistributes competences between the political actors and leads to the formation
of a European political forum.

The indication of authors in brackets refers to the position developed from a discussion of their findings (underlined in the

text), not that they actually have pronounced this opinion.

Chapter 2:

“We recognise that referendums are not panaceas, not universal remedies for all the ills of
democracy. But referendums have been useful in ameliorating some crises and in resolving
some questions that established representative institutions could not manage. If hopes are
dupes, fears may be liars.”

Butler/Ranney

Charter of Rules relying on the Principle of the rational level of decision:
1.

All Europeans get a certain amount of votes for every decision.

The votes can be cumulated or spared for following decisions.

All Europeans can vote on all decisions (Territory is irrelevant).

New votes are distributed for every decision. After a certain time not used votes become
void (Abstention).

The votes decide if the competency to decide all cases of a certain kind is conferred to
another institution (Kompetenzenkompetenz in direct democracy). It can only be voted as
long as the decision is officially open to voting.

A decision is declared officially open to voting when a popular initiative reaches a certain
threshold.

Popular initiative must propose a democratically composed institution where the
competency can be transferred.

It is possible to propose a not yet existing institution.

If the outcome is that the competency shall not be transferred, it stays with the institution
that had the competency before (Default Rule: History).

10.If a majority of votes is given in favour of a transfer of competency to the designed

institution, the competency is transferred. (No qualifying quantity necessary, i.e. no
quorum)

Commentary to the corresponding rules:

1.

“All Europeans…”

In principle the system is able to integrate the globe, but it works also on the smaller scale of
Europe. It would be a perfect lesson in democracy if also non-Europeans, which have at least
some kind of justified interest to participate in the decisions, could vote. In this context we
should not forget that the EU is rather a new Empire

than a new nation-state: It has the

intention to expand and it has no a priori definition of itself

. The EU should welcome those

who are already within its borders to participate in the res publica and invite them, in analogy

David Butler and Austin Ranney (Ed.), “Referendums around the World”, p. 263.

The EU is exempted to decide where the borders of Europe are. These borders cannot be found in the outside world. Before

“historical incidence” or power decided. Today it should be the people.

Hannah Arendt, “The origins of totalitarianism”. Source according to Pfaff below.

to the “Civis Romanus sum” of the Roman Empire

, to say: We are Europeans. They could

keep their nationality and specificity as long as they commit themselves to the European
rights and duties. They are already exposed to most of the duties anyway. Under the pretext
that they are not nationals they are excluded from most of the rights, for example governing
themselves. And even if they could participate in the decision on the rational level of decision,
they will still lack representation in the parliaments. I personally would give them also the
right to vote for those, but this is another question.
“…a certain amount of votes…”
Every individual has the same interest to lead a happy life, so every individual is attributed the
same resources. To be able to weigh properly there has to be a higher number of votes,
according to the necessary fine-tuning of the weighing.

2.

“The votes can be cumulated”

Cumulating of votes is already reality in Bavarian local, regional and intermediary level
elections

. Experience has shown that the electorate has in principle no problem to seize the

functioning, although there are not only two, but up to several hundred alternatives and in
addition a maximum amount of accumulation for each alternative. Here would be only two
alternatives and the maximum amount of votes is given naturally through the voting resources
of every voter.

“…or spared…”

Not voting increases the own number of votes in the next vote.

3.

A categorical restriction is not necessary. If the decision is concerning a territory far away,
interest in voting will be small. Voters will therefore restrain themselves and need not to be
excluded. The scarcity of the votes recruits the actual electorate from the potential electorate.
Anyway no just criteria can be found for exclusion.
The rule foresees for example movement. If someone will soon move to a place, but is not yet
registered there as a voter, he is cheated of the chance to determine a part of his destiny. This
seems a very marginal problem, but with the increase of decisions and of movement it will
play a greater role in the future.

4.

The value of the votes decreases with their age. Example: Every European gets 40 votes per
poll. If they are not used they lose 50 % of their value and 20 will be left in the second poll to
be added to the new 40 votes. She can use 60. If she does not, again half of them can be taken
into the next poll and now 70 are available. This can go on until the loss equals the 40 new
votes coming in, so that the maximum of votes to be accumulated is 80

. The votes of the

first poll are consumed after six to seven rounds of voting

. The following table shows the

increase of votes.

Jan

Feb

Mar

Apr

May

Jun

Jul

Aug Sep

I have got the hint from William Pfaff, “The wrath of nations”, Touchstone 1993 New York.

Gemeinderats-, Landtags- und Landratswahlen. Cf. BayGemO, BayWO and BayLWO.

Or 79 if a queer number of votes is cut down instead of rounded up.

Depending again on how half votes are dealt with. The forty votes go down to 20, 10, 5, (3), 2, 1.

The names of the months represent the fictive names of referendums.

Jan

Feb

Mar

Apr

May

Jun

Jul

Aug Sep

Old votes

50 % of old votes

New votes’ plus

Totally available

This technique corresponds to inflation. The inflation rate is here 50 %, and gives a certain
incentive to use the votes.
The inflation rate is of utmost importance to optimise the relation between what can be called
the power of age (P

) and the power of propaganda (P

). The power of age is the relation of

maximum voting power V

max

to the minimum voting power V

min

(the incoming votes): P

a =

max

/ V

min.

is two in the example above (80 divided through 40 = 2). The number indicates

how strong the part of old votes in decisions can be. If votes can be accumulated to a high
degree, then old votes will decide to a considerable part. P

is the opposite of P

: P

p =

min

max

or 1 / P

. It indicates how easy it is to influence the decision by propaganda.

There are two disadvantages if P

is too high: Some voters, either because they are new in the

system or because they have newly released their votes, are nearly excluded from deciding.
With P

= 10, some voters are ten times more important than others. The risk that good

experts are excluded and the legitimacy of the decision as decision of the whole demos are
great. It resembles very much former qualifications for voting. The second, related
disadvantage is that buying of votes, lobbying and opportunistic use of votes increases in
proportion with the extent of control over the decision. Solutions can be adopted, which
would never be proposed under the critical eye of all citizens.
If P

is very low, and P

therefore high, there is not much sense in sparing votes, because

inflation takes most of them away. The situation is comparable to the low rate of savings in a
country with a high inflation rate, because it stimulates direct consumption. People will tend
to vote even in areas where they do not have experience or information and in this assumption
they can be more easily manipulated.
Nevertheless the negative influence of unconcerned voters falsifying the outcome is low. The
voter cannot foresee if future polls will not be of higher interest, because the polls depend
solely on popular initiative. To spare votes is in the voter’s own interest. The loss of not
having voted in an uninteresting poll is smaller than the risk of not having full voting power in
an important poll.
In both cases the quality of the information collected by the poll and integrated into the
decision on the competence is bad. In the first case because good information is unnecessarily
excluded, in the second case because misinformation is unnecessarily included.
The inflation rate is artificial and has to be adjusted according to the political system of the
concrete decisions, with particular focus on the proportion of old votes to new votes, which
should be generally around 1:1. The inflation rate is only one factor to influence that
proportion. It depends also of the quota of spared votes. This quota indicates if the current
level of voting power of citizens is in average low or high. From a comparable per capita
income, American people have in average only several thousand ECUs in reserve, whilst
Germans have several ten thousands. The same can be expected when these people participate
in polls. Different characters and different opportunities lead to a different quota of spared
votes, even with a stable inflation rate. The “American style” to use votes, i.e. to spend them
quickly, reaches a higher total of used votes, because fewer votes are lost through inflation.

Still, the “German style” to rather spare votes leads most probably to a higher effectivity of
every single used vote in respect of the political interest of the individual, because the level of
voting power is kept higher and participation in interesting questions can then be more
decisive.
If the voter perceives in average every seventh question close enough to vote, then the
inflation rate has to be 50 % to assure a relation of old votes to new votes of 1:1.

In poll six

and in poll eight there is grossly the same relation, so that the effect of differences amongst
the voters is lessened. If interesting questions are more frequent, the inflation rate has to be
higher; if they are less frequent the inflation rate has to be lower. It will not be so difficult to
hit the right percentage, because the voter will adapt her behaviour to the inflation rate.
The possibility to participate in relatively distant matters has however also a positive effect. It
promotes to a certain extent a public opinion, because the voter wants information what the
poll is about. In traditional elections people do not care very much about the polls, because
the vote is anyway gone after the poll. Here the votes are a scarce resource and the voter will
try to use it as profitable as possible. The citizen will want to be informed for the own
interest’s sake and will engage oneself more likely for a cause which she understands to be
hers, to be limited in scope and time and with higher chances that her engagement shows in
the result. The constellation can be compared to spontaneous civil initiatives
(“Bürgerinitiativen”), which have for the same reasons become so popular and successful in
the last decades. To a certain extent the reasons for their success are reasons for the crisis of
political parties.
Competencies are usually so general that a voter can hardly predict if there will not once be
made decisions on grounds of this competency which she might refer to her: A further
incitement to be vigilant.
The poll-register will have to keep track of the votes of every citizen. This involves a problem
of confidentiality of the vote, because the poll register shows exactly the preferences of every
citizen, which is not the case in traditional polls. Many technical solutions are applicable. I am
thinking of a personal code to open the “vote-account”. More futuristic is privatisation of
those accounts: They could be kept parallel to any bank account and the bank is responsible
for the secret. The public sphere would avoid temptations and safe money.
To keep administration-cost low only one deliberation per poll should be accepted, even if the
person has votes left.

5.

The competency has to be clearly defined in a text, because this text is proposition of a
constitutional law to be interpreted by a court in case of litigation.
The procedure will not be very different from elections to the European Parliament.
Electronic media might be used to lower the cost of the more frequent procedures. In this case
I am against voting at home, even if problems of control could be solved. Elections are the
most public of affairs and should happen in public spaces. The public sphere shall not
penetrate into the private sphere and vice versa. In addition it is a demand of equal chances
that everybody has to come to the town hall, even if she has private computer access.

6.

“The impact of the referendum device on the policies and institutions of democratic polities
depends on good part on the degree to which its use is controlled by elected officials.”

Hence the inflation rate has to be adapted to the subjective distance of the voter to the question. The objective distance is an

a priori categorization and thus rather fictive.

Butler/Ranney “Referendums around the World”, p. 258-259.

must be popular initiative and not any other mechanism that decides on what and when a
referendum takes place.
It is essential how the threshold is set. A number of mathematical models are available. A
pure quorum cannot be applied, because on local levels the number of interested persons is
naturally small and large-scale decisions would have an advantage. A purely differential
formula (a differential measures the degree of growth or decline) would allow a small but
homogeneous and concerted group to provoke a decision.
I propose the following: In a first step the electorate for the initiative stage is found. Only the
people who live under the actual competency or will live under the proposed competency if
the initiative is successful, whichever group is larger, will be taken into account. This does not
predefine the interest groups. It starts from an historical reality (where the competency
actually is) and is open to change (the possible new majority is in focus). Then the quorum
and the differential method combine: A certain percentage of the electorate has to pronounce
its interest in a certain lapse of time.
The quorum is of lesser disadvantage here because it is calculated in percents of the
appropriate level. The total amount of a large-scale quorum has to be higher. Chances will be
equal on every level, given the same subject.
Yet inequality seems to remain comparing different subjects. Questions of common interest,
e.g. penal law competency, will more easily rouse a certain number of people than those
involving by their nature only small communities, e.g. GATT-negotiations. But this inequality
is not irrational. It avoids splitting up society further than necessary. Every new institution
costs and the smaller the number of concerned persons the lesser this additional administrative
cost is justified through the possible win. Political experience has also shown that the friction
between competences becomes higher the finer the line of distinction between them is. As a
rule an already small competency should not be split anymore.
The differential method will work very much like shown in the schedule above. If a person
has pronounced its interest in a decision, it will not be treated like the signature of a petition,
which can be drawn up years, after it was made. Its worth will decrease over time, in an easy
example 50 % per month. This forces the popular initiative to motivate their supporters to
pronounce themselves in one month; otherwise it can be regarded as failure, because it
becomes increasingly difficult to get people every month to leave their pronouncement for the
same matter again and again. This method avoids that huge mechanisms are built up to go
around and collect signatures one by one. Either there is a relatively spontaneous public
opinion in a burning matter or the interest is too low. The problem that protest voting is
usually unreflected and emotional-irrational can still be filtered out in the actual poll. There
could be a preparation-time of one month for campaigning and information. In the first place
it is of utmost importance that the protest can be expressed in the political sphere. Protest is
meaningful and should not be despised. Again, it should be possible to utter this protest in the
town hall by signing the petition electronically. At this stage the use of private computers may
be allowed.
If need is felt there can be an evaluation of the power of vote of the electorate found in the
first step. This means that already in the stage of popular initiative more weight is attached to
the pronouncing of a person with leftover votes (= higher voting-power if the decision is
opened). Then the evaluation of the chances of the popular initiative will coincide closer to its
result. On the other hand it will lead to a decrease in the use of the votes, because they
become valuable instruments even when never used in a vote. Evaluation of the power of vote
can be kept as an option to fight eventual misfits of the popular initiative.
When this model approaches reality there is time enough to define first when it shall come to
a decision and then to seek the appropriate formula in the circumstances.

“Democratically composed” does not only mean Parliaments, and not any Parliament can be
admitted. Apart from representational units also expert-commissions

or even natural persons

can be proposed. The precondition is institutionalised change and the necessity to regular
renewal of the investment with power. The other precondition is that there is an independent
system of protection of fundamental rights.
To simplify the task of the popular initiative the official agencies should allow for statistically
significant test-votes to show which proposed institution has the best chance to unite a
majority.

8.

If the popular initiative chooses to propose a not yet existing institution, it has to propose at
the same time the constitution of it or through what procedure a constitution shall be
established. The voter must know what consequences an adoption will have. I can imagine
that the side, which believes to take an advantage through that, will order a preview of the
estimated additional cost.
If globalisation and deterritorialisation theories are right, then the proposed institutions will
not be merely new territorial spaces, for example a Parliament of the Basque Country. It can
be expected that non-territorial organisations, transnational corporations

like companies,

associations and syndicates emerge and take over political responsibility.
Questions of morality, such as euthanasia and gene-technology, are prone to special solutions.
Some countries like France or Germany have installed expert commissions with low
democratic legitimacy. Such panels could be given legitimacy if its members were elected
directly. But even the institution of direct democracy instead of a smaller organisation can be
a favourable alternative.

The people can give themselves the right to decide questions of the

first level through referendums: The sovereign delegates his power not entirely.

One of the options is always the status quo. If there is no majority for the proposal, the
opposition against the traditional solution is too weak and the status quo can be assumed to
be fair enough. This rule prevents a “big-bang” when the transition from the actual
distribution to the possibility of relocating takes place. The forces engaged will not call for a
vote without having prepared the electorate through some sort of campaigning. Other
calming factors will be that the procedure is so new, that the public forum lacks and that
people might prefer after all the known evil before the unknown.

10.
A quorum would be unfair, because competences with a lesser number of interested votes
could only be transferred with greater engagement of the concerned. A market price is as true
when the market is small as when the market is big. The small market has already the
disadvantage to be easier to influence. A low total number of votes does not necessarily hint
to a low level of concern of individuals. It could be that the concerned group is small.

Some examples:

Example 1:

Which is what the first “parlements” in history were: advisors to the French King,.

The terminology "transnational corporations" (TNC’s) is from de Sousa Santos op. cit. p. 253.

Cf. the AI-example below: It is possible to give the right to set a veto by referendum against certain decisions!

Consider the problem of whale fishing by an EU Member. The EU and the Member State both
claim competency, obviously because the Member wants to fish the whales before its coast
and the EU wants to forbid this for ecological or animophilic reasons.
The model works as following: A poll takes place, most probably by modern mass
communication instruments, and all Europeans can vote. This does not automatically mean
however that the EU wins, because the voting resources of the citizens are limited. An
unemployed mother of three children in south Europe will most probably judge the whale
problem of too poor importance to her in comparison with certain social policies the
“competency“ of which will be decided in a soon following poll. She will spare her voting-
resources for that. The whale-fisher though will invest the integrity of his annual votes
because this question is of overwhelming importance to him. Someone in-between, e.g. a
well-off intellectual in central Europe will give a certain percentage in relation to his other
interests.
It should be remarked that it is not the problem itself, which is decided, but only the allocation
of the competency. The decisions themselves are too numerous to be taken away from the
representative system. What is introduced by heaving the decisions on a second, more abstract
level, is similar to the famous ”veil of ignorance”

, except that Rawls‘ veil is virtual. Here the

veil is real. The people lack information about the actual cases that will be decided on grounds
of the competency-decision that they are about to make. It forces the people to make the
abstract rules as just as possible. On more abstract level decisions are fewer and direct
democracy is workable again

I have chosen this example, which involves current interests of Norway, a non-member state,
to show that such a system would allow for special regimes and would nevertheless not
endanger over-all integration. From the view of the whole system the Norwegian citizens are
as close to the centre than any other European. Everybody is and so the Norwegians are
preoccupied about their national (local, regional) identity. This procedure allows them to
preserve their specificity and be integrated at the same time. A ”Europe à la carte” is in this
context no danger to the “acquis communautaire” or integration as a whole.
What if people would use their votes only to express disintegration?
Such a tendency could be dealt with a reserved quota for the EU level, but I do not think this
is necessary.
First, globalisation processes favour the larger entity. Second, the number of decisions does
not mirror their importance. A hundred of cultural exceptions like the whale fishing do not
outweigh the integrating power of the competency over the European currency.
Third, the integrating forces will counterbalance the impact of disintegrating policies. In the
current EU are fixed four freedoms. All Europeans can therefore come to the region with the
favourable fishing-regulations and profit from it, and they will come indeed in proportion to
the estimated benefit. If whales promise such extraordinary revenue for the fishing-industry,
they will just buy a quota or get a license or whatever is required. The region risks the loss
(overfishing, unemployment in traditional sector of work, bad image in a tourist’s eye etc.)
without a chance to get the profit. If whale fishing is rather of importance for reasons of
tradition than profit, the tradition can be preserved. A Norwegian hotel-owner for example
might vote with vehemence for an EU competence: He wants to show his clients whales.

Example 2:

John Rawls, "A theory of Justice".

About the technical possibilities and procedural constraints: Ian Budge, “The new challenge of Direct Democracy”, with

further readings.

Amnesty International (AI) might get the competency to issue directives on criminal law and
criminal procedural law. This is unlikely. AI may get instead a veto right on any such law to
be issued in the EU. In the last assumption the competency would only partially be taken
away and such a proposition might be therefore more prone to be welcomed.

Example 3:

A certain decision is largely contested. The public wants to revise it. It has no direct influence
on the decision-makers in the EU, and elsewhere not before the next election. This day come
there will also be other behaviour to judge of and the decision-makers often stay in
responsibility because of their over-all performance. Here the public can take popular
initiative at any time, initiate a vote and give the competency over the complex (including the
contested decision) to another institution willing to revise it.
The clue is that the receiving institution does not have to have any territorial or functional link
whatsoever with the consequences of the decision. This sounds like a very bad solution,
because making laws for others usually leads to suppression of the others. But as there are no
consequences for the institution, there are no advantages either. Even if it may sound weird,
this tactics could be very rational. It would introduce a referee in explosive matters. Let us
assume that it is as devastating for the population in Northern Ireland when the English
govern as it is when the Irish do. A local govern government is in the intention of neither of
the sides and it would most probably be too small to resist the influence from the opponents.
Let us assume that the English Protestants hit once more the wrong string and the Irish feel
offended. Then this part of government, say the religious and cultural resort, could go to the
Parliament of the state of Luxembourg. They are on neither side, they are far enough not to be
corrupted and the world will watch them. Maybe they have proposed a good solution when
the popular initiative came through and Europe gives them the credit to try it out. Anyway it
can only be better than what has been done in Northern Ireland in the last century. Decisions
are easier to accept from a referee than from an opponent with a history of betrayal. Most
probably neither the English nor the Irish would like that either, but they would experience
that all Europe is very concerned about their ongoing civil war and that they are determined to
find a solution for the horrible situation of Europeans living in hatred and violence. And how
many Irish or English are really happy with the level the decisions are made at now? The Irish
feel ruled by foreigners, and many British people see no point in sending soldiers there which
every once and a while get killed. Neither side would vote ferociously against.

The Luxembourg National Parliament represents in this example an expert assembly with
democratic legitimisation, a combination rarely to find. In other settings expert institutions
could even reach a monopoly.

Example 4:

If the Dutch would dispose of a clearly superior strategy to fight drug-addiction, it would
most probably take the more conservative governments in the EU more than a decade to
implement it. What, if the competency to make laws in this resort comes to decide? The more
conservative people are in comparison older and live in rural areas, so they are less personally
confronted with the social problems of drug-addiction. Younger people may have a friend
who is hit and they may have tried drugs themselves, and city-dwellers feel the urge of the
problem every day. The progressive side has a good chance to win their case even against a
numerical majority of conservatives, because of the intensity of their opinion. The Dutch
Parliamentary system would be able to rule Europe’s drug policy because of their expertise.

Cf. the discussion if the Luxembourg Parliament as non-concerned institution has enough related experience (last of the

questions following these examples).

A possible objection is that a law works differently in different environments. Maybe the
Dutch have found a solution for their drug problem, but for particular reasons it is not
effective in Spain. Then the Spanish can opt out any time they want by the same procedure.
I tried to show with the example of Northern Ireland that the possibility that unconcerned
people get competency to rule is no harm as such. This is what happens every day in our
national systems. Most of the laws are previsibly never to be applied to those who vote them.
A Member of Parliament can say that she is member of the nation the laws are for and that
they are therefore applied to her. This relies on the assumption that all people in the territory a
law applies to are instances of this law.
To be theoretically objected to a law and actually experience the consequences of the law is a
difference. Commercial law or penal procedure laws apply to specific groups or situations.
The Member of Parliament means purely emotional ties to her nationals. She does not know
the members her imagined community, nevertheless she imagines having a common bond.
Communities depend on communication and both become dissolved from territory and spread
out.

Unconcerned rule is no harm when it is not uncontrolled. As long as a bad decision-

maker can be sanctioned and replaced, we must not fear her. Aristotle distinguished tyranny
from monarchy along the same lines: If a rule is good or bad does not depend on the
numerical composition of the ruling body. If one, a few or all steer the state is from this point
of view the same. The importance of democracy lies in establishing control over the rulers
and the therewith acquired legitimacy

. Consent to the rule legitimates the rule.

Example 5:

Imagine Turkey as a member of the system. It can be assumed that its differences to the rest
of the EU are greater than for the other members. The difference has the same extent from
either side. In terms of the model: Turkey will put, according to the difference to preserve, as
much votes against integration as the rest of Europe will put for it. The greater amount of
people of the western European side will consider the question of Turkey’s integration of
relatively low interest and the smaller amount of Turks non-integration of higher interest.
Popular initiative will not rise when the chances for success are so modest, because the
Turkish people would use their votes to opt out in every single question presented. They could
not influence decisions in the rest of Europe, and the rest would be excluded from deciding in
Turkey. There is no difference to nowadays under the Principle of Territoriality.
But the gate to integration is open. Turkey could become, despite and thanks to its position at
the periphery of the continent, the centre for the EU’s foreign policy in the Near East. When
Turkey is disposed to act more diplomatically with its brothers in belief, there is a good
chance for that.
An objection might be that the model is open to changes, but without a motor to catalyse them
unable to move from the status quo. The weak point in this objection is that the interest of the
people is calculated from an outside point of view as homogeneous. However it is not so sure
that all differences are so precious to all Turks. I can imagine that a Turk strongly likes to
preserve her religion, but is not at all attached to a despotic system of Justice with torture in
prison. It would be an absurd deformation to claim that one cannot go without the other. The
access to an effective instrument of change is in itself the motor for long-hidden aspirations.
Human Rights activists risk today quite a hard life in Turkey, but with the backing of the
international opinion, which might become the majorities’ opinion in the new Europe many,
more would dare to stand for Human Rights. In addition the know-how of a tradition of
Human Rights implementation in the western parts of Europe would immediately at the
disposal of Turkey, which is even today not really unwilling but rather incapable of enforcing

Cf. chapter 3: “How community is building” and “polycentricity”.

Karl Popper, “The lesson of this century”, p. 70.

Human Rights. Turkey would not have to feel under tutelage and deprived of its national
sovereignty, because with the votes the Turks spare on this occasion, they can influence the
“national” politics if other states, for example buy out an anti-Turkish measure of the Greeks.
It is in this meaning that national sovereignty is given up. Conceived to protect the nationals,
now it cages them in value-systems they do not prefer.
The model exempts the EU from deciding on the worth of group-specificities. Only the
groups themselves can. Who could have predicted how much the Norwegians love whale-
fishing, the Swedish “snus” and the French cheese of raw milk, all at a certain time questions
of “to be or not to be” a member. All or nothing alternatives never do any good in politics.
The Union will not shipwreck because of some exceptions, but they must stay exceptions and
be equally distributed. The proposed Constitution promises to do so.

Some questions:

•

Why should we bother so much about competency when it is the concrete decision, which
is only important?

A quick answer is Weimar-Germany’s Enabling Law in 1933. Unfortunately history is too
controversial to make good arguments.
Our situation can be compared to that of a very complicated game. Can we only control the
game if we decide everything ourselves? It is enough to choose among the presented referees.
And today’s governments have an immensely complex game to rule with much less power. It
is cleverer to police the referees than to do their job by ourselves.

•

Can the system work properly when it is constantly reformed?

On one hand side many polls show that the model works effectively, that there is a vigilant
civil society and that the old, rigid system needed reform. On the other hand side an excess of
polls is a risk to every continuous policy and threatens the whole system.
Considering that polls cure misfits, a number of polls will be necessary in the initial period.
After those are cleared out, there will be no poll until new problems arise. The system will
work just as well as any contemporary federal constitution (though it is in-between federal
and supranational), with battles of competency

every once and a while when new

constellations arise and processes of social change have gathered greater impact.
There will be less to decide than thought, because competences are not endless nor can they
be split to infinite small units.

•

Will more frequent lobbying, buying of votes and generally higher influence on the
electorate not outweigh possible advantages?

There are positive and negative sides. On one hand voters could not be protected against
massive campaigns and demagogic interventions as they are now in times of elections.
Otherwise the freedom of speech would be restricted too much, because a large part of the
electorate will not participate in the specific decision anyway. For their interest it is not
election time. Only small measures like the interdiction to publish opinion-surveys are
possible. Also the problem of buying votes emerges in a new light. Abstention is a system-
inherent technical measure to increase voting power up to a certain limit. When maximal
voting power is reached, but no decision of interest is coming up, then the cost of voting for
the sake of someone else is very low. The own votes cannot be increased further for the
moment and until the next relevant decision voting power will presumably be restored.
Foreign interest will motivate to vote.
Again, we have to consider that we are talking about decisions of competency and that the
actual decisions made on their grounds are hardly predictable. One of the concrete decisions
could apply, to the disadvantage of the voter. If a person is incited to make an irrational vote
for someone else, the person speculates.
To vote without having an interest can also be seen as positive: Morality and rationality are
always disinterested.
I think that the problem of lobbying would decrease, because to manipulate a certain decision
two levels will have to be manipulated. For manipulation of the competency decision the
access to the votes is easier and manipulation less controllable, but the success is more

The Constitutional Court to decide the hard cases is the European People.

difficult to predict. The huge dimension of the system makes it more resistant. The stock
market can only work because it is big enough to make it difficult to control sufficient capital
to influence the market price. The same is true in this model: The “lobby”

is too big. The

risk of not getting the desired outcome despite all manipulation makes manipulation not
profitable. And when groups like parties or Churches motivate their supporters to go and vote
in a certain sense, they function as intermediary institution and help the system work. After all
the participation and information will rise and public forums can build around these semi-
official opinions.
Finally spending limits for groups can be included in the referendum law. The Canadian
province of Quebec did so in 1978 (also in their standard election laws), compelling groups
wanting to take part in the campaign to join one of the two committees created for the
occasion (one 'Yes', one 'No'). A spending limit is imposed to these two committees. This
legislative disposition comes from a similar one used in England. My prophecy is that in a
setting of unlimited and uncontrolled information by Internet those rules will become both
ineffective and unnecessary.

•

Does the popular initiative have to be in the territory the competency is to that time or can
other Europeans take them their right to govern?

Yes, it is possible that others take the right to govern out of your hands. But as every
European gets the same amount of votes, governing the affairs of others is paid by the other’s
government in own affairs.
Sovereignty is redistributed. Not territory but rationality or simply will is the criteria of
redistribution. By definition sovereignty is complete, encorporating all competences there can
be. Thus in the perfect nation-states sovereignty meant the same for all citizens, no matter if
the citizen lived in a big or a small, in a rich or a poor nation-state, near the centre or the
periphery. When all competencies are redistributed, every citizen will still have the same
“amount” of “sovereignty”. The collective “nation” will have lost it, but other collectives the
citizen is part in will have won it.
If a Norwegian is ferociously against whale fishing, then she resembles in this aspect more the
“ecological international” and belongs to the community of their shared values than to the
community of shared values of the Norwegians. She will be happy to trade that part of
imagined but not factual community in for the right to belong to her community and decide
along with it. To give an example out of our own experience to illustrate the difference, we
can think of an excursion with our class and with our peer-group or club. In the school-class
we formally all belong to the same group of pupils of the same age and area of residence.
Nevertheless we share only with some of our classmates enough to become friends, whilst
others can even become enemies. In the peer-group or club, we have made a choice and
preselected the candidates of the community ourselves. Even if still not all will become good
friends, experience shows that it is easier to feel comfortable and have a common identity in
the chosen group.
This is what it will be like, even when the communities we are talking about here are huge,
imagined ones and we cannot possibly meet everyone and become friends.

•

Will the system not favour the politically interested and vigilant and exclude all those from
representation who do not keep track with the numerous polls?

Here in the sense of “entrance-hall”, where the parliamentarians were hassled to vote for what the interest representant

wants.

The representation in the decisions themselves stays the same. The model adds a
possibility to influence; it does not take away.

You only have to be vigilant in your own business, which most of the people will be

anyway. Every person has some things of importance in life.
3)

Nobody loses by not participating in popular initiative. It can be turned down later by

voting. Thus it is much easier to maintain the status quo than to change things.
4)

There are fewer participants in every single question on the second level, so the influence

of every participant is higher. Participation becomes more attractive.
5)

In political theory the Parliament represents the whole nation. In fact elections normally

reach a participation of around 60 % of the registered voters which in their turn are only a
percentage of the national population, which again is not equivalent with the whole
population. 25 % of the living souls determine the representants and nevertheless the
Parliament represents all of them? This is because representants are not bound by the will of
the voters.
In the proposed system the people who do not vote are not abstainer in the simple meaning the
word has today. Abstainers may very well be interested in the question and be willing to vote,
but there are other questions they evaluate as more important. By their absence on the
“market” they contribute to determine the “price” of the decision. The fact of non-voting
bears information about how the individual judges the impact of the decision on her pursuit of
happiness. Not every area is of equal importance for an individual’s happiness. Some persons
enjoy their hobby so much that they do not care at all about some other matters. Utility rises
when the result is more influenced by those who enjoy the outcome more than others.
To give no votes means to give consent to the others determining the outcome without regard
to her interests, which she herself judged not worthy enough to give votes. Every decision
relies on the entire functional participation.

•

A large number of polls about the distribution of competences between small entities will
increase the voting-power of everybody who is not interested in the region. Will this not
give her in European-wide polls relatively too much weight?

No. The large number of polls with small entities involved will be made by a relatively small
amount of votes, corresponding to the small impact on the lives of people.
It has to be considered that the representation of first level is in tendency closer to the interests
of the people, so that they do not risk too much even if they lose. This is exactly the advantage
of the market-system: The importance of questions does not have to be evaluated, the voting
does it itself.

•

A nation with an excellently working civil society and engaged citizenry will be able to
participate more effectively in the referendums and have a relative overweight over
disinterested, uninformed and cynic people. Does this not diminish the legitimacy of the
procedure?

There is a parallel to the consumer-market. Some people seem to spend their money more
effectively than others, by being informed of market prices or postponing the fulfilment of
desires for example. The freedom of not having to compare prices or to postpone fulfilment
has its price. The difference to the lower price is not wasted though. It finds its equivalence
not in the performance, but in the circumstances of the deal. Why should everybody prefer to
run around and look for the good deal to be able to afford two shirts before buying one, but
not having to bother about anything?

The differences in character are far more decisive for effective referendum participation than
national preconditions.

•

The model wants to leave irrational presuppositions, but it relies most obviously on the
functioning of new technical devices in the field of communication, especially the Internet.
Sabotage, manipulation and technical problems

will be a major catastrophe if the

organisation of the state relies on them.

Manipulation is always possible and not inherent to the use of a new technique. Yet there are
methods to cope with it, for example to make along with every official decision via Internet a
small-scale vote by traditional means as control-group to detect manipulation. Internet does
not depend anymore on overcharged cables; satellite access is reality already. Of course it has
to be admitted that accidents always happen, but I think that the impact on the organisation of
the state would not be so devastating. The closest to every-day life is administration and
government, then the level of concrete decisions and only in the third place the level of
competences. In this ranking a temporary loss of power is dangerous. For plundering a few
hours may be enough, for a coup d’état usually several days

and to destabilise the system on

the third level will surely take several months.
Actually we live in the scenario of destabilised organisation of the state described by the
question: Competences have not been very flexible for a long time now and this makes the
system tilt, even if different activities constantly try to fix (EU, EFTA, decentralisation,
privatisation etc.). The factors which change our system’s assumptions get more and more
impact (e.g. better communication leads to faster shifting communities and higher
differentiation) and the cycle of necessary revision is bound to become shorter.
The model’s mechanics of institutionalised automatic revision works like a valve: The system
can do without for a while, but not permanently.

•

Why are huge alterations necessary to cure the democratic deficit? Is this not
overreacting?

Both the European system and the modern world system are in crisis.
According to Prigogine

a system has reached a bifurcation, i.e. the zenith between a period

of stability and consolidation and a period of tension and fluctuation with major consequences
for the system as a whole, when three subsequently emerging factors can be found:
Organisational overcharge, system rigidity and system disintegration. With reason Lindström
recognises them in the driving-force behind recent development of the EU and its current
characteristics.

Increasing complexity overcharges the decision-making institutions, nation-

states bring rigidity

and the structure of west-European decision-making, based on national

territory, disintegrates. The system’s lifetime is close to the end, but the creation of a
qualitative new organisation takes its starting-point by taking over existing elements.
According to Wallerstein, the modern world system shows the same symptoms and has as
well entered a period of systemic crisis, which will stretch between 1967, and the middle or
the end of the twenty-first century. He refers to breaking points of a Kondratieff long wave
(1945-1995), U.S. hegemony in the world system (1873-2025) and the Modern world system

Predictions run that the Internet will sooner or later be overcharged and break down.

Compare: Jelzin’s kidnapping.

I. Prigogine & I. Stengers “Order out of chaos. Man’s new dialogue with Nature”.

Lindström op. cit. p. 28-30.

Through their hierarchic organizational structure and their territorial foundation.

(1450-2100) as such. This opens a wide terrain of social experimentation and real historical
choices.

When the whole system is in danger, to add an already known element in a different relation
to improve the interplay of the system’s elements is not too daring an experiment then.

•

If voter 1 prefers alternative A to B and B to C, voter 2 prefers B to C and C to A, and
voter 3 prefers C to A and A to B, there is a majority for A over B, for B over C, and a
majority for C over A.

A representative system can avoid this paradox, direct democracy

cannot.

There is controversy over the implications of the voting cycle. In the model weighing and
voting-tactics solve this problem.
It is improbable that voter 1 prefers alternative A to B exactly to the same extent as voter 2
hates A and loves B. Even if this should be the case, it is highly improbable that voter 3
cannot end the quarrel because she is entirely without opinion on alternative A whilst being
very passionate in the question as such. She would give just one of her 40 votes against B,
which has the only vice to be not alternative C, but she will not be as engaged as voter 1 and
therefore not use all her 40 votes. She knows that there will come other decisions where she
will be more concerned, for example when the question is: C or B, her objects of love and
hatred. And having spent only 1 vote in the last poll, she can easily win that one against one
enemy and one low interested.
In reality the number of voters will be much higher and the ranking therefore much clearer.

•

People may feel concerned, but when they have not also an own experience of the
problem, they cannot see the decision in its context and decide without the necessary
connection.

This critique can be developed on the emotional and the rational level.

1.On the emotional level can be argued: How can the city-dweller in her artificial
environment and with her neurotical idea of applying human values to animals ever judge a
Norwegian fisher, who is fighting every day against nature’s forces, who is not killing with
lust but with respect for the creation, and who is obeying to the inner law of nature by taking
what is needed to survive. In short: The whole ideological framework is different.
The votes are of the same value, but they are lying, because they do not mirror the steep gap
between the positions. The weighing indicates the importance of one matter in relation to the
importance of other matters for the same person, but not in relation to other persons. Attitudes
have no price in money or vote. The loser will not be able to accept the decision, because it
cannot be integrated in her view of life.
The same problem is already present in the political process. It will be alleviated by focussing
on general bundles of decisions, but aggravated by the extension of the system over societies
with greater difference. The problem by the different ideological backgrounds might exceed
the remedy coming through greater abstraction.

How can ideals be transported without the receiver to feel compelled, breaking up the
communication and starting a “propaganda and hostilities”-method in defence of the own
ideology? In diplomacy this problem appears regularly. The applied tactics are called

De Sousa Santos op. cit. p. 258-259.

The example is the voting cycle of Condorcet (1785), discussed by Budge op. cit. p.79-80.

The consequence could be that rational communication is initially impossible. Communication theory demands some kind of

common treasure to understand the transmission. Such a community can be assumed between two persons. Even when the
most different people meet, some kind of communication is always possible.

“Ostpolitik” or “critical dialogue” and consist of slow conditioning of the receiver. The
market in the model can do exactly that.
Ideologies form communities. Different communities have different interests and focus on
different fields of interest. In the example of the whale question the traditional fishers’ society
will not simply have a different opinion; this opinion will also be of incomparably higher
concern than in a technologically advanced society.

Members of the “modern” society (or

community) attach in their turn higher importance to other questions, for example
cryptography laws for modern media. The clash of ideologies will not occur.
When the interest in far away parts develops by and by, the historical community has time to
perceive itself confronted with the fact to become more and more minoritarian. It can react
and try to compromise to avoid losing control. Then it is corrupted into the direction of the
building majority. Even when the community shares emotional experiences, it is not limited to
emotional actions. It can of course try to defend an irrational presupposition with rationality
and “Realpolitik”. And it works, too, because in a critical dialogue the model every actor is
sender and receiver.
Every actor starts to argument from the silent assumption that the own ideology is better. The
caricature of the whale case above shows the preferences of the person who puts the argument
forward. The fisher actually kills the whales and this act has meaning for his whole way of
living, yet this is no reason why this person is more apt to build a correct evaluation about the
deed. It can be exactly the other way round: Having become used to it, there is not the
necessary distance to judge. No ideology has an a priori higher worth. If this is true, then
democracy has not and never had an alternative to adopting a mix of ideologies. The market
of ideologies can achieve that. Only then the Norwegians get really a chance to explain why
they kill whales when almost the whole world has stopped in doing so. Nowadays they have
only the possibility to say no to a closer connection with those who have a different ideology
in one slice of life. Yet exactly this contact with the opinion of the other can lead to a self-
critical reflection on the own values. This contact has to be a contact of the whole population,
not just of the leaders. Otherwise people may find themselves caged in a union they perceive
as threatening their values and ideologies, like many of the EU citizens feel today (cf. Ch. 1).

2. On the rational level the critique reads: Assume that some foreign agency, for selfish
reasons or because of fanaticism, manipulates Italians to massively vote for a transfer of
competences concerning the Irish conflict. Italians lack the local everyday knowledge that is a
necessary condition for a rational decision. In other words: Can own experience be substituted
by information and will it not be more prone to manipulation when the information provided
can in no single case be checked against a first hand view of the reality?
The problem is greater here: If experience provides any information at all, it is easily acquired
information which makes the involved person by nature a better judge not only in the matter
but also on the other information provided about the matter.
Expert knowledge in a certain kind of questions only exists if there is a category to describe
several concrete cases as having a connection. This knitting-together of concrete cases to
assign a certain sense to them is essential, because the involved persons in the events, the
experts of own experience, are then easily found. The traditional category is the geographical
space, but with more reason it should be the social space. To come back to the example: If the
problem is labelled “Conflict of Northern Ireland”, any Irishman is automatically an expert of
own experience, even if not familiar with the specific problematic. If the problem is labelled
“Conflict of not assimilated immigrants considered as occupational power, with not tolerated

The technologically advanced society has of course members in Norway, too. Society is here not meant to be restricted to a

nation.

religious difference and deep historical roots”, a Bosnian is the better expert. People should
categorise themselves, because they know best where they can be considered as experts.
Even then it might be questioned if this has to lead to the exclusion of the less good judges.
But the main argument is that it is simply impossible to predefine the persons who have the
high valued first-hand experience. It can be considered to take the group of people living in a
certain historically arbitrarily cut territory, for instance the city-borders of Belfast or Great-
Britain and Ireland. But just as well could be considered to take the group of scientists of
ethnic conflict or the group of people who have experienced a nationalistic civil war related to
religion, for example the Bosnians. There may be a better chance to get a well-informed
average in these groups, but the distribution of votes in democracy is not connected to the
duty to inform before voting. Today’s “expertocracy”

where the experts have special

“territorial knowledge” is less and less justified with the decline of territorial communities

A territorial predefinition of those who are “closer” to the problem is not possible. The
exclusion of experts is a greater loss than the inclusion of non-experts.

Points of critique on direct democracy as such:

I am following the useful systematisation in groups of arguments against direct democracy by
Ian Budge

. Budge defeats the critique, but he hardly gives convincing advantages of direct

democracy either. The proposed model combines the virtues of representative and direct
democracy and has therefore certain advantages. It should be kept in mind that it cannot
substitute democratic procedures of first level. The scheme on the next page shows the
conventional critics in the “Against”-column.

The philosophers in Plato’s state.

Cf. Chapter 3.

Ian Budge “The new challenge of direct democracy”, Chapter 3.

Against direct democracy

For the model

1 Elections under representative democracy

already allow citizens to choose between
alternative governments and programmes.

But they cannot choose between alternative
distributions of competences.

It is not possible to have direct debate and
voting in modern mass democracies, and
even less on an all-European level.

The percentage of participants in every
single debate and voting is considerably
reduced in comparison to both direct and
representative democracy by introducing
scarcity on the voting-power.

Without intermediary institutions no
coherent policies will emerge. Direct
democracy undermines intermediary
institutions.

Intermediary institutions will be necessary.
They can be created and adapted fastest by
the new media. Parties and governments
could play the same role as in representative
democracies, with other bodies joining them
and breaking up their monopoly of bundling
political interest.

Ordinary citizens do not have the education,
interest, time, expertise and other qualities
required to make good political decisions.

Only experts in their own cause will invest
their votes. They make no concrete decision
like in referendums, but judge on the quality
of past decision-making, similar to in
current elections. People do not have to
understand the political game, only their
specific role.

The best decisions derive from a balance
between popular participation and expert
judgement. This is representative democracy
where citizens can indicate the general
direction policy should take but leave it to
professional to be carried out.

Popular experts indicate the general
direction representative democracy should
take. The categories are all combined.

All collective decision-making can be
shown mathematically to lead to arbitrary
decisions in a high proportion of cases.

The problem is generic to voting procedures
as such. The hierarchy of voting procedures
and the introduced control of rationality can
reduce their effect though.

Those who vote against a particular decision
cannot be said to give their consent to it,
particularly if the same group is always in
the minority.

Permanent minorities get the chance to
submit the representation of their interest to
a special institution if their interest to do so
is high enough. Minorities in Parliaments
stay for a long time the same but change
here with the subject.

Citizen participation can influence the state,
but non-accountable bodies like
corporations and world markets have more
influence on citizens.

The model tries to get the “state”, i.e. the
decision-level to the necessary size to
influence non-accountable bodies.

Some of the critiques simply miss the point. This is not too surprising if we remember that the
definition of direct democracy is “direct influence of the governed on the creation of the will
of the state”, in opposition to representational democracy as indirect or mediated influence

It seems that the model has some new features, which require an adaptation of the critique.
One of those new features of the new combination of old mechanisms is the following:
Butler/Ranney

admit that decisions by representatives involve weighing, referendums

usually not. But the proposed market of unmediated interests can weigh even better than
representatives. It can for example react faster to changes in preference.

Bobbio

points out that there is not a qualitative leap between representative and direct

democracy, but a continuum. As an example for a halfway organisational setting he mentions
representation by mandate. The model is somewhere next to it, because the representative
bodies are subjected to referendums. The representation in a sector ends with the deprivation
of the mandate to decide that certain type of questions.
The critique of direct democracy is ill focussed when applied to the model, because the
referendum element has no preponderance. It only tilts the system back to stability when
accountability lacks (Cf. Chapter 1). To delve deeper into this critique is not profitable.

Friedrich Koja “Allgemeine Staatslehre”, p. 82, 83.

David Butler and Austin Ranney (Ed.), “Referendums around the World”, p. 17-18.

Changes in preference are more and more frequent. Status and class, ideology and life-style are increasingly unstable with

physical and psychological immigration and migration.

Norberto Bobbio “The future of democracy”, pp. 52-53. Original title: “Il futuro della democrazia” 1984.

The advantages of this model:

Members of separatist movements get an equal possibility to participate in the political

decisions. More than under the yoke of a nation-state that is not theirs. Less than if they
had been conceded an autonomous region inside a nation-state, where they are better off
than citizens of non-autonomous territories are. The centre-periphery problem could be
tackled.

The territorial principle would be softer, but conserved on the higher level of the EU. The

people would reacquire contact with the decisions that are taken in their name, also in
their name of “consumers”. The Shell-campaign of Greenpeace (especially in Germany)
shows that this is exactly what is needed today: Influence where your interests are. The
tiny adaptation of German every-day life inclined a powerful international oil-company.
No direct influence (mediator was the market, catalysator Greenpeace) or violence was
involved, the activation of the interested parties sufficed. The event gave the Germans a
feeling of “after all we the People (i.e. consumers) have the power”. And the outcome is
rational, too. The oil-firms add the recycling-cost of the oil-platform to the price of their
products and have no damage, and they can no longer pretend that they are driven by the
disinterested capital, that of the investors or that of the clients.

Territory is in today’s interrelated world no more the unfailing criteria for to determine
where your interests are. The Germans are interested in North-Sea oil-rigs, the British in
Irish tax-laws (their companies flee over the Irish Sea), those in their turn are interested in
Luxembourg’s “occult banking“ and so on. There are no new criteria and therefore the
“Kompetenzenkompetenz”, the power to assign the competency for a political question,
has to be given to the interested. As long as their interests remain on a national scale the
nation continues to be important. Beyond, it is a hindrance.

It would be clear who is responsible for what. This is one of the major points of critique

towards the current relation between the EU and the Member-States. Frequently the
member states make believe they account for every success, whilst any failure will be
blamed to the EU. Therefore periods of economic difficulty coincide with periods of EU
downturn.

Clear responsibilities are a vital factor for democratic accountability.

The competency of the nations can continue to fade away in the degree the decisions have

to be levelled up, down, or to new centres without breeding paradoxes with the concept of
sovereignty.

Decisions could be (hopefully) made more rational and meet the challenge of
globalization. Rationality means intersubjectivity, the sum of subjectivities. The
assumption is that an individual will invest only that amount of voting resources that
corresponds to the estimated concern of the individual with the outcome. At the same time
the allocation of competency would decide which entity gets the taxes. Many recent
popular decisions have been considered as irrational. Denmark’s “No“ to join the EU lead
to another vote few years later, because it deemed the political class that this blank answer
is a catastrophe for the country. The Swedish Nation decided to close down all Swedish
nuclear power plants. Here politicians try to play on time to avoid the enormously
expensive consequences. Independently if these cases are instances for irrational popular
decisions it can be stated that the premises for these decisions were false. It is not

George Ross “Jaques Delors and European Integration”, p. 233. A related explication can be found in Axtmann op. cit.: The

EU was from the beginning conceived as legitimate in so far that it can assure economical progress through a plus-sum game.

sufficient to formulate a question in a way that both options appear in the question to
make it a well-balanced question. I argue that popular decisions can only by accident be
rational, because they lack the most important virtue in politics: Weighing, which means a
sense for the feasible. Most alternatives have a chocolate-side, but the real question is at
what price it shall be paid. This is no Yes-No question and it seems that popular decision
must be disqualified as instrument to find rational solutions. The instrument to establish a
consistent pattern of preferences and extract more than 1-bit-information from polls is the
Market. The people weigh when participating in the voting-market and this information
should be used. Popular decisions are not irrational because the people are stupid. The
stupid mechanism distorts rational behavior.

It is possible to extend the model so that it gives influence on decisions of non-political
entities.

A solution of the “prisoners’-dilemma“ in the globalisation context could be resolved by
cooperation of the interested. Nowadays national identity determines the scope of
rationality.

Other interests could be communicated and lead to optimised solutions.

This model provides identities for supra- and sub-national communities. They can
cooperate instead of concurring and responsibilities would be clearer.

The national sentiments can continue to exist (as they will most probably anyway), but
they lose their legitimising function for the political system. To be a national patriot will
not be connected with being a “good citizen”.

10.

The model would give the European Parliament the necessary dogmatic argument to
demand real power of decision.

11.

Young voters could be taken slowly into the system: They could start with ten votes when
they are sixteen, get twenty per vote with seventeen and forty with eighteen. This would
increase their interest in political questions and show them that they become more and
more responsible for themselves.

12.

The pattern of the model follows the current modern tendencies to trust the market and
processualize Justice (Rawls, Dworkin...).

13.

The first level of democratic decisions became overcharged. The system has become too
complex to rule with direct democracy, and is becoming now too complex for a political
parliament. Today’s parliaments are decision-machines, in the best case filled with highly
differentiated and skilled management-experts for administration-technique. It is all about
“How much to get which effect?” and no more about: “After my conception of life we
should do this”. The level of Parliaments was once abstract enough to be the level of
political steering. Today it exercises mainly higher administrative tasks. Under these
circumstances many different actors participate in policy-making, whilst none of them can
really steer. The actors are driven by the dynamics of the system, i.e. the other actors and
technical constraints such as the economical system. To make political decisions possible

Therborn (1995) p. 232. Cf. below under the heading “democracy”.

Penal law uses the same method for oung offenders between non applicability of the penal laws and full applicability. The risk

is that the same method could be used to exclude other groups, at least partially.

again the second level of the “Kompetenzenkompetenz” has to be reintroduced. This level
has to be under control of the people to be democratic.

14.

Communication in civil society is enhanced, because who does not become active loses
influence. If the Norwegians do not vote for whale fishing to be regionally decided, they
will lose their case against the ecologist league of central Europe, which does care. The
next time the concerned parties will participate more attentively in the pre-electoral
discussion and promote their side of the story.

15.

Integration becomes flexible. No nation knew what development the EU would take after
their joining, and leaving has so far never been a realistic option. In Spain and Sweden for
example there were huge campaigns before the vote to join the EU, and once this was
settled huge percentages pronounced themselves as EU enemies. One of the reasons is,
that the people did not know what consequences a membership has for their every-day life
and to what extent they alienate the power to decide on future questions. When they
discover, they cannot back and feel trapped. If democracy is defined as being able to
change government peacefully

, then this proceeding is not democratic. If it is not

democratic, than it can neither give any legitimisation, even if it is accepted in that
moment. A contract where one side can not oversee the consequences and cedes the power
to make future contracts would not persist before any court.

Such major changes should be made one by one, not once for always, and they should be
reversible. The proposed system is flexible, open to changes in either the direction of
integration or disintegration. The models of integration for the EU discussed in Chapter 1
all conceive a one-way process. The capacity to allows for changing government (in the
large sense) unviolently (=democracy). Co-ordinated disintegration is one of the most
original features of the model.

16.

It will provide an antidote to the democratic deficit. The model introduces concurrence
between the EU, mainly its administrational power, and any other decisional body. It is in
the people’s hand to decide on the importance of democratic legitimisation, efficiency,
etc. In some sensitive areas they might prefer a parliament to have the competency to
decide. In technical issues they might not mind a technocracy to do it to economise on
resources.

17.

All the points together would give new legitimacy to the system.

At this point I would like to recall the conclusions of the first chapter. Most of the points are
so obviously realised through the presented blueprint and its explanation in this chapter that I
refrain from a repeated discussion. The interested reader will go back to chapter one to
subsume the model under the points of critique on the EU before entering the third chapter.

Karl Popper, op. cit.

Very similar problems appear in the transition to democracy and market-economy, for example of the ex-communist states.

The all-or-nothing method destroys more than necessary. I guess the principle underlying the presented model could be used to
give an answer to these problems, but here is no place to develop this idea.

Chapter 3:

General evaluation of impact: What does the model mean?

Competency

The concept of competency will change. Traditionally competence has its source in the
nation-state and can then go up to the supranational-international sphere or down to the local,
regional-federated sphere. The legitimisation for the national source of competency is a
virtual social contract.
Here competency has its source in the people and the social contracts they sign up.
Competency may continue to have territorial connections, but it will not have an a priori
territorial source. The national-territorial bond is shifted from the set of premises to the
results. Competency is founded originally, through an actual contract in the form of a poll. It
is not founded once for all matters and generations, but part for part and constantly open to
revision.
In leaving aside the premise of the nation as the source of competency, the concept of
competency is secularised from a metaphysical element. To the extent that nations represent
real communities and not mythical, imagined communities, they will receive competency
through polls.

Changing one concept, for instance that of competency, and keeping the others in place, is not
possible. This concept relies on that of sovereignty and territoriality. Sovereignty is knitted to
territoriality as well so that a change of the first will again have an impact on the second. Both
are essential to the definition of a society, which in its turn is strongly interrelated with every
individual’s self-concept and so on.
Not only the concepts of the theoretical level are hopelessly intertwined, but they are also
connected to reality. If we change concepts, reality will change.

People conceive themselves

as members of a national community. This has influence on their behaviour and becomes
social reality. To change one concept means to change them all.

It is impossible to foresee

the final result, which is one aspect of what has been called the modern condition.
Formally the model is pointing to competency, but in its working it will surely have indirect
impact on concrete political decisions. In how far the instrument of direct democracy is used
only as corrective and in how far it becomes the leading political sphere, degrading the sphere
of policy-implementation to a modern form of administration, depends on other factors. Both
in Germany and France the Head of Government is not directly elected by the people.
Nevertheless German elections to the national Parliament are factually an election on the
person of the Chancellor, whilst the person of the Prime Minister is in France mostly the
result of negotiations within the political class. Similarly the range of how the model will
actually work in practice can be great.
The allocation of competences is usually the work of a constitutional assembly and the results
are submitted to the people in form of a referendum to achieve legitimacy. It can be concluded
that traditional political theory attaches much importance to the idea that the people should
decide on the organisation of the political system. The best way to reach this goal is not one
yes-no referendum on all constitutional provisions for the lifetime of the constitution, but

Only minor adjustments by a qualified majority and special legislative process are tolerated.

In changing the concept, we both try to impose our ideals on reality and we adapt to reality. Our ideals and reality both

develop and are never in congruency, so that the process is endless.

The question if the proposed change is paradigmatic or subparadigmatic is difficult to answer. On one hand side the principle

of territoriality loses only its character of principle, territoriality as such will continue to play an important role in community
building. This may already be due to the animal ancestry of mankind. On the other hand side it is not enough with this one
transformation as I have tried to show.

differentiated and reversible decisions. Referendums on constitutions resemble political
ultimatums, because the consequences of a rejection are worse than the adoption of an
imperfect charter

. The adopted constitution does not completely correspond to the real will

of the people.

Other applications

The model can be used generally for situations where a greater number of individuals have an
interest to steer a greater number of decisions that require expert knowledge or special skills.

It has been criticised that workers have no influence on the decision-making of the firm

. The

obvious counter-argument is that insider-information loses its value when it is spread amongst
the workers. A market-analysis and strategy can become useless when the concurrence knows
about it. Without that knowledge a decision will be suboptimal. But the worker can judge on
the past and distribute the competency to decide the different questions that steer the company
according to this experience. The worker takes the place of the stockholder and replaces the
interest of the capital with the workers interest.
Hirst

points out that the modern threat for the freedom of individuals does not came from

the state and the classical public sphere, but from large hierarchical quasi-public institutions
possessed of powers comparable to those of the state.

Hirst quotes Norberto Bobbio who

argued that the main issue for modern democracy was not just ‘who votes’ but where can they
vote. Bobbio wants to say that democratic progress is nowadays measured in the number of
contexts where the right to vote is exercised.

Hirst promotes democracy for the complex and

rapidly changing divisions of labour and institutional patterns. Democracy must be as flexible
as the patterns. The easiest way to keep up with societies’ speed is to implement the same
motor, an interaction of independent rational actors, which can be viewed as a market.
Hirst doubts that the democratic deficit in public decision-making is an adequate response to
the crisis of modern democracy, because the institutions that implement or administer those
decisions are structurally limited

100

. Therefore “We require a constitution for society as much

as we do for the state.”, but its very idea “smacks of totalitarianism”

101

An alternative to the radical demand to “democratise” private institutions could be made
through public decision on a second level

102

, deciding only that a service is too powerful to go

without control of the interested parties. This would give the people the protection of their
freedom from the non-governmental super-powers and nevertheless leave the autonomy to
choose an appropriate means to the “capital”. The private sphere is not annihilated, only the
framework is defined differently.

103

The entrepreneurs or managers in representation of the stockholders should be capable of
deciding on the “how”, because they respond to the risk involved. On the side of the capital
stand also individuals whose freedom, expressed through the free use of economical means, is
in danger.

This was the case with the after WW II German Constitution (Grundgesetz), which contained certain provisions on federalism,

which were unacceptable in the eyes of the Bavarian Parliament. It only dared to vote against, because it knew that the
Grundgesetz would be adopted anyway.

Robin Archer ”Towards Economic Democracy in Britain” in ”Reinventing Democracy”, p. 85-96.

Paul Q. Hirst ”Democracy and Civil society in ”Reinventing Democracy”, p. 97-116.

Cf. the example below: The capitalist employer can impose rules of the labor contract onto the employees.

Norberto Bobbio “The future of democracy”, p 56. Original title: “Il futuro della democrazia”. Bobbio thinks about democracy

spreading from the strictly political sphere to the social sphere.

100

Paul Q. Hirst ”Democracy and Civil society in ”Reinventing Democracy”, p. 106-107.

101

Hirst op. cit. p. 101-102.

102

A market on the first level, the level of consumers, is blocked in steering, because alternatives lack and the cost of organizing

widespread consumers is too high.

103

In some countries employee representatives are obligatory. This provision is hardly contested anymore with the argument

that this is an infringement of the autonomy of the entrepreneur.

To apply the model to this example, at least two preconditions would have to be fulfilled.
First there would have to be a stable political will to give the workers a part in the decision-
making process of private firms.
Secondly, that the market can do that. The use of the economical theory in the political
context relies on the assumption that the market is not only efficient, but respects also the
autonomy of every actor and represents therefore at the same political pareto-optimality. All
deals are made by free consent, so nobody is forced. Criticism to this assumption considers
specific situations of initial disadvantage where deals are accepted because they are the least
bad alternative. The outcome does then not represent a politically fair solution.
Nonetheless I can imagine that the proposed model has better potential to be extended to the
discussed area than other propositions. There are many fields where democracy was never
considered; now there is an opportunity to think anew.

Consensus, political community

Consensus has two meanings. One refers to the process of finding decisions within political
systems. But this presupposes a more basic consensus on the system and the process by which
the particular decision shall be worked out. Obviously, the basic consensus is not generated
by the political system but by the surrounding society. Thus the state cannot generate the
basic consensus, even if its institutions were not secularised and relatively value-free like in
modern democracies. When a political system lacks backing from society it constantly has to
strain for an official consensus and its activities are seriously hampered. Such a state is bound
to implode like the communist states.
Recent developments like immigration, globalisation and communicational revolution are
feared to make this consensus more and more difficult. Remedy can be to strengthen meaning
and impact of the consensus by lowering the threshold until it can become effective in the
political system, by direct democracy. Remedy can be to enhance the creation of a
prepolitical

104

intermediary structure by installing mediated direct democracy. Remedy can be

also to farewell the silent assumption that consensus is an over-all homogeneity in life-style,
for example the general patterns like “conservative” or “socialist”, but to admit that small-
scale consensus suffices also for the basic consensus.
The last point needs explanation, because it seems that the splinters of consensus found by the
proposed referendums rely in their turn on a more basic consensus. I think that this is partially
true. Nevertheless the borderline to the basic consensus is pushed backwards. Intercultural
consensus on the ideal that the concerned persons should have the power to decide in their
own sphere (democracy) is most probably easier to reach than consensus on any substantial
provision.
I refer here to the argument about the impossibility to predefine the experts

105

. The claim to

autonomy, to “decide ourselves what concerns us”, relies in public matters always on a
predefinition of who the in-group. The category becomes clear when the claim to autonomy is
applied to the concrete situation. The exclamations ”We the Irish want to decide ourselves on
Northern Ireland” or “We the inhabitants of Ulster want to decide ourselves” or “We the
People of the UK want to decide ourselves on our territory in Northern Ireland” induce much
less acclamation than the claim to autonomy above. These exclamations exclude each other,
whilst they all seem to have a convincing part.

104

In the sense of ”not yet belonging to the political system”; cf. Karl Popper op. cit. p. 72 and the lines on different ideologies on

page 25-26. When people come together to convene on their political system (state of nature), they have already certain ideas
of the process by which they will arrive at this convention. Procedural Justice about initial constraints and freedoms (Alexy,
Rawls) are in this sense prepolitical.

105

Pages 26-27.

People are often ethnocentric in their claims to keep aliens out of the decisions, but there is no
reason why a constitution should give way. The result of ethnocentric groups with mutual
claims to have exclusive competency in a certain matter is always extreme: One group can, by
whatever means, exclude the other. Peace-keeping measures work with “round-tables” and try
to balance the result. The model does exactly this weighing from the start.
India is an example of how the model can even work in a system with a given metaphysical
hierarchy. The Indian society is extremely high differentiated in castes, but inside them the
underprivileged have some kind of autonomous space to rule their affairs. Every society
knows equal ranks. No society can work with differentiation down to the very individual,
because it would be then by definition a tribe or family. The term of an abstract society would
misfit.
Within the castes, or social categories, people confront each other as equal. Admittedly the
rigid general organisation can set insurmountable obstacles for a larger exercise of the
freedom to organise oneself, but inside those spaces the model could be adopted and be
conform to the system.
In abstraction the point is that equality is inherent to communication, and communication is
necessary precondition for all systems. The model is in my view less ethnocentristic than for
example substantial human rights or the majority rule and more likely to become accepted
consensus.

How community is building

Historically, it could be assumed that people living in the same environment have always the
same interests. Natural forces were the biggest problems: A valley endangered by avalanches
or a plain endangered by floods and water-scarcity has to organise to survive. The interests of
modern man are of different nature.
This simple statement is often perceived as a catastrophe under the heading of globalisation.
But where is the catastrophe when scientists share their knowledge with other scientists on the
world, but not with their neighbour, when Jews all over the world have a normative system in
common that they do not find as state religion, and when all kind of communities build all
over the world, united by communication and some kind of institutions in the large sense?
This means only that the assumption that people who live in a common geographical territory
have common interest does not always coincide with reality. It has to be adapted.
The problem is that we cannot define in advance where the concerned people are and which
the community is. This can only be decided by themselves, from a subjective insider-
perspective. To the extent that modern communication technology creates the problem, it
provides also the answer. Popular initiative indicates the interested parties. A person who
takes part in the specific dialogue of the community is obviously a member. When certain
Germans bother enough about North Sea oil-rigging that they are ready to change their daily
habits, then this means that their common interest is concerned. They feel members of an
ecological community. They do not know each other; their community is imagined like the
nation-state’s is.
The conceptual assumptions to be reconsidered are those which work in absolute and
predefined terms, i.e. sovereignty, predefined competency in predefined matters and, of
course, a predefined space and time.
I want to show that territory is not the most meaningful criteria, and sometimes not
meaningful at all. People can live on the same territory and not share the same social space;
and they can live on distant territories or even constantly change territories, and still share the
same social space through communication. The best examples for the latter are the TNC’s, the
transnational companies. They relocate their production and their markets, search for their

human resources and their suppliers according to the opportunities. Success justifies the
method: They produce more than 1/3 of the world’s industrial output.

106

To understand them,

territory is an obstacle.

107

When relations spread more and more often over the static borders in which a common
regulation is made, then the regulation will not only be formally unadapted or inefficient, it
will even violate the substantial principle of Justice. Justice means to treat like cases alike.
When relations spread over several zones of different regulation the treatment will be
different without sufficiently justifying reason. Some members of the same community will
be treated differently because they live in a certain territory or because their parents did so.
And when the same regulation is imposed on different communities, then different cases are
treated alike.
If a European can buy or sell in Copenhagen freely a piece of Marihuana which would
deserve the highest penalty of drug regulation in Munich and therefore send him for 5 years in
prison, then the different treatment does not find rectification in a history of the attitude
towards drugs. The different treatment is due to the historical drawing of borders between
nation-states and has nothing to do with the act. It is not principally inconceivable to pursue
different policies in contiguous places, but there should be a reason or at least some kind of
reflected argumentation about that

108

. A good reason would be a popular decision.

109

Democracy

One of the functions of representational democracy is that the people give the general
direction of politics and expert politicians install this politics through a high number of
complex decisions. The model tries to maintain this task sharing.
According to Thucydides, Pericles said: Even if only a few of us are capable of devising a
policy or putting it into practice, all of us are capable of judging on it. If Pericles would have
not lived in a city-state with one level sufficient for all decisions, he would have said: Even if
only a few of us are capable of defining what competences should be split from others or
distributing them to the different centers, all of us are capable of judging it.
The practical knowledge of steering the boat of state requires talent, experience and expertise,
but public matters effect all as a real situation they have to live in. People are automatically,
only by living in the situation, experienced experts. The key is that the democratic decision is
more remote to the level of concrete decisions and closer to the life-world of the citizens.

If the historical definition of competency and distribution works out well, nothing will
change. The system receives approval by non-initiative. When competences are split up too
much or along unclear lines so that different entities constantly interfere and waste energy,
then the people will perceive that. Some will propose alternatives and by a trial and error
process a better solution will be adopted. Without such a direct channel to make a new try, it

106

De Sousa Santos p.254.

107

In 1996 the citizens of Munich had to vote for or against a project of completing a circumfering highway. The citizens of

Munich have mostly good access to public transport and have little interest in using the highly frequented ring road. The
concerned are the people living outside of the city s borders. Some have to come to Munich every day to work and learn, others
come once a week to shop and for leisure, and a great part of the holiday traffic across the Alps and to east Europe depends on
the road as well. Their interest was not weighed with the interest of the citizens of Munich to spend their communal taxes in
another way and to have a quiet city.

108

Today you do not even have to point to a law to avoid giving reasons, because law is so closely linked to the sovereign state

that the question "Who should make a law?" seems to make no sense because there is only one entity which has the
competency to do so.

109

States can not very well criticize that, even if they are not democratic states, because what a state implicates when he is

saying that he represents his people is, that the people want the state to represent them in this matter. If this is true the state's
competency will be confirmed. Society provides different sizes of group identification (onion model) so why should the
referendums come always to the same result then?

110

Karl Popper op. cit. p. 72.

takes more time to edit errors. Foremost the trial and error method is better adapted to
constantly changing conditions.

111

The same applies when competences are inefficiently distributed to the different levels. When
no European country wants weapons to be exported to a terrorist state, but all know that if
they do not, their neighbour will make the deal, then the state level is most probably too small
to produce the desired effect. People can transplant the regulation on a higher level.
This does not have to be the EU; it could be the ECHR, the CSCE or the NATO as well. That
the NATO contains countries like Canada and the USA, who have not yet adopted the
proposed model, is no problem. There the consent would be mediated in the traditional way
by their governments.
According to Troper

112

, the constitution has to be interpreted by those who act in virtue of it.

Before, it has no meaning. The interpretation cannot be guided by the constitution itself,
because it is in that occasion object of interpretation. The constitution is therefore recreated by
interpretation and cannot bind its creators. The constitution is not a set of norms but the
existing relations between the legal actors who jointly define their competences. The actors’
only constraint is therefore the power of the other actors.
The model would for the first time establish a kind of control of the “almighty” actors who
attribute competences to themselves. They cannot be hindered from further recreating the
constitution, but they would have to adapt more to the people’s will, because if they impinge
on others, the sanction might be that they lose more than what they hoped to acquire. From
the start the actors would restrict themselves to what they perceive as the will of the people.
Democracy would get an additional instrument to prevent tyranny, and this instrument would
work most of the time without having to use it, by simple threat.

Legitimacy

When do we perceive influence as legitimate? What processes or institutions confer
legitimacy?

1.

Wessels and Diedrichs

113

distinguish between two forms of legitimacy. On the one hand

objective legitimacy or legitimacy as an attribute according to the position of political science.
On the other hand subjective legitimacy, legitimacy as orientation or as acceptance by the
citizens.
The authors wish to redefine the position of political theory towards legitimacy, at least as far
as the EU is concerned. Their argument is that concepts from national experiences cannot be
transferred

114

. In conclusion they think that even a system with a lack of transparency,

increasing complexity and growing differentiation can be acceptable.
•

Legitimacy as an emotion (acceptance, subjective, orientation): Nietzsche's charismatic

leadership. This possibility always existed and will always exist, but it is metaphysic and
therefore not likely to be ever accepted by all. It may be a workable concept for groups
where you can always opt out; otherwise charismatic leadership cannot produce
legitimacy for all members.

•

Objective (attributed) Legitimacy: Herder thinks that the nation-state has an inherent value

given by history. The arguments that can be found for that are not strong enough to escape
deconstruction through enlightenment philosophy. I mention only the fact that history is in
its turn not value-free collecting of evidence, but reconstruction of sense in relation to the

111

Cf. below “The crisis of politics”: The political system is less and less capable of imposing a new try.

112

Michel Troper “Pour une théorie juridique de l’Etat”, p. 293-315, 314.

113 Wessels/Diedrichs “A New Kind of Legitimacy for a New Kind of Parliament - The Evolution of the European Parliament”

http://eiop.or.at/eiop/texte/1997-006a.htm;

114

They do not motivate this opinion.

present situation. History is not empirical enough, because its findings change by time.
There are no objective criteria to define if an individual is not yet or just enough marked
by the culture and blood of a nation to be regarded as belonging to it.

It may be objected that people simply want to believe that it is history, to have a kind of
metaphysical justification. To a certain extent this is true, but since the Enlightenment it
becomes an increasingly difficult position to maintain. The repercussions of metaphysical
ideologies have shaken the whole world and have become less convincing.
Political science tried to restore legitimacy, which was lost together with metaphysics,
through different models of (virtual) free consent: Contractualism and democracy. Legitimacy
is then an intellectual construction, relying on the consensus of all on the procedures by which
decisions are made.

2.

Objective and subjective legitimacy are of different importance for the model. Subjective

legitimacy (i.e. factual acceptance, with or without reason) depends only on the individual’s
capacity to judge (emotionally or rationally), but objective legitimacy has further
preconditions:
Any legitimate system has to be just. One aspect of Justice is to check natural inequality. To
be able to check this inequality, its area and extent have to be assessed in some way. There are
two levels where inequalities have to be balanced, once within a political system actually
working, but also already before, when the political system is agreed upon.
The problem of initial disadvantage is left aside when the social contract

115

is conceived as

virtual, with virtual actors (thus rational and, as to Rawls, ignoring their individuality). In
reality the desire of the disadvantaged to install a political system with equalling effects to
their favour is in concurrence, and in this concurrence some are more disadvantaged than
others. This initial disadvantage, in itself caused by nature, is prolonged and some persons
will end up worse despite all attempts to establish real equality.
Some people for example do not dare to cash in their social welfare, how can they be
expected to demand effectively a higher treatment in front of experts, even if it would be
necessary to check their disadvantage? The initial disadvantage may be a bad financial
situation of the parents. Resulting lower education leads to a less good capacity to seize the
problem and possibilities to change the situation, and they will be less apt to articulate and
form an effective opinion.
This problem is inherent to objective legitimacy, but some models come closer to the ideal of
equal chances than others. The presuppositions for real acceptance are not accumulated, but
acceptability can still be a goal. The acceptability the model promotes is not a pure form of
argument, but relies on a higher degree of participation with equal weapons. The fact that
decisions on competences are left open makes the political system more abstract and neutral
to prepolitical exclusions. Within the political sphere people can use their votes in the area
they know best (rationality), or where they are most convinced (emotional). In those areas it is
less likely that experts can shy them from standing for their interests. Justness and legitimacy
rises in proportion to the representation of the people’s will in the result.
In this sense the model is the only legitimate system, because it is relatively better than any
other ways of objective legitimisation.

3.

Legitimacy is often seen as a function of the public participation. Direct democracy and

also general elections are often criticised for the low percentage of participants. With the
model the participation in every single question would be in tendency even lower, but the
integration of individuals in political decisions as such will rise.

115

Whose purpose it is to set in work a political system.

Groups who nowadays rarely participate in public affairs can be expected to respond most
readily to the new possibilities. One example is the younger generation, which has fewer
problems to use the new media and has therefore higher chances to trigger a popular initiative.
Another example is the supporter of small political parties, who has to fear to be always in the
minority and participates for that reason in proportion much less. The chance to influence the
outcome is equal to those of the others and this formerly underrepresented person gets an
incitement to take part in the polls.
As non-participation in single decisions is rational in a situation of scarcity of votes, a person
can be said to have participated in all decisions when this person has used votes at all.

116

Legitimacy rises.

117

After von der Groeben

118

a first criteria to accept a constitutional system is that it can

promise success in an area where the values and goals of a great majority of the citizens are
situated. Once the system was a goal in itself and categories like order and obedience,
faithfulness and sense of obligation were enough to create legitimacy. With the secularisation
and the pluralism of values a system will only be accepted if it seems to be of best use for the
accepted goals. But these goals may be different now for different citizens.
In my opinion the problem is that the interests of the citizens cannot be assessed in abstract
and if they could they were subject to rapid change. The fluctuation between social classes
and their differentiation is rising and even more are interests. With every change in life-style,
belongings, place, qualification etc., interests are likely to change, too.
To belong to a certain social class in the traditional definition at a certain time does ever less
precondition the individual’s interest. A market corresponds more than a rigid institution to
that situation.

Polycentricity

The Viking was Norwegian and the “Neanderthaler” was German, the immigrant who is
living in my house is alien. We all respect the mystification of ancestors who were completely
different from us and accept that they belong to our national history. The non-nationals share
our life-world, but are condemned to the status of a foreigner.
The space and time a nation refers to is not the real territory or real space. History mystifies
and legitimates what is long gone to the disadvantage of others living amongst us.
A special encyclopaedia lists 210 peoples without state

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, and estimates on the number of

peoples without states run as high as 9000.

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Exclusivity of territory cannot work out.

Territories are never homogenically populated and why should they? Only to make them
easier to administer? We have better tools than ever to find more intelligent solutions. The
size of the nation-states is, along with their existence, an historical accident. Only ex-post can
we interpret it as a logical step in an evolutionary process. The nation-state was not too big to
risk disintegration and not too small to risk being overwhelmed by its neighbours, both in
relation to the instruments known at the time

121

116

A more extreme interpretation is possible: When the person starts to think if it should participate and sacrifice votes, then it is

already reacting to the logic of the system, because the person examines then if it is concerned. The fact to give no votes at all
means in this case that the concern by the decided competences was too low. This person is nevertheless an actor in the sense
of “He who is silent is assumed to be consenting”.

117

John Stewart "Democracy and local government" in "Reinventing Democracy”, p. 39-56, 54.

118

Hans von der Groeben “Legitimationsprobleme der E.G.” Nomos Baden-Baden. Quoted after Norbert Kohlhase op. cit. p. 68.

119

We can be glad most of these people are peaceful, the Sami for example have in their language no word for "war".

120

James Minahan, "Nations without states", p. 485.

121

Martin Peterson “Europe: Identity and ideological changes in the 1990s“. Working report from the Inter-European Research

Symposium in Göteborg on May 8-9, 1992.

The partial ideals have to be weighed in a meta-discourse. The addition of the majority’s
opinion in each of the discourses does not provide a consistent solution. This leads to the
question how to represent one’s specific interests. Direct democracy could deal with the
problem, but it is technically unfeasible:

Direct

democracy

Remedies

The number of the decisions is too
high.

Representational systems can reduce the number of
the decisions.

Policies are too complex to be
separated into “Yes or No”
questions and non-experts cannot
decide what the best solution is.

To compete with the complexity the parliaments
developed a system of commissions, specialisation
of the representants and consulting procedures.

The most important disadvantage
seems to me though, that most of
the decisions are only of interest
for a certain group and forbid
therefore to be treated by all.

To avoid that unconcerned people are bothered with
the decision and concerned are left out,
decentralisation (federalism) and transnationalisation
(international cooperation or codecision as in the
EU) was instituted. This solution stems on the
assumption that concern is located, that it has a
certain place in the territory. As shown this is a false
assumption and in this paper I propose a
constitutional setting working without this
assumption as far as possible.

The model tries to open up towards polycentricity.
We live in a world with one centre when one geographical space responds to all needs.
Whether we want education, employment, influence public affairs or buy goods, we have to
go to the city. This place becomes a bottleneck. Rush-hours and high rents are the symptoms.
A solution in this situation is decentralisation. The computer-firms of Silicon Valley did not
choose to build in a city, but outside, where the rent, taxes and rush-hours were no problem
yet.
The Austrian Wiener Wirtschaftsuniversität chose to offer the same lecture three times a
week, once in the morning, once in the afternoon and once in the evening. The students can
choose then which one fits best, if they have part-time work for example. Thus students can
earn money also at daytime and in irregular time schedules. The university wins as well: Its
locations and staff are not anymore overcharged in the “rush-hours” and empty afterwards.
The same idea can be applied to the terms of the studies. Why are the locations of the Munich
University so few used for five months of the year, and in the rest of the time it is impossible
to get a seat? It seems not very clever to me to use expensive buildings in the middle of the
city only for a short time.

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Decentralisation is equally necessary in political questions. This already worked without a
new hierarchy, but in overlapping time-spaces.
In medieval ages there were mainly two kinds of centres, the Church and the non-spiritual
power.

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Centres at that time were cloisters and courts. They had another scope and accepted

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The university should at least rent out the rooms during the vacation. In my opinion the year could be split into three

trimesters and every student and teacher can choose two, having the third free. The organization would profit from the
decompression.

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Political theory always worked to represent the society in its decisions. In feudal times the society was built upon the mutual

rights and obligations of the lean-master (e.g. the king) and the lean-taker. These personal bonds could be modified when
representatives of the groups met and consented to it, because there were no other interest groups involved in the decision and
therefore the assembly contained all who should decide. Today the theory claims to represent all people of a public power in a
territory and thereby all. Tomorrow the system could represent all in the exercise of a competency interested persons and
therefore again all who should decide. This is the logical consequence if people do not consider that responsibility for others

each other as equal. The earthly power did not generally submit the servants of the Church to
their norms and vice-versa. If it can be called Sovereignty, then it the earthly power ruled one
part of the situations and the Church the other.
Historically, political theory proposed to split up state-power into two, then three powers.
Actually this can not be conciliated with the principle of inner sovereignty of the state. A
mirrored process for outside sovereignty would be to distribute competency on different
levels. This does not have to be a federation, where we have again a federate hence superior
state. It can be thought in parallel spheres like Church and Crown in the premodern period.
In history, the Emperor and the Pope were chronically in conflict. The model, properly
designed, may prevent fighting. The conflicts still occur, but there is a constitutional
procedure to solve them.

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In an increasingly complicated world, we cannot understand every detail. We must not lose
the general scope.
When a CD-player stops working, we will not analyse which chip broke down and why. We
will either replace a module, if we can localise the problem, or we will buy a new, hopefully
better CD-player. Traditional referendums can be compared with searching the broken chip,
changing government with replacing a module and redistributing the competency with
replacing the CD-player.

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The rationale behind changing government is that the problems have a remedy, which can be
found and applied. This is a mechanistical view of policy and it sends the government out to
mend broken microchips. The model proposes to apply new, more problem-oriented
instruments.

The crisis of politics

Nationality gave the frame for a relation to a large enough group to cover all interests. In the
times of industrial revolution it was appropriate to think in categories of social classes.
Describing an important aspect of reality, the categories of labourers and capitalists or later of
employers and employees formed also the way in which reality was perceived. The current
political parties are expression of these oppositions. A generation ago a worker could blindly
vote the same party of the left and be sure to have contributed to the representation of his
cause.
The manager of a multi-billion $ company is employee and the merchant of hot chestnuts is
capitalist when he owns the tin-stove. Today the interests of workers are neither stable nor
common and a change of social class is much more probable. Indeed have nearly all self-
employed once been employees themselves and many employees own a part of their company
by means of shares.

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The employer-employee opposition became a dialectical relation,

where every individual is part of both poles.
The once appropriate categories became increasingly weaker in describing correctly the
bundle of interests an individual has. In the same degree the political parties, which formed in
their centre, have lost pertinence. The consequences are

greater potential of conflict inside the parties. The common interest is less obvious and
the official position of the party depends increasingly on politics of power.

depends on having the same stamp in the passport, but on a more substantial common bond. This can be a common language,
but even this may be regarded as formal in comparison to common personal interests.

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In history those conflicts were decided by power, but could be tabled again any time.

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The metaphor refers to Chapter two “The advantages of the model”, point 13: Not the goals of policy–making and their

relation is in question, but the know-how.

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The capital of the employees forces the managers to drive the employees to work or even fire them, which is obviously not in

the interest of the individual as employee, but in the interest of the individual as share-holder.

Less commitment to parties, because the individuals’ interests are more deviant and
therefore the parties’ positions appear more eclectic than before.

An increasing number of voters which are prepared to give their vote to another party
than the last time.

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Often the decision whom to give the vote is more or less

spontaneously

129

or based on a single question, which gives place to demagogic

strategies

130

The success of new parties which try to avoid the old stereotype. ”Die Grünen“ in
Germany focus on the common interests of all consumers in an ecologically good
environment. Also “New labour” in the UK can be mentioned here.

a shift towards representation of interests through NGO‘s. NGO’s are not better just
because they are non-governmental, but they are more adapted because they have no
territorial restrictions and no difficulties in transgressing borders of sovereignty.

Can another category be found that integrates a considerable part of the people? We can
assume certain ecological and social concerns as being capable to assemble and categorise
everyone, but many other concerns cannot. In those areas the political sphere often rejects to
provide decisions, because those questions are highly contentious. The judiciary overtook this
task, and the US Supreme Court, the Bundesverfassungsgericht, the Corte Costituzionale and
last but not least the ECJ are examples. In all those countries the silent transformation of
political questions to judicial questions is opposed. This opposition points out that the
democratic legitimacy of courts of law is low compared to the people or their representatives.
Law is threatened to be interpreted too extensively. The political critique, which was the
reason why the political sphere did not come to a decision, threatens the courts now. The right
addressee for delicate questions is the voter.

Financing

When public tasks are exercised by different entities, these entities have to be financed. If
they would be financed by one centre, their policy would be entirely dependent.

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If every

new centre gets with the competence for the task also the competence to cash general taxes,
the citizens would soon be oversollicited, because the total amount of taxes could not be
controlled.
The solution is to connect the competence for a task with the competence to demand a
purpose-bound fee. There is one complication. If for example health-care is financed by fees,
the ill would quickly be bankrupt and everybody risked the same fate without hope for public
solidarity. The model would privatise everything.

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Therefore social security has to be

guaranteed by an insurance-system. The sane pay for the ill and the young for the old, because
they might be in need themselves.
The effect is, that every individual controls the personal total of insurance-fees. The
concurrence keeps the performance of public tasks efficient.

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The shifting of a competence

to another centre works, because there are no debts to transfer. Solidarity cannot anymore be
solicited on grounds of a mythical national community. The individual’s own interest in social
security replaces solidarity.
Privatisation has unsocial effects, because the capital determines the organisation, and capital
is not equally distributed. In this context the organisation is defined implicitly by the polls.

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“Wechselwähler”

129

“unentschiedene Wähler”

130

“eingelöste und uneingelöste Wahlgeschenke”

131

There are many further problems: Either there would have to be one centralized state, or the different actors would constantly

quarrel about the financing.

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The example of the USA shows the disadvantage of a great privatization of public tasks.

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The entity risks losing the competency if another entity can provide the service cheaper or better.

The political will of the electorate forms the public task as social as wished. In the same time
the salutary effect of privatisation, the absence of subventions from the state, is preserved.
The public finances are brought back into balance. This balance is not only a precondition for
further integration into a currency community, but furthermore for all exercise of public
power.

Post-modern flexibility and a true copy of communities

Whatever category applies to define a community of people, the category will always cut
people in “yes or no”-camps, in friend or enemy. There will always be some people in
between, who do not properly fit in. In national-states there are expatriates, exiles, immigrants
of different generation and national minorities. In political communities there are people who
are interested in a certain policy to some degree, but also in another policy to the same
degree.

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In the EU there are “EU-foreigners”, i.e. non-nationals which are nationals before

the law.
With a top-down approach all people are clear-cut members of either the in-group or the out-
group. Post-modernity is not “either-or”, but “neither-nor”, “both-and as well” and “more or
less”. If the statistical distribution can represented like this (Bell-distribution):

…

The distribution refers to anything the categorisation can take place in. The graph gives the
percentage to which the categorisation fits. The sector below the graph can be described as the
characteristics in number and extent which fit the goal of the categorisation and above the
graph those which do not.
Mathematically, a person can only be member or not member of an oppositional pair. A
person can only either be born by German parents or not be born by German parents.
Nevertheless in both groups are great differences. A person may be born by parents who are
regarded Germans because their parents were German before they emigrated, but they have
no bonds to Germany apart from the definition. Another person has been born in Germany,
speaks exclusively German, has always been living in Germany and is, in spite of that, not of
German nationality after the definition.
As long as communities are defined by categories they can never be a true copy of the real
communities.

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A high employee and share-holder may have equal interests in social as in liberal policies.

Outlook

The previous chapters are demonstration of the virtues of the model for polycentricity. There
are still difficult questions to answer, for example how institutions can be financed without a
central tax authority. Although I am keen on proposing solutions, I think this is too technical
and too early in this stage. More basic critique and skepticism has to be fought first when this
model shall have a chance. Especially the current actors on the EU stage have to be
motivated. Increased legitimacy alone may not convince them. There are other reflections,
which could.

The federalist fears a new “Luxembourg compromise”, where they had to incline before one
single stubborn nation. Adopting the model, the European system can hope for the highest
integration bearable by the people. Federalists will appreciate this safety against the next
period of “Europhobia”. One step back in hard times is better than losing grip altogether.
The confederalist wants to keep integration as low as possible. With the model in work, the
national system can hope to use its closer connection to the people, for example through the
intermediary institutions of a civil society, to motivate them to promote the “national
interest”. Confederalists can hope for the minimum degree and time of power shift away from
the nation.
The functionalist will consider the following argument:
A constitution shall be stable to function as guideline and general framework. But due to the
process of “deterritorialisation of social relations” coexisting “with reterritorialisation of
social relations”

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, the rigid definition of competences in a constitutional paper

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is an

obstacle to any swift problem solution. To get the most appropriate instruments against
problems, we should adopt this model.

These motives may draw attention to the model. I am thankful for any proposition for
amendment

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, because only then it has a chance to contribute to the development towards

polycentricity.

135

De Sousa Santos, op. cit., on globalization, p. 270.

136

States without written constitution have similarly very rigid definitions of competences.

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Write to: Lvoltmer@web.de.