EU construction

The general case for majoritarian mechanisms in general is that such mechanisms secure the relevant interests of affected parties from standard harms to an acceptable extent. Majoritarian democratic mechanisms are designed to allow all affected parties equal shares of political control in some sense. The argument for such allocations of political power is comparative: it must be argued that majoritarian mechanisms are better suited than alternative allocations of political controls, in that they ensure the relevant interests for all parties. Such arguments rely on substantive empirical information about how democratic measures and alternative procedures are likely to work, including the likely abuses of power they and alternatives give rise to. Troubling cases include those where there are permanent minorities, and those where the set of affected parties is contested, such as when the plight of animals or the environment is at stake.

Two examples of troubling issues can illustrate contractualist arguments regarding institutional reforms aimed at increased majority mechanisms.

 The contractualist approach is concerned to assess stable institutions by their effects, both intended and unintended, on affected parties. We must be attuned to the incentives created by institutions over time, and how they affect individuals´ values and perception of themselves and of the community they live in. Long-term unintended effects of social institutions are notoriously difficult to predict and hence assess. Nevertheless, institutional theory may throw some light on these issues. For instance, the case against voting on representative legislators cannot rest with Rousseau’s scornful dismissal of voters being free only on the day they vote. Rather, the issue must be whether such a method is better than the alternatives in terms of securing the interests at stake, where we consider the incentive effects on voters and representatives. Another relevant example concerns the centralising effects of European institutions.

Against mixed models

In mixed models of government one body enjoys legislative, executive and judicial powers. To be sure, even in states which split powers the executive and legislative functions are not always clearly aligned with different bodies. Often the executive not only executes laws, but initiates legislation and makes policy, while the legislative often reviews and influences the execution of policy (Vibert 1995). However, the concern for transparency and avoidance of standard threats caution against mixed models of government.

In contrast, those approaches which stress the pervasive need for democratic participation and majority rule might regard all attempts at separating powers as anti-democratic and hence illegitimate. The separation of powers puts some aspects of government out of reach of representatives, and hence of the public.

Systemic effects are unpredictable at the level of day-to-day decision making. Second, citizens may reasonably want guarantees against likely threats of abuse. Institutions and the allocation of power must be tailored with these sources of instability in mind. To be sure, the representatives and executives must be virtuous, but citizens may reasonably insist on protection against likely threats- including the possibility that some will bend the rules inappropriately.

The case for majority mechanisms in the EU.

What role should majoritarian mechanisms play at the level of the EU? When decisions are moved to the European level, we should suspect that majority rule as a means of accountability and control at the same level secures a better match between the decisions and those affected. Thus majority procedures are often regarded as an improvement over the current situation in the EU.

European level and there are several competing additional suggestions for how to increase majoritarianism in the European institutions. In the following I indicate how contractualism approaches these issues.

The commission has multiple functions:  promotion of the common interest, monopoly of legislative initiative and guardianship of Community law.  Even though the commissioners are regarded as civil servants with loyalty only to the EU and the `European interest`, they frequently defend national positions in the Commission.  There is then, representation in a weak and direct sense, and the Commission decides by majority vote.

The appropriate focus for increased democratic rule should not therefore be the Commission. When the Treaty of Rome established, member states were regarded as the most likely sources of inappropriate threats to the regime. However, the EU is developing from being institutions created for the effective pursuit of private interests, towards a union with political aspirations guided by a conception of the common good suitable for states.

Against majority rule?

We now turn to consider some constraints on the role of majority rule. Contractualism is not of itself sceptical of anti- majoritarian institutions in the EU. I here sketch arguments concerning two issues: the legitimacy of constitutional constraints on the scope of majority rule; and the legitimate role of states´ powers, possibly overruling a majority of the citizens in Europe.

A constitution with rights?

Should there be a European constitution with a bill of rights? Few deny the need for clear `constitutive rules` which specify the various government bodies and their legal powers. The lack of a European Constitution in this sense prevents transparency, which all agree is a minimum condition for legitimacy.

Bellamy argues instead for unentrenched rights, claiming that individuals are more likely to accept the legitimacy of decisions they disagree with if they feel that they have been involved in making them and there are opportunities for reopening the debate in the future. Democratic politics offers the possibility of a fair compromise for the resolution of issues which allow for reasonable disagreement. Moreover, democracy protects rights, by institutionalising procedures and dispersing power allowing individuals to fight for their rights themselves (Bellamy 1995).

The constitution is anti-majoritarian. One function of constitutional protections through rights is precisely to secure certain interests of every citizen- even those of minorities- against day-to-day majoritarian politics. Some issues are placed off the political agenda. From the point of view of contractualism, this is justifiable in so far as some such arrangement is needed to secure the vital interests of each citizen against standard threats.

Constitutional constraints on political debate , for instance by a constitutional court, instead serve to give notice to the public that the political powers now take as extraordinary course, that or the unintended systemic effects of political decisions now cross certain important boundaries.

Federalism and state powers

A central political and philosophical issue regarding the future of Europe is the legitimate role of the member states. The reason why small states enjoy disproportionate influence is of course historical. Unlike the USA, the EU developed and develops from pre- existing independent, legally equal, de jure sovereign nation states.

The prior formal sovereignty of each state translated into formal representation which gives citizens of small states disproportionate influence, so that, for example, there are many more members of the EP per thousand citizens for the small states than for the larger ones and small states are overrepresented for their population size in the allocation of votes in the Council of Ministers.

A states system would seem difficult to justify in so far as it entails that individuals in different states enjoy different life-chances. So while states may be acceptable as a second-best solution in times of transition, contractualism would seem to insist that, eventually, all social institutions should have a regional and eventual global reach. The current status of states in the EU would appear to be inappropriate, since the interests of their citizens- are unduly favoured.

Member states would continue to enjoy a variety of powers. From the Amsterdam Treaty it would seem that the trend is towards a bicameral system of governance where the Council continues to be one important source of control. Even though the distribution of votes in the Council varies with population sizes among European states. And in the Commission every state has one Commissioner, with the largest five states having two each until future expansion of the EU. In order to reduce the democratic deficit, by ways of equalising citizens` formal influence, the power of states and national parliaments should be reduced by reducing the powers of the Council and possibly of the Commission. Moreover, their votes should reflect population size more exactly.

A justification of states with significant powers might be provided within contractualist theory if coalitions of citizens are allowed in the choice situation, parallel to Locke’s contractualist argument allowing a property owners´ state. This strategy may yield communitarian conclusions, but is fraught with great theoretical difficulties.

To be sure, there are reasons to move slowly in reducing the powers of existing states, so as to not upset expectations. As part of political theory of transition from unjust situations, we could plausibly regard states within the EU as a permissible deviation from institutions which would be acceptable to all.

The primary normative role of states may be to serve as a locus of checks and balances within a federation, confederation or other order with federal features. The most just stable system of regional institutions may involve a distribution of checks and balances where states play an important role as a check on centralist tendencies. Thus one might argue that member states should retain roles regarding constitutional change to prevent hasty or unwarranted centralisation. This defence is based on the interest of individuals in controlling institutional and cultural change, allowing their expectations to be met. 

Conclusion: the ends of Europe

The objectives of the EU are essential for the development of a normative political theory of Europe. The principle of subsidiarity brings his out:

The Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member States and can therefore, by reason of the scale of effects of the proposed action, be better achieved by the Community.

It must be applied by some institution, such as a European Court, then parties disagree about the scope of heir powers. This in turn, however, involves considering the general centralising tendency of EU institutions, including the European Court of Justice (Mancini 1991).

The third, and perhaps most fundamental, issue is that a proper application of the principle of subsidiarity requires us to be clear on the legitimate significance of states and of the powers of the European commission is due in part to disagreement on this issue. The objectives of the EU are hotly contested, and this has an impact on what powers it should enjoy.

Deliberation about institutional changes is needed to ensure the efficiency of the European institutions after enlargement. However, since, in the absence of objectives, talk of efficiency becomes meaningless, deliberation about institutional change cannot be separated from the question of objectives. To illustrate: the reflection group has no qualms about maintaining the powers of the Commission. The Commission is said to work most effectively when it can mix legislation, enforcement and bargaining in furtherance of the goals of the EU. Yet, the mix of bargaining both about and within legal frameworks clearly constitutes an avoidable threat of abuse of power.

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