by
Chien-Yi Lu [email protected] Associate Research Fellow Institute of International Relations
National Chengchi University Taipei, Taiwan
Paper prepared for the First Annual Research Conference of the EU Centre of Excellence (EUCE)—The Constitutional Treaty, May 21-23, 2007, Halifax
Abstract
How can we reconcile the transparent and inclusive Constitution-making process with the rejection of the Constitutional Treaty? I argue that even though the communicative channels were opened to encourage participation, they were not utilized because of the absence a European public sphere (EPS). Stressing that the concept of public sphere only became relevant owing to the functions it performs to make democracy possible, I demonstrate that an EPS never emerged to allow the Europe-wide public use of reason. The findings of this article, namely that the absence of the EPS deprived citizens of the right to meaningfully participate in the Constitution-making process, have far-reaching implications for the future of the Union. The ratification of the Treaty will not be the last challenge of its kind. Unless the importance of the EPS is taken seriously, the perpetuating elite-citizen gap will result in the same mistake to be repeated time and again.
Introduction
In spite of opinion polls indicating the likely rejection of the Constitutional Treaty (CT) by the French and Dutch voters, the panic and disbelief among the
European political elites following the referendum revealed that the elites were utterly unprepared for the negative results. ‘What’s wrong with them (meaning the ‘no’
voters)?’seemed to be the common question beleaguering their thoughts (Blair 2006).
What was wrong, for the elites, was that the voters failed to understand the CT. Had they understood it, the results would have been different.1The political elites were not the only ones stunned by the results. The press described the French referendum as‘a masterpiece of masochism’(Liberation) that ‘turned everything upside down’(Le Figaro). De Telegraaf noted that even though the Dutch ‘nee’was much expected, particularly following the French ‘non,’‘nobody foresaw the vote against to be so massive.’Even veteran scholars of European integration were betting, at the eve of the referendum, on a ‘petit oui’(Ross 2005).
There were, however, good reasons to believe that voters would approve the Constitutional Treaty. Among other things, narrowing the elite-citizen gap, fighting the problem of popular disengagement, and enhancing the democratic legitimacy of the European Union (EU) were what instigated the decision to create a Constitution in the first place. The fact that the Convention was unprecedented in its openness and inclusivity also enhanced the expectation that the European citizens, seeing the drafting of the Constitution unfolding in front of them and with the opportunity to
participate, would find the Constitution at least acceptable.
How can we reconcile the discrepancy between the transparent and inclusive Constitution-making process on the one hand and the rejection of the CT by the voters on the other? I argue that even though the communicative channels were opened to encourage the participation of citizens, they were hardly utilized because a European public sphere (EPS) was not present to sustain effective information flow and
meaningful debate among citizens and between elites and citizens.
Contradiction: Transparency, Inclusivity, and Rejection
The origin of the Convention depicts the degree to which the European elites had been troubled by the problem of democratic deficit. In his Humboldt University speech in May 2000, Joschka Fischer expressed his concerns that the process of European integration had been viewed as an undemocratic project, run by a faceless, soulless Eurocracy in Brussels. To tackle the problem, Fischer proposed the launching of a debate on the constitution of the EU. The speech was widely reported and
commented upon by newspapers in the Member States and spurred a series of responses from European political leaders. While views expressed ranged from federalism to intergovernmentalism, all agreed that making the people’s voice heard was the top priority. As a result, the ‘Declaration on the Future of the Union’attached to the Treaty of Nice formally called for ‘a deeper and wider debate about the future of the European Union,’with participation from all interested parties. At Laeken in December 2001, the leaders agreed on the Convention method as the way to produce the final product of the debate.
Given that the common concern of getting closer to the citizens brought the Constitutional Convention into being, it was unsurprising that in designing the
drafting procedure the elites endeavored to make all communicative channels open to the public. In order to ensure broad participation and transparency, an online Forum was created. To reach non-internet-users, the Convention organizers wrote to the editors of all the major newspapers to encourage the media to launch debates of their own on the future of Europe (CONV 14/02:6). Lest the exercise of listening to the citizens became mere rhetoric, the Convention devoted four months —the ‘listening phase’—to identifying people’s expectations and needs from the EU. In the course of the Convention, with the exception of activities within the Presidium, all the
discussions, records, documents, and written contributions exchanged among the
Convention members were made available on the Convention website. In addition, a list of all Convention members with their contact details was available on the website for public use. Citizens could also attend the plenary sessions by contacting the
visitors service of the European Parliament (CONV 9/02). A Conventionnel noted that,
‘up until now, there had been no such public debate with such readily available public information about the major reform in the EU.’2
As a deliberative body, voting was ruled out as a way to determine the consensus among the Conventionnels. Hence, while intergovernmental negotiation was
unsurprisingly still a persisting element in the process, remarkably, the Convention saw representatives of Member States and EU institutions, ranging from federalists to euro-skeptics, leftists to conservatives, ‘deliberated on all issues related to the EU, examined all possible reforms, expressed in public the largest spectrum of arguments ever made about the EU’in the course of the Convention (Magnette 2003:2). Owing to its composition, transparency, and deliberative style, many came to believe that the Convention had ‘proved its worth’and achieved more than an IGC would ever have (Closa 2004:204; Eriksen and Fossum 2004; Maurer 2003; Magnette 2004; Interview with Conventionnels 2004). Those who criticized the EU because it had been built behind closed doors had, as a result of the Convention, ‘lost their argument’
(Magnette 2003:2).
In making sense of the no vote in the aftermath of the referenda, public discourse and opinion polls pointed to factors such as unemployment, fear of globalization and Eastern enlargement. These factors cannot, however, answer why citizens still voted
‘no’when all communicative channels were made open to make them the co-author of the document. Given the impressive efforts to engage the citizens, concerns over unemployment, globalization, and Eastern enlargement should have been addressed during, not after the drafting process; why weren’t they? It is easy to criticize the Constitution as yet another product of elitism; as Blair had put it, ‘we locked ourselves in a room at the top of the tower and debated things no ordinary citizen could understand’(Blair 2006). Yet this is to forget that a European-wide debate on the future of Europe was launched a year before the Convention. During that period and at the inception of the Convention, the political elites did put out flags and wave at the people, trying to catch their attention. Why was the connection not made? It is true that all constitutions are written by elites. It is also true that in national contexts, voters regularly say ‘no’to their political elites through referenda. The difference with the CT, however, is that it was explicitly about the problem of popular disengagement and ways to change it. In fact, contrary to the intention of narrowing the elite-citizen
gap through Constitution-making, the process only revealed and magnified how deep and wide the gap is.
The key problem, I argue, is the absence of an EPS. Without an EPS to sustain meaningful cross-level and transnational communications, the so-called
‘European-wide debates’and ‘dialogues’were launched in a vacuum. Hence, when the ‘Europeanized’elites came up with transnationalized solutions, the European voters, confined in the public spheres they resided in, could only test those solutions against ‘national’experiences and ‘national’visions; they found, unsurprisingly, the solutions unacceptable. By the same token, the inability of the elites to discern the will of the people during the drafting process is also just a natural result of the absence of an EPS. The absence of an EPS perpetuates the discrepancy and the conflicts between the ‘Europeanized top’and the ‘un-Europeanized bottom,’as was epitomized in the Constitution-making experience.
Functions of the Public Sphere
The public sphere (PS) is a realm of our social life that hosts myriads of public forums, links small, private circles of discussion into larger, public conversations.
Woven by a variety of media—print, electronic, and face-to-face encounters—it occupies the space between the scattered, ill-informed, and poorly developed private opinions on the one hand, and the approximated public opinion on the other. By synthesizing streams of communication and sustaining the public competition of private arguments, the PS helps to channel relevant societal problems into topics of concern that would allow ‘the general public to relate, at the same time, to the same topics’(Habermas 2001: 17). Even though the media are multiple in a PS, the exchanges taking place are inter-communicating. ‘The discussion we may be having on television right now takes account of what was said in the newspaper this morning, which in turn reports on the radio debate of yesterday, and so on. That’s why we usually speak of the PS, in the singular’(Taylor 1995:259). What takes place in a PS is a collective effort of truth-seeking both in the sense of objectively/scientifically determining cause-and-effect relationships and subjectively/normatively
building/renewing the value-system of a society (Risse 2000). The PS gives
deliberation a ‘spatially and temporally extended form of publicity’(Bohmann 1996:
43), which helps to relieve the constraint of ‘deliberative economy’where the
legitimacy of deliberative results remain questionable due to the fact that participation in a given time and space can never be broad enough to include all. With the presence
of a PS, the idea of legitimacy can be detached from ‘a head count of (real or imaginary) reflectively consenting individuals’(Dryzek 2001: 657).
The PS is important not just to those who have much to say and who want others to listen. Being a social space sustaining a shared way of comprehending the world both in terms of facts and values, it is important to those who feel they have little to say as well. In a PS, therefore, ‘actors not only communicate among themselves but also address their communication to a third other, i.e. to an audience.’(Trenz and Eder 2004:9). The information, analysis, and viewpoints made readily available in a PS help the silent individuals to make sense of the overwhelmingly complicated public affairs. The PS is hence not just where the political agenda is settled, but also where individual preferences are shaped (Neyer and Schröter 2005:6).
To better understand the PS, it may be helpful to distinguish its functions between horizontal and vertical ones. Horizontally, the PS performs society-making functions by connecting citizens with one another. Vertically, it allows public opinion to steer public policies, hence connecting the society with the state.
The literature of deliberative democracy illuminates how the PS, inherently deliberative in its operational logic, serves to connect citizens with one another.
Unlike aggregative democracy, which aims at gathering individual preferences and transforming these preferences into a collective choice in as fair and efficient a way as possible, the deliberative approach arrives at collective decision-making through open and un-coerced public reasoning among equals. In aggregative democracy, citizens are treated as atomized individuals. Since the interests of each individual are
sacrosanct, there is no need for citizens to leave the private realm of personal interests to interact with others with similar or dissimilar preferences. Deliberative democracy, in contrast, envisions a distinct idea of a public formed from the interaction of citizens.
Reaching a collective decision is a process of reason-giving whereby the initial
preferences of individuals are subject to modification. The point of public deliberation, thus, is not to discover the ‘correct’answers, but to ensure that as many points of view as possible are considered. The outcomes of the democratic process are legitimate only if they receive reflective assent from all that are subject to the decision (Miller 2000; Cohen and Sabel 1997; Young 2000; Bohmann 1996; Cohen 1989; Manin 1987).
This logic of deliberative democracy implies that the PS does not simply help a society to define what it wants, but by being reflective, it also helps the society to
define and thematize itself (Eriksen & Fossum 2002; Schlesinger & Fossum 2005). It is not just a sphere in which a ready-constituted people debates and decides what institutions and policies it should have, but also a communicative space that helps to constitute social solidarity and create culture (Calhoun 2002). Deliberation within the PS hinges not on ‘the assumption of macro-subjects like the “people”of “the”
community but on anonymously interlinked discourses or flows of communication’
(Habermas 1992:11). It enables a collection of persons to transform into ‘a people’
entitled to govern itself democratically (Calhoun 2002). ‘Collective identity has to be made rather than merely discovered’(Eriksen 2000:55).
This understanding of the PS is the basis on which scholars like Habermas and Weiler refute the idea that the existence of a fixed demos—by whom and for whom democratic discourse takes place—must precede democracy. For these scholars, the relationship between ‘demos’and ‘identity’on the one hand and ‘democracy’and the
‘praxis of citizens’on the other is considered mutually constitutive, with the PS being the indispensable medium that makes solidarity among strangers possible (Habermas 1992, 1995, 2001; Weiler 1995, 2001; Offe 2002; Risse 2003; Van de Steeg et al.
2003; Eriksen & Fossum 2004; Eriksen 2005; Zürn 2000; Caporaso 2005).
Understood this way, Demos refers not to the coming together of a shared ethnos and/or organic culture, but of ‘shared understanding of rights and societal duties and shared rational, intellectual culture which transcend organic-national differences’
(Weiler 1995: 243-4). The normative requirements of the democratic process—such as autonomous individuals with freedom of opinion and information—and the democratic process—such as elections—are seen as mutually reproductive (Zürn 2000: 186).
Beyond generating public opinion, social solidarity, and identity, a PS also has the vertical functions of empowering the citizens to hold the state accountable and to challenge, inflect, and steer public policies (Fraser 2005:40; Taylor 1990:98). ‘The public sphere is not prior to or independent of decision-making agencies but is created and formed in opposition to them—as a vehicle to test the legitimacy of legal
provisions and as a counterweight to governmental power’(Eriksen 2000:55). In fact, what gave birth to the emergence of the bourgeois PS in the 18thCentury in the first place was precisely the need of the private people (the bourgeois) to come together to confront the absolutist state through the public use of reason (Habermas 1989: 27;
Taylor 1995: 217-8). Within the bourgeois PS, ‘the best rational argument and not the identity of the speaker was supposed to carry the day’(Forbath 1998:982). The emphasis of reason and de-emphasis of status effectuated an equal relationship
between policy-makers and policy-receivers and made the notion of self-rule plausible.
The government is put under the pressure to rule in the midst of a reasoning public.
Hence, in taking their decisions, parliaments and courts must concentrate and enact what has already been emerging out of debate among the people. At the same time, the legislative deliberation that is made public further informs public opinion and allows it to be maximally rational (Taylor 1995:264).
Democracy is least constrained and most authentic in the ‘communicatively fluid’PS (Cohen and Sabel 1997:339). Unlike deliberations within the formal political system (where public policies are produced), mass communication within the PS (where public opinions are formed) is relieved of the burden of decision-making. This has the effect of intellectualizing the deliberation within the sphere and elevates the quality of collective truth-seeking (Habermas 1996; Flynn 2004). Whereas the PS has no capacity to solve problems on its own, it can act as a sounding board for problems that need attention, amplify the pressure of problems, and oversee the way the
problems are handled inside the formal political system. The informal PS is to act as a
‘context of discovery,’while institutionalized deliberative bodies take on the role of a
‘context of justification’(Flynn 2004). Without information drawn from the former, even if it intended to, the state will be unable to remain sensitive to the influx of issues, value orientations, and programs originating from the society, and be bound by the approximate consensus emerging from the informal communication to more or less rational premises.
Circumventing the No EPS Problem?
If the existence of a PS is crucial for democratic legitimacy at the national level, there is no reason to think that a supra-/trans-national governing relationship can be democratically legitimate in the absence of a PS. In fact, signs of the detrimental effects of the absence of an EPS have been unfolding for some time. In tackling the legitimacy problem of the EU, some treat the absence of an EPS as irremediable and suggest solutions that could presumably circumvent the problem of no PS. Grimm, for instance, argued that the strong links between the individual and the governing bodies required of democracy are absent at the European level. Decisional power, therefore, should remain at the state level, where the mediation processes including the
communication media, political parties, and citizens associations are better developed (Grimm 1995). Similarly, Scharpf argues that since the EU lacks the ‘thick’collective identity to justify the binding effect of a majority decision, to legitimize the EU,
efforts should be focused on decreasing the Union’s problem-solving deficits (Scharpf 1999). Circumventing the no EPS problem, hence, the mainstream literature considers the legitimacy of the EU to derive from either the representative mechanism inherent in the design of the institutions (the representation model), or the problem-solving capacity of EU governance (the regulatory-state model), or both (Caporaso 2005;
Dehousse 1998). A closer examination of these arguments, however, reveals the limitations of tackling the EU’s legitimacy deficit by working around the problem of no PS, for the persisting absence of the EPS severely discounts the effects of the measures and institutional designs aimed at legitimating the EU.
At the core of the representation model is the notion that citizens in a democracy are empowered to ‘throw out the rascals’that ill represent their interests. Within the EU context, the ‘rascals’that the citizens are supposedly empowered to ‘throw out’
should be found in the European Parliament, the Council, and the national parliaments.
should be found in the European Parliament, the Council, and the national parliaments.