"Demoicracy" follow-up: reflections on the legal and institutional implications of the concept

This post is a follow-up to the fascinating discussion at NYU Law School on March 7-8, entitled “Understanding the EU and its Crisis through the Lens of Demoicracy: A Conversation,” organized and hosted network members Kalypso Nicolaïdis and Joseph Weiler.  The first day focused on some of the philosophical and theoretical dimensions of the concept of “demoicracy,” particularly as defined in Kalypso's work.  The second examined the potential legal and institutional implications of the “demoicratic” character of the EU.  

Unfortunately, because of commitments at my day job (so to speak), I couldn't stay for the second round.  Nevertheless, I was able to write up some thoughts on the topic, which I passed on to Kalypso in lieu of attending. Network members and europaeus|law readers might also find these thoughts interesting, perhaps with an eye to furthering discussion on the question, particularly in the context of the Eurozone crisis.

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First, some general normative considerations:

To me, your concept of "demoicracy" captures the essential reality in the EU (following Joseph's lead from yesterday):  weakly legitimated supranational bodies possessing great amounts of regulatory power operating in relation to strongly-legitimated but functionally constrained national constitutional bodies as representative of various "demoi."  The normative challenge in these circumstances, as my book Power and Legitimacy argues, is to "maintain the connection" between these two levels of governance so that (i) you get the benefits of supranational regulatory power where functionally necessary/beneficial to the political ends of integration, but (ii) always maintain the national level as viable democracies in a historically and culturally recognizable sense.  Put it another way, one must maintain an "equilibrium," in a Weiler "Transformation" sense, between the national and the supranational, following the "community" not "unity" vision.  And to link it to your work, such equilibrium is necessary to "govern together but not as one."  Even the most fervent advocates of integration pay at least lip service to the idea that integration must maintain the member states as viable democracies -- integration is about empowering the MS to do things together that they can't achieve alone, without negating their essential characteristics as democracies in a recognizable sense.

With these basic principles in mind, I would suggest four categories of practical, normative impact of the "demoicracy" concept:

1.  Delegation:

Demoicracy has both substantive and procedural importance on the question of the nature and scope of authority delegable to the supranational level.  At minimum, procedurally, demoicracy implies the need for supra-majorities or other special procedures (perhaps referenda) when a proposed delegation to the supranational level impacts national democracy in an essential sense.  Moreover, it implies a disclosure requirement:  the implications for any delegation on national democracy must be fully disclosed and deliberated as part of the ratification process.  There can be no implied repeals of essential attributes of democracy (EMU is especially problematic on this score) and indeed there should be a canon of treaty construction against such a claim (see treaty interpretation below).

But I would in fact go one step further.  If a basic premise of integration is the maintenance of member states as viable democracies in the context of integration, this implies a substantive limitation on the scope of authority that is delegable to the supranational level.  This is an essential lesson of the history of the modern administrative state: such substantive delegation constraints are necessary to maintain the democratic character of the political system in a historically recognizable sense.  This does not constitute a bar to delegation -- as the history of administrative governance on the national level suggests, the line between the authority which must be maintained and that which is delegable can evolve.  But actors must be sensitive to the fact that line exists, unless and until they are prepared to recognize that the member states have been absorbed into a genuinely autonomous democratic system at the supranational level.  But as long as it is a "demoicracy" as opposed to a "democracy," this substantive limitation must be respected.

2.  Accountability

Beyond delegation constraints, demoicracy has a legal/institutional impact on the legitimation of authority which can otherwise lawfully be delegated.  Because the supranational level is weakly legitimated in autonomously democratic and constitutional terms, it requires mechanisms to "borrow" that legitimacy from the member states.  This is the argument of Power and Legitimacy and I will not recapitulate it here.  The constitutional bodies of the member states (executive, legislative, and judicial) remain as essential mechanisms through which the legitimacy of functionally necessary supranational governance is "mediated," following the model of the "postwar constitutional settlement of administrative governance."  See my book for details.  These mechanisms are essential to overcoming what I call the "democratic disconnect" that afflicts technocratic-juristocratic integration.

3.  Treaty interpretation

This is one of the foci of my 1999 article in the Columbia Law Review, entitled "Democratic Legitimacy and the Administrative Character of Supranationalism: the Example of the European Community."   Contrary to the approach of the ECJ -- which views the functional demands of integration as the paramount interpretive principle -- demoicracy implies that the maintenance of democracy on the national level deserves at least equal, and sometimes paramount weight.  This will have an impact on the interpretation on such issues as subsidiarity and "legal basis" disputes.  The 1999 article as well as later work goes into extensive detail on each.

4.  Conflicts between orders

Here is where demoicracy links to Christian Joerges's work:  the concept implies substantive doctrines to adjudicate between conflicting orders.  But I would go a step further, building on a model that Joseph once famously advocated (calling for a "Constitutional Council" for the Union).  I would call that a "European Conflicts Tribunal" and detail that proposal in my 1999 article (summarized also in the Conclusion to Power and Legitimacy).  The point of the proposal is to legalize conflicts to the greatest extent possible but, in extremis, to allow member states to invoke "national democracy preservation" (if you will) as the basis for a post-hoc opt out of policies that ultimately prove endangering on that score.  This sounds much more radical than what it would prove to be in practice -- see both my 1999 article and the Conclusion to Power and Legitimacy to get a sense of its tempered qualities.  Properly designed, such an institution would great reinforce integration by creating a legal mechanism whose telos, in extremis, would be to supervise the "equilbrium" in a Weiler sense, ensuring genuine "constitutional tolerance," and hence "demoicracy."