philosophy social criticism 2007 bowman 736 55

http://psc.sagepub.com/Philosophy & Social Criticism

http://psc.sagepub.com/content/33/6/736The online version of this article can be found at:

DOI: 10.1177/0191453707080592 2007 33: 736Philosophy Social Criticism

Jonathan BowmanChallenging Habermas' response to the European Union democratic deficit

Published by:

http://www.sagepublications.com

can be found at:Philosophy & Social CriticismAdditional services and information for

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

http://psc.sagepub.com/subscriptionsSubscriptions:

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

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

What is This?

- Sep 17, 2007Version of Record >>

at Alexandru Ioan Cuza on June 3, 2014psc.sagepub.comDownloaded from at Alexandru Ioan Cuza on June 3, 2014psc.sagepub.comDownloaded from

Jonathan Bowman

Challenging Habermasresponse to the EuropeanUnion democratic deficit

Abstract Jrgen Habermas response to the European Union democraticdeficit calls for a minimal threshold of democratic legislation through anexplicit constitutional founding. He defends a model of freedom as auton-omous self-determination by proposing to tie basic rights in the EU to a uni-vocal form of European-wide popular sovereignty. Instead of constructinga common European political identity, I appeal to the novel democraticpotential of institutions in the EU such as the Open Method of Coordina-tion for mediating overlapping sovereignties in accord with freedom asnon-domination. The concluding example of basic rights to effective parti-cipation for immigrants and permanent minorities illustrates the strengthsof Iris Youngs and James Bohmans republican views of non-dominationover Habermas call for a European-wide collective willing.

Key words James Bohman democratic deficit European Union freedom Jrgen Habermas non-domination Open Method ofCoordination republicanism sovereignty Iris Young

Although the number of European Union (EU) policies and laws thataffect the citizens of its member states increases each year, citizensremain skeptical concerning their prospects for real deliberative influ-ence over EU level decision-making. Hence, arises what has come to beknown as the democratic deficit. In formulating a response, JrgenHabermas has called for the European-wide integration of the will-formation of EU citizens through the founding of an explicit consti-tution. According to this minimal threshold of democratic legislation,citizens would authorize the laws and policies to which they are heldsubject through the creation of institutions that foster European-wide

PSCPHILOSOPHY & SOCIAL CRITICISM vol 33 no 6 pp. 736755

Copyright 2007 SAGE Publications (Los Angeles, London, New Delhi and Singapore) and David Rasmussenwww.sagepublications.com DOI: 10.1177/0191453707080592

at Alexandru Ioan Cuza on June 3, 2014psc.sagepub.comDownloaded from

solidarity. On this proposal, subjects of EU policy must authorize legis-lation through distinctly European exercises of citizenship and notmerely through the political institutions of member state governments.

While I agree with Habermas that a response to the democratic deficitis necessary, in a four-step argument I disagree with his proposed meansthat do not go far enough to incorporate into decision-making all thosepotentially affected by EU law and policy, including an expanding numberof non-citizens. This will ultimately require a much wider interpretationof the democratic deficit than Habermas addresses.

The first step briefly reviews Habermas conception of constitutionalpatriotism. This details how political rights to self-legislating autonomyin the EU are realized through an explicit constitution. By drawing onshort selections from his four published essays on the EU democraticdeficit, we will focus primarily on the conception of freedom as auton-omous self-legislation he utilizes for upholding democratic legislation asthe threshold for legitimate self-rule.

The second step then challenges this conception of autonomous self-legislation and shows how it actually undermines the equality of conso-ciates he attempts to protect through a shared European constitution.As an alternative, more extensive measures of democratic inclusion areproposed by Iris Young on her republican model of freedom as non-domination.

In the third step, I use examples drawn from immigration in the EUand its member and applicant states to develop Youngs characteristicallyrepublican appeal to ties of social and economic interdependence ratherthan a constitution for the realization of a schedule of basic rights.

In the final step, novel governance mechanisms in the EU provide alegal form for a system of basic rights extended to immigrants that canbegin to answer the democratic deficit by making both the EU and itsmember states more democratic. In order to strengthen the normativebasis of such examples, James Bohmans principle of the democraticminimum provides a necessary limitation on Iris Youngs appeal to tiesof social and economic interdependence.

I Constitutional patriotism as an ideal for the European Union?

The development of Habermas mature view of European-wide consti-tutional patriotism as a response to the democratic deficit has gonethrough a series of stages in his publications on the topic. Each in aunique way demonstrates his effort to realize a system of political rightsfor the EU on the model of freedom as self-legislation through European-wide ties of solidarity. Supplying human rights with a juridical form inthis manner confers rights upon persons insofar as they are recognized

737Bowman: Challenging Habermas response


as citizens under a shared constitutional framework that they have freelychosen through acts of collective authorization. However, before givinga general outline of his publications on the democratic deficit, we mustfirst give an overview of his taxonomy of basic rights as necessary back-ground for situating constitutional patriotism in the context of hisbroader democratic theory.

His proposals for realizing basic rights through identification witha particular constitution deal explicitly with institutionalizing humanrights via a threefold taxonomy of moral, political and social rights. Onthe one hand, at the conceptual level, Habermas supports a moral,universalistic, egalitarian interpretation of human rights that have thepotential of being universally inclusive of any person bearing a humanface. On the other hand, at the practical level of the coercive meansfor realizing positively enacted political rights, he proposes a model ofconstitutional patriotism as criteria for the limited inclusion of a particu-lar body of self-legislating citizens within a single sovereign politicalcommunity closed off from interference by outsiders.1 And as additionallimiting criteria for this practical guarantee of rights within a particularcommunity, he calls for solidarity between citizens as a necessary pre-requisite. Such solidarity requires a shared political culture and theprotection of a third and final category of rights: social rights to goodsand benefits that serve as the pragmatic pay-off for political membership.

Moving then to the contributions of his proposals explicitly address-ing the deficit, one element shared in common between them for thefounding of basic rights through a constitution is the consistent attemptto guarantee the freedom and equality of those affected by its laws andpolicies through a common political identity. Another common strandto these proposals holds that liberal political rights are not enough toachieve the social solidarity of strangers required to overcome the deficit.Therefore, only a European constitution will help secure the materialconditions of life lost to the increasing predominance of global move-ments of capital.

The first stage, his Response to Dieter Grimm, follows these commonthemes. Here he addresses a crucial challenge to such European-widesolidarity: that there is no distinctly European people from which todraw upon for the exercise of an expressly European political culture.2As an initial reply, he points to the historical capacity of democraticnation-states to abstract to ever-greater levels of political inclusion undera shared system of rights and a common political culture. Drawing uponthe formation of national identities in European states, he initially seeksthe same strategy for the construction of a more expansive European-wide political identity through an explicit constitution. Institutions withthe capacity to act supranationally will allow member states to recapturethe benefits offered by the welfare state at the higher European level.

738Philosophy & Social Criticism 33 (6)


In the second stage, in Postnational Constellation, he argues thatdemocracy as collective self-legislation historically achieved by thesovereign state could realistically be extended to the supranational level.In order to make this possible, he introduces a novel institutional designfor the circular process of identity formation that was essential to consti-tutional patriotism as highlighted in the passage above. He alters hisconventional conception of a parliamentary-based common politicalculture to allow for the novel practices present in the Council of Minis-ters as a proposed second chamber of the EU legislature. He makes theseconcessions in order to construct a shared political identity out of thedeliberations that occur within the intergovernmental negotiationscharacteristic of the transnational decision-making process of the EU.3To achieve the requisite social solidarity to make this feasible, he findsthat European citizenship must pay in a currency beyond mere politi-cal rights to include the additional guarantee of social, ecological andcultural rights.4

In the third stage, in The European Nation State and the Pressuresof Globalization, he again revisits the question of institutional design.This time he emphasizes that only as a legally constituted and unifiedfederation and not merely under the above practices of inter-state nego-tiation can the EU muster the requisite political solidarity to ensure thebasic rights previously protected by the sovereign nation-state.5 Habermasstates that only as a federation could it [the European Union] summonup the political strength to decide to apply corrective measures to marketsand set up redistributive regulatory mechanisms.6 On this account, aunified European federation is the main source of the political identityand ties of solidarity necessary for democratic legislation under a Europeanconstitution. In this manner, by taking on the democratic characteristicsand functions of a federal state, the European Union can catch up withand fence in global markets to render their processes subject to greaterpolitical legitimacy.

Finally, in the last stage, in Why Europe Needs a Constitution, heattempts to balance the criteria for a legitimate EU constitution throughdemocratic legislation with a shared historical commitment to socialjustice.7 This requires him to lighten the stronger conditions for democ-racy as democratic self-rule seen in the previous proposals to a moremodest view that regards a European constitution as a way to preservea shared form of life. However, this last proposal still follows theconsistent plan of appealing to a shared European-wide political identityto legitimate an explicit constitution. This time legislative proceduresare no longer the sole source of the constructed European identity, as ashared European history of ensuring a minimal threshold of socialjustice is also included. Thus, at this final stage, his original view ofconstructing a common political identity through the abstract procedures



of democratic legislation turns into a more substantive European politi-cal identity by virtue of a shared historical experience. This common wayof life serves as the motivation for the ever more inclusive extension ofobligations of justice across member state borders and not merely viashared practices of democratic opinion- and will-formation.

In brief summation of his general view of constitutional patriotismfor the EU, while I ultimately agree with Habermas that social and politi-cal rights must be given juridical form as legal rights, I disagree with hisrestrictive portrayal of political and social solidarity for the realizationof human rights. The next section shows that this leads Habermas tostrip basic rights of their moral universality through the exclusive juris-diction of a constitution. Ultimately, this model of self-legislating auton-omy serves to undermine the moral value of the norms of equality andsolidaristic inclusion he originally sought to uphold by consistentlyappealing to an explicit constitution to expand the scope of politicalcontrol over shared European social problems. In what follows, this flawcan be traced back to the notion of freedom as self-legislation requiredfor his view of constitutional patriotism and the overly restrictive notionof political identity, solidarity and common European political culture.

I thus disagree with his response to the democratic deficit for tworelated but distinct reasons: the first is a matter of scope while the secondconcerns his view of democracy as collective willing. With respect to theformer, his depiction of the deficit proves to be too narrow, as it merelyseeks to allow citizens of member states more robust forms of politicalparticipation at the EU level, and in particular, through a strengthenedEuropean Parliament and a modified Council of Ministers. He overlooksthe more glaring and most tyrannical side of the democratic deficit: thedomination of EU citizens over non-citizens.

As for my second major disagreement with his view of facing thedeficit, his notion of transnational democracy still borrows too muchfrom the institutional heritage of collective willing from the historicalnation-state. In this respect, even his solution to the more narrow formof the democratic deficit that he proposes falls short. The recapturingof political solidarity at the European level by identification of memberstate citizens with specifically European forms of citizenship still regardscitizenship as a univocal form of political identity. However, this doesnot adequately account for the multiple forms of citizenship madepossible by the institutions of the EU. Nor does it recognize the reflex-ive processes of endogenization whereby to be a citizen of a memberstate increasingly means to be a European Union citizen and vice versa.8Therefore, instead of forming a European demos, the best way toenhance the freedom of those affected by its burgeoning number of laws,mandates and directives is to form a democracy of democracies in apolity of multiple demoi.




II Iris Youngs republican challenge to Habermasian solidarity:the fact of interdependence

Tied to the problems of scope mentioned above, Habermas proposal toface the deficit gives over too much emphasis to collective willing throughparliamentary legislation that can potentially dominate non-citizens. Thisbecomes particularly problematic when considering the lack of politicalautonomy currently experienced by European immigrants and third-country nationals that are daily affected by both EU and member statelaw and policies.

For some, the republican tradition might be the place of last resort toturn to remedy the problem of democratic self-legislation as the minimalcriterion for democracy in the EU. This would be because republicanismhas been traditionally associated with the communitarian ideals of collec-tive willing that I have so far attempted to repudiate. Although repub-licanism supports a certain idea of the person as rooted in communallife, Young expands the scope of those falling under the protection offreedom as non-domination by appealing to ties of social and economicinterdependence within a given polity instead of tying political partici-pation back to any particular locus of political identity. Therefore, IrisYoung convincingly argues that freedom as non-domination as onecharacteristic feature of republicanism can effectively protect againstthe ills of self-legislation. For her, republican freedom is not necessarilya positive communitarian conception of freedom that promotes thecollective autonomy of citizens. Instead, it is better interpreted as anegative conception as its primary feature is to circumvent politicaldomination in any form, including that faced by non-citizens.

Young effects this separation in two main ways, utilizing both a politi-cal and a moral component. First, at the political side, in contrast tocommunitarian rejections of the state, Young still preserves a very strongrole for the state. Despite the states various historical shortcomings, shefinds that it has been the most effective means to realize justice. However,on the moral side, she employs the normative standard of freedom asnon-domination as a way to criticize the most pernicious features of stateinstitutions. On this point, she mentions the potential dangers of conflat-ing political justice with the laws of the state on the grounds that itpotentially fosters the arbitrary domination of certain groups.

[I]t makes moral obligations of justice contingent on the existence of particu-lar political jurisdictions . . . [S]uch a position robs principles and practicesof justice of any moral force. They become as arbitrary as borders thathappen to be drawn, and can change as borders change. It cannot be right,however, that the scope of justice is determined by the scope of politicalinstitutions which recognize some as insiders who can make justice claimsand some as outsiders who must go to another tribunal.9



In her distinctly republican appeal to freedom as non-domination tofollow, Young argues that even the self-determining preferences of actorsand entire political institutions can be interfered with if they are foundarbitrarily to dominate others. Through the moral force of her concep-tion of freedom she retains the critical capacity to call upon politicalinstitutions to expand the scope of political justice to include the voicesof those subject to arbitrary domination.

On her republican construal of such an argument, one major formof domination is to be subject to the arbitrary will of another. In itspolitical form, this would mean the absence of participation in formu-lating laws and policies that govern ones daily affairs. Youngs notionof freedom as non-domination therefore shares with the communitar-ian tradition an emphasis on the importance of active public partici-pation. However, the default setting is not one of non-interference fromthe state or from any other group that might hinder autonomous self-determination. Interference is indeed acceptable insofar as it is not arbi-trary and tracks the interests of those most immediately affected.

For the development of such a revised conception of political partici-pation that permits interference in the sovereign jurisdiction of a consti-tution and thereby allows for the construction of more expansive boundsof democratic participation, we must turn to Youngs republican view offreedom. In advancing such a view, she initially agrees with one majoraspect of Habermas notion of constitutional patriotism: his rejection ofnationalistic affinity as the basis for mutual respect, inclusion and co-operation. However, as points of contention, she modifies his views ofsolidarity and freedom.

Habermas ideal assumes, however, an already existing jurisdiction coveredby a single set of procedures and laws. His concept does not so usefullyexplain normative groups for creating or changing jurisdictions covered byconstitutional procedures . . . [J]urisdictional boundaries are often drawnin ways that intentionally or unintentionally exclude some people affectedby actions and policies from having to be considered. Normative theoryand political practice wishing to correct this mismatch cannot rely on aconcept of solidarity based on the prior assumption of shared jurisdictionor constitution.10

As an alternative to Habermas view of freedom as the sovereign self-legislation of a political community, Young proposes her notion ofdifferentiated solidarity and freedom as non-domination. In contrast toHabermas, her conception of freedom as non-domination permits inter-ference in the legislation of a polity insofar as laws are found to subjectnon-citizens to the arbitrary whim or arbitrary good favor of thoseholding law-making power.

Youngs view of freedom as non-domination recognizes that agentsare related in a variety of ways they have not freely chosen such as


proximity, economic interaction and the unintended consequences ofindividual and collective actions.11 Her ensuing conception of solidarityweds obligations of justice not to constitutional legislation, nor to ashared history, nor to a common political culture, but instead to a viewthat obligations of justice extend as far as economic and social ties ofinterdependence. Her revised view promotes freedom as non-dominationfor all persons whose actions are assumed as premises in drawing thejurisdictional bounds of political justice even in cases where the causallinks in ties of interdependence are unintended.

Applying Youngs insights then to the transnational level, she putsthe dilemma as follows for a Habermasian-style federated proposal.Given the fact of extreme social and economic ties of interdependencein the regional economy of the EU, Habermas nevertheless construesobligations of justice exclusively in terms of the bounds of constitutionallegislation. Young disagrees with such an exclusionary strategy thatattempts to circumscribe a common political culture:

Because a people stands in interdependent relations with others, however,a people cannot ignore the claims and interests of those others when theformers actions potentially affect the latter. In so far as outsiders are affectedby the activities of a self-determining people, those others have a legitimateclaim to have their interests and needs taken into account even though theyare outside the government jurisdiction.12

On Youngs evaluation, Habermas view of the self-determination of EUcitizens holding a shared political identity is thus a violation of demo-cratic equality. It subjects outsiders to domination when affected bypolicies and regional networks of interdependence that they are not giventhe opportunity to influence. Given these basic differences concerningnorms of freedom and equality, the practical merits of Youngs develop-ment beyond Habermas can be seen most clearly in the next sectionhighlighting the inability of constitutional patriotism to integrate thoseimmigrants and permanent minorities that fall outside the legal protec-tions of a constitution.

III Practical illustration: political non-domination and EUimmigration

As a possible illustration of how Youngs more differentiated view ofpolitical solidarity could better answer the democratic deficit in theEU, we will turn to the legal status of its immigrants and permanentminorities and appeal instead to the normative ideal of freedom as non-domination.13 The application of her views to the EU in this illustrationcan better respond to at least one key feature of the deficit whereHabermas falls short: the practice of not granting a voice to the estimated



30 to 60 million immigrant laborers and permanent third-country nation-als currently resident in the EU. Youngs more extensive measures ofpolitical inclusion could give these non-citizens a say in the formationof European policies to which they are daily subjected. Her extension ofbasic political rights to broaden the meaning and terms of politicalmembership to non-citizens in the EU thus presents a diversion from theHabermasian model for facing the deficit that with its state-like qualitiesadmits difficulty in extending such rights to non-citizens.14

For example, in Habermas 1990 essay Citizenship and NationalIdentity he supports the right of European states to restrict immigrationin the event that the inclusion of immigrants is found to circumvent theestablishment of a common European-wide political culture.15 And inhis more recent 1996 essay, Struggles for Recognition in the DemocraticState, the measures for political inclusion are even more restrictive.Here he finds that republican arguments like Iris Youngs that call forassistance to immigrants by drawing from evidence of the growingregional social and economic interdependence

. . . do not, to be sure, justify giving actionable legal rights to immigrationbut they do justify a moral obligation to have a liberal immigration policythat opens ones own society to immigrants and regulates the flow of immi-gration in relation to existing capacities.16

In the end, his strict adherence to positive law and autonomous self-legislation as the juridical form for realizing his view of human rightsmust ultimately exclude some persons affected by European-wide tiesof social and economic interdependence from the protections to besecured through a European constitution. In other words, as mentionedearlier by Young, tying moral obligations to the exercise of the consti-tutional jurisdiction of a single community strips his notion of justiceof the normative scope required for a more universalistic protection ofbasic political rights.

In contrast, Youngs revised threshold of legitimacy in terms of rightsto political non-domination could counter an aspect of the democraticdeficit termed the double dilemma that is especially unique to theproblems that emerge through enhanced levels of immigration inEuropean civil society. EU legal scholar Jo Shaw describes this problem-atic political situation succinctly as follows:

This double dilemma comprises the need to reinforce democratic traditionsby including new waves of immigrants into national citizenship, at a timewhen internal solidarity is at its weakest.17

In other words, there has been a simultaneous breakdown of social andpolitical consensus internal to European nation-states along with a new



wave of immigrants that must be politically incorporated into over-burdened democratic institutions. We cannot therefore fall back on ashared political identity that has already been weakened at the nationallevel as a way to resolve the dilemma.

Instead, we can apply Youngs expanded view of differentiated soli-darity to this international dilemma posed by immigration, as a develop-ment of her prior arguments as they bear on the European context. Theprevailing ties of social and economic interdependence already presentin the EU could incorporate immigrants politically at the more encom-passing transnational level instead of drawing on an already weakenednational identity. The republican contribution here provides the neededemphasis on enhancing active forms of political participation for thosemost dominated by ties of interdependence without seeking the politicalintegration of immigrants in the collective will of any single demos.Therefore, in contrast to even the thinnest possible interpretation of thepolitical identity associated with Habermas constitutional patriotism,the rights to political participation already associated with EU citizen-ship need not be confined exclusively to citizens of member states andneed not fall under a shared form of solidarity or common Europeanpolitical culture. It is not so much a matter of how thin or thick is theidentity that is being sought, but more a question of how to create ademocracy of democracies for overlapping sites of citizenship that aredrawn instead from shared ties of social and economic interdependence.

While I agree with Habermas proposal to draw on the system ofrights already nascent in the material constitution of the EU and expli-citly formalized in the draft constitution in order to face the democraticdeficit, I disagree that this system of rights should circumscribe a singleEuropean demos. Consider instead, for example, articles 42 and 43 ofthe EU Fundamental Charter of Rights respectively that instead suggestan overlapping network of plural demoi. In addition to the extensionof such rights to EU citizens, these rights grant any natural or legalperson residing or having a registered office in a member state right ofaccess to all Union documents and the right to refer to an ombudsmanin cases of maladministration in Community institutions.

In support of my more expansive transnational construal of politi-cal rights to create a plural people of peoples or an EU democracy ofdemocracies, Youngs view of political inclusion can also be applied tothe civil society networks that allow for such political integration ofimmigrants without requiring them to assent to a common European-wide identity. In her stylized response to the aforementioned doubledilemma posed by enhanced immigration, she says

Most migrants do in fact wish to be integrated into labour markets andpolitical institutions of the societies they have joined; many, however, resist



the suggestion that they should acquire the dominant national culture andprivatize their native culture as a condition of these economic and politicalopportunities. This distinction has generated some conflict in some Europeancities.18

The historical precedent established by relevant cases already supportsher claims for a less restrictive, multi-leveled view of political member-ship for migrants that can peacefully incorporate ongoing conflict intolegal and juridical processes of reconciliation. For instance, the EuropeanCourt of Justice has already begun to defend fundamental rights ascosmopolitan human rights. While potentially cosmopolitan in scope,the normative justification of these basic rights in terms of freedom asnon-domination is essentially pragmatic, deriving its moral universalityfrom material ties of social interdependence and not by virtue of morecontested forms of shared political identity.

As specific examples, Youngs politicized protection of basic rights toself-determination grants migrants additional entitlements such as thoseexpressed in article 45 of the EU Fundamental Charter which providesthird-country nationals legally resident in any member state the Union-wide freedom of movement and residence. These rights are secured at theEU level in order to offset to the transient employment needs of trans-national corporations that stretch beyond the sovereign jurisdiction of anygiven member state. In addition, these rights guarantee residence for non-citizens without discrimination when they are forced to move between EUmember states in order to carry on employment. Fairly robust basic rightsare also protected by the European Court of Justice for foreign laborersin a growing number of EU member states that in addition to permittingsocial security benefits also allow for political representation. In somemember states these include rights to run for office in local Europeanelections without the requirement of citizenship in any member state.

Despite the growing precedent of extending more expansive socialand political rights to non-EU citizens, Habermas could pose the follow-ing challenge to Young that would question her more inclusive criteriaof social and economic interdependence for securing republican non-domination. He could appeal to his consistent response to the tensionbetween facts and norms prevalent in the constitutional state, maintain-ing that democratic self-legislation offers the most adequate normativeaccount of democracy, even considering the facts of growing multi-culturalism and increasing interdependence. In other words, withoutmore explicit legal-juridical criteria for the protection of these rights topolitical non-domination beyond social and economic interdependence,there are no compelling normative reasons for coercive institutions likethe system of European courts to protect the basic rights of immigrants.While Young has indeed expanded the scope of political inclusion,without a stronger legal-juridical basis for these rights, we are left



wondering how exactly these rights will be realized in a way that doesnot require an incredible effort of political voluntarism on the part ofEU institutions and their member states.

IV How to realize participatory rights for Europeanimmigrants? The democratic minimum and the OpenMethod of Coordination

With such growing precedent for the realization of basic rights for immi-grants mentioned above that has already been secured by the EU Charterand Court of Justice, we have at least some preliminary reasons tobelieve republican rights to political non-domination in the EU can serveas a more inclusive framework for guaranteeing the freedom and equalityof immigrants than Habermas model of freedom as autonomous self-legislation. However, without a clearer determination of Youngs non-arbitrariness criteria for securing political non-domination, we arepressed to show that her model falls to the opposite extreme, by beingtoo inclusive and too voluntaristic.

In initial reply, Young would agree, recasting the concern over thelegal-juridical scope of such rights as a question of the proper insti-tutional design for securing non-domination in the face of growing inter-dependence:

[I]n a densely interdependent world, peoples require political institutionsthat lay down procedures for co-ordinating the actions of all of them,resolving conflicts and negotiating relationships. This argument for aconcept of self-determination as relational autonomy in the context of non-domination applies as much to large nation-states as to small indigenousor ethnic groups.19

The task then of this section is to provide a non-voluntaristic basis fora European human rights policy that does not seek a uniform politicalidentity but instead balances plural sovereignties with a shared European-wide commitment to human rights. As an initial point of continuity withHabermas constitutional patriotism, my strategy will still require acommon system of basic rights. However, as a point of discontinuity,the particular realization of such rights in concrete political institutionswill come about through overlapping plural identities. In order to providesupport for such a proposal that will require some creative institutionaldesign, we will turn to novel governance mechanisms in the EuropeanUnion, and in particular, the Open Method of Coordination to provide alegal framework for the realization of the rights of immigrants in the EU.

New practices for the realization of basic rights to deliberative initi-ation in the EU are needed because currently there is no European-wide



constitutional consensus on the rights of immigrants and permanentnational minorities that have been agreed upon at the EU level.20 Indi-vidual member states have widely divergent approaches to the partici-patory rights of immigrants, permanent third-country nationals andminorities. And on the prevailing interpretations of subsidiarity, bothgroups would fall within the sovereign borders of member states underthe jurisdiction of their respective constitutional traditions that havehistorically not carried much success in integrating those that fall outsidethe majority political culture. However, the republican reinterpretationof basic rights given in the concluding examples will offer another politi-cal alternative, focusing specifically on the political incorporation ofTurkish immigrants and permanent minorities at the EU level in orderto develop a form of multicultural republicanism consistent with revi-sionist practices.

While the following sections will be mostly comprised of examplesfrom institutions and practices within the EU that meet the criteria offreedom as non-domination, we also need a more theoretically informednotion of institutional design to corroborate the account of freedom.21To achieve this broader scope of rights to equal political participation,I follow Joseph Weiler, James Bohman and Gerald Ruggie for myinterpretation of the EU as a multiperspectival polity.22 This is theanalytic prism chosen to make it intelligible as a political order by seekingto preserve rather than overcome its complex three-pillar structure.These scholars correctly acknowledge that no single all-encompassingtheory of democracy can adequately capture its diverse practices andnovel functions.23 By facilitating democratic accountability betweenplural sites of sovereignty and preserving the prevailing administrativecultures in the EU, regarding the EU as a multiperspectival polity willthus require significant modifications of the republican tradition.24

In recent work on this topic that significantly develops the republi-can tradition beyond some of the shortcomings of Youngs approach,25James Bohman argues that acts of shared participation in deliberativepractices should be taken as basic rights to political participation. Thisdemocratic norm has fittingly been termed by him the democraticminimum: the capability to initiate deliberation and thus participate indemocratic decision making processes.26 For example, in contrast toother republicans like Philip Pettit that defend accountability as theminimal threshold for democratization of transnational deliberations,Bohman shows that there is an array of cases where accountabilityconditions are met while domination still occurs. For example, inentrenched forms of majority rule, those in power might remainaccountable to the publics served through competitive elections and stilldominate permanent minorities and permanently resident third-countrynationals. Political domination could still occur under conditions of



accountability when those subjected to majoritarian decision-makingcannot exercise the capacity to bring new issues to debate and do notenjoy the capacity to amend the constitutional order.

As a way to offer some insights concerning possible ways to realizethe democratic minimum as a response to the EU democratic deficit,in continuation of the examples offered in the previous sections, I willturn almost exclusively to prevailing political practices that includeEU immigrants, third-country nationals and the minorities of memberand applicant states. The following application of the work of Bohmanon the democratic minimum shows how Youngs main methodologi-cal commitments could be rendered more consistent with transnationaldemocracy than Habermas. It is also an improvement over Young insofaras the normative relevance of social and economic ties of interdepen-dence for Bohman becomes more an issue of realizing basic democraticrights to freedom as non-domination instead of the more abstract appealto being mutually affected by shared policies.27 These examples thuspropose various ways to realize a democracy of democracies throughthis novel polity.

For example, as a concrete institutional expression of my rejectionof European-wide collective self-determination, the Forum of Migrantsin the European Union provided a means for immigrants to exerciserights of deliberative initiation to ensure freedom as non-dominationagainst racism. In effectively doling out rights to political participation,this example goes one step further than Youngs principle of all affectedby ties of interdependence insofar as the latter condition could besecured by allowing immigrants and third-country nationals forms ofparticipation without permitting them to initiate and shape the veryterms of the debate. Although the Forum of Migrants has since beendisbanded due to unresolved disputes over how the leaders of groupsrepresented should use funds, it serves as a good illustration of thenormative ideal of non-domination and for how the democratic minimumcould and should be realized institutionally:

Immigrants active in the Forum maintained that their presence in thisweb through transnational networks conferred a right to participate inshaping Europe and introduce activists to European citizenship. Fromtheir perspective, citizenship derives principally from political participationin public life.28

Such an example suggests ways to realize rights to deliberative initia-tion through the exercise of a distinctly European citizenship withoutthe requirement of citizenship in a member state of the EU. The exampletherefore differs from Habermas constitutional patriotism in that itdoes not assume a collective will of a constructed European people.Instead it incorporates the perspectives of those individuals and groups



of immigrants that for some immigrant activists constituted a 13thnation that was not adequately represented at the signing of the Maas-trict treaty.29 Immediately following the signing of Maastrict, immi-grants participating in this forum utilized these novel institutional formsto make up for any democratic deficits by initiating deliberation overways to combat racism and xenophobia within EU member statesthrough organizations at the EU level.30

In addition to these practices, there are also other innovative insti-tutions in the EU for realizing the democratic minimum for immigrantsand third-country nationals. For example, the specific contribution ofthe Open Method of Coordination (OMC) in the EU is to look to therealization of Iris Youngs republicanism at the transnational level as aparticular response to the problem of democratization posed by the EUdemocratic deficit.31 Not only does this example supply a legal-juridicalform for the realization of basic rights for immigrants in particular politi-cal communities that face shared problems, it serves to make the EU andits member states more democratic. This is achieved by promoting ashared commitment to a common EU human rights policy while alsoallowing for the realization of rights that respect broad differences inmember state political cultures.

While the OMC was a process originally inaugurated with theEuropean Employment Strategy (EES), its success in this realm has ledto experimentation in a broad array of other policy fields includingresearch and development, economic and social policy and now humanrights.32 And as an encouraging recent development to support this revi-sionist interpretation of the status of immigrant and minority rights, theaforementioned OMC is a general method for the implementation oflaws and policies in the European Union that scholars have shown hasan increasing salience to the status of participatory rights for immigrantsand permanent minorities in the EU.33

As real cases to support the possible extension of the OMC to immi-grants and permanent minorities, there is an evolving precedent of basicrights to non-discrimination and cultural diversity within most of themember states of the EU. According to the accepted procedures of theOMC, the best practices achieved by member states ensuring the rightsof their immigrants to initiate deliberation could eventually serve asbenchmarks for the European-wide implementation of the rights ofnational minorities and resident immigrants that now also fall underarticles 21 and 22 of the EU Fundamental Charter.34 And although thefederated scope and extent of such targets would have to proceed on anexperimental basis, the European Convention of Human Rights alreadyentitles foreigners without nationality of any EU member state to appealto the European Court of the Rights of Man and the EU Court of Justicefor the ongoing juridical recognition of rights.35




Minority rights to deliberative initiation would be multi-faceted inthat they receive their expression in different member state legal andinstitutional sites in ways that circumvent traditional views of politicalmembership secured by abstracting from cultural particularity.36 In adistinctly republican guise, employing a principle of effective partici-pation as a monitoring benchmark for meeting the democratic minimumcould also protect the rights of minorities if they were denied a minimaldegree of representation in the legislature by the majority in power. Insuch cases, the right of minorities to initiate debate overrides the majori-tarian will of the people specifically when their power is found to bearbitrary and foster political domination.37

In an effort to give a democratic realization of these rights, they arenot merely legal-juridical. Turkish minority groups in the EU have drawnon both formal legal institutions and the emerging institutions of civilsociety to organize politically European-wide. Rather than promotingrelations of non-interference in the self-legislating autonomy of themajority political culture, Turkish minorities defend rights to initiatedebate by refusing to remain unrecognized by member state politicalcultures. Instead, they seek political recognition in different memberstates in distinct ways that institutionalize forms of democratic partici-pation through the distinct legal cultures of each member state.

For example, in France, in light of its secular republican tradition,Turkish minorities there seek enhanced rights to religious expression fora more multicultural rendition of republicanism.38 And in a different claimto rights to political non-domination, in Germany, in light of its historicalties between nationality and citizenship rights, Turks seek rights to dualcitizenship.39 Finally, as a more lucid illustration of rights to deliberativeinitiation with respect to its own treatment of its minorities, althoughTurkey is currently a mere applicant state to the EU, a 1998 judgment ofthe European Court recently upheld the right of the minority SocialistParty in Turkey to the freedom of association as ensured by the EuropeanHuman Rights Convention.40 This overturned the prior judgment of theTurkish Constitutional Court that found the Socialist, Kurdish-leaningparty to be acting contrary to Turkish constitutional tradition by callingfor the radical transformation of Turkey into a federal state.

Such ongoing monitoring of Turkish practices by the formalprocedures of the European Court and the more informal European-widemobilization of Turkish immigrants residing in EU member states hasled to the initiation of the first-ever public debates in Turkey concern-ing the status of its minorities in light of possible EU membership. Theseexamples thus serve to show that in contrast to the assumed preferencefor the local in some more conventional federal responses to the demo-cratic deficit that appeal to subsidiarity,41 EU-level institutions can insome instances encourage member states and applicant states to realize



human rights better and when fostering the enhanced participation ofdiverse political programs also make these states more democratic.42

V Conclusion

The various examples of the republican realization of human rights aremade possible when minority rights, religious and cultural freedoms caninfluence a number of levels and apply to dominated groups that extendacross national borders. These legal spheres emerge neither exclusivelyat the national nor the supranational level but rather come aboutthrough both, taken in concert. On the one hand, they emerge throughmember and applicant state institutions, and the other hand, they arealso realized only by virtue of appeal to rights to deliberative initiationembodied in the EU Fundamental Charter and the European Conven-tion on Human Rights. Rights to effective political participation fromminorities can therefore derive from an array of monitoring institutionsthat include the Commission, member states, EU-level courts and trans-national migrant groups in various European public spheres. Suchpermanent monitoring practices would thereby foster opportunities forthe pragmatic formulation of new spheres of legal activity to socializeexcluded individuals into rights-promoting institutions from an array ofpossible levels in accord with modes of integration characteristic ofrepublican freedom as non-domination.

In broad summation, I have sought to democratize the transnationallaw and policy of the EU in conformity with the republican proposalsfor equality and inclusion set forth by Iris Young. However, her proposalerred on the end of being too inclusive, since diverse forms of member-ship cannot grant rights to political self-determination to all those parti-cipating in its economic and social networks. By virtue of appeal toBohmans democratic minimum, her view can be circumscribed to applyto those immigrants, permanent minorities and third-country nationalspolitically dominated by not being granted basic rights to deliberativeinitiation. Therefore, even those immigrants affected by EU law andpolicy that cannot currently claim EU citizenship rights must still be ableto expand the system of rights to accommodate their multiple forms ofpolitical identity when arbitrarily dominated by ties of interdependence.In the end, such a model thus offers an alternative to HabermasEuropean-wide constitutional patriotism that is more attuned to thepervasive ties of interdependence that will only grow as shared socialproblems continue to defy the limits of conventional geographic, nationaland constitutional jurisdictions.

Department of Philosophy, St Louis University, St Louis, MO, USA

PSC



Notes

I am grateful to James Bohman for his ongoing help and advice on this researchproject. I would also like to thank Bill Rehg and Michael Barber for theirsuggestions for revision and James Swindal for his continual encouragement.Finally, I am indebted to audiences at Saint Louis University and the 2004Montreal Critical Theory Roundtable for their invaluable feedback and chal-lenging questions.

1 Jrgen Habermas, Kants Perpetual Peace, in The Inclusion of the Other:Studies in Political Theory, ed. Ciarin Cronin and Pablo de Greiff(Cambridge, MA: MIT Press, 1998), pp. 165202. See in particularfootnote 62, p. 286, which reads: The implications of the rights to politicalparticipation for human rights are such that everyone has at any rate theright to belong to one political community as a citizen (original emphases).

2 Jrgen Habermas, Does Europe Need a Constitution? Response to DieterGrimm, in The Inclusion of the Other, pp. 15561.

3 Jrgen Habermas, The Postnational Constellation and the Future ofDemocracy, in Max Pensky, The Postnational Constellation: PoliticalEssays, trans. M. Pensky (Cambridge, MA: MIT Press, 2001), pp. 58112.

4 ibid., p. 77.5 Jrgen Habermas, The European Nation-State and the Pressures of Globaliz-

ation, New Left Review 235 (1999): 4654.6 Habermas, Postnational Constellation, pp. 556.7 Jrgen Habermas, Why Europe Needs a Constitution, New Left Review

11 (2001): 526.8 John G. Ruggie, Constructing the World Polity (London: Routledge, 1996),

p. 195.9 Iris Young, Inclusion and Democracy (Oxford: Oxford University Press,

2000), p. 239.10 ibid., p. 222. See in particular footnote 39.11 ibid., p. 258.12 ibid., p. 259.13 This view of rights is close to Habermas own position: the standards of

human rights stem less from the particular cultural background of Westerncivilization than from the attempt to answer specific challenges posed bya social modernity that has in the meantime covered the globe (121).Habermas, Remarks on Legitimation through Human Rights, in Post-national Constellation, pp. 11329.

14 Young, Inclusion and Democracy, p. 265.15 Jrgen Habermas, Citizenship and National Identity, first published as a

monograph, Staatsbrgerschaft und nationale Identitt. berlegungen zureuropischen Zukunft (St Gallen: Erker-Verlag 1991), p. 514. Reprintedin Jrgen Habermas, Between Facts and Norms, trans. W. Rehg (Cambridge,MA: MIT Press, 1998), pp. 491515.

16 Jrgen Habermas, Struggles for Recognition in the Democratic State, inThe Inclusion of the Other, p. 231 (pp. 20336).

17 Jo Shaw, The Interpretation of European Union Citizenship, p. 317. TheModern Law Review 61 (1998): 293317.



18 Young, Inclusion and Democracy, p. 219.19 ibid., p. 260.20 Will Kymlicka, The Evolving Basis of European Norms of Minority

Rights: Rights to Culture, Participation, and Autonomy, in J. McGarryand M. Keating (eds) European Integration and the Nationalities Question(London: Routledge, 2006), pp. 3563.

21 Jonathan Bowman, The European Union Democratic Deficit: Federalists,Skeptics, and Revisionists, European Journal of Political Theory 5(2)(2006): 191212.

22 For the first discussion of the EU as a multiperspectival polity, see John G.Ruggie, Constructing the World Polity: Essays on International Institution-alization (London: Routledge, 1998).

23 Joseph Weiler, European Democracy and Its Critics: Polity and System, inThe Constitution of Europe (Cambridge: Cambridge University Press, 1999),pp. 26485. While Weiler does not use the term multiperspectival, herefuses to follow federalists or Euro-skeptics in their unitarian and mono-lithic approaches to settling upon a theoretical framework for assessingthe democratic qualities of the EU. Due to the three-pillar structure of theEU, Weiler opts instead to speak in terms of three interspersed modes ofgovernance: international, supranational and infranational; ibid., p. 271.

24 See, for example, Kostas A. Lavdas, Republican Europe and MulticulturalCitizenship, Politics 21(1) (2001): 110. John Schwarzmantel, Citizenshipand Identity: Towards a New Republic (London: Routledge, 2003). For amulticultural approach to republicanism with France as the model, see JeremyJennings, Citizenship, Republicanism and Multiculturalism in Contempor-ary France, British Journal of Political Science 30 (2000): 57598.

25 James Bohman, Decentering Democracy: Inclusion and Transformation inComplex Societies, in The Good Society 13(2) (2004): 4955.

26 James Bohman, Democracy Across Borders: From Demos to Demoi(Cambridge, MA: MIT Press, 2007).

27 Bohman, Decentering Democracy, p. 51.28 Rika Kastoryano, Transnational Networks and Political Participation: The

Place of Immigrants in the European Union, in Mabel Berezin and MartinSchain (eds) Europe Without Borders: Remapping Territory, Citizenship, andIdentity in a Transnational Age (Baltimore, MD: Johns Hopkins UniversityPress, 2003), pp. 767 (6485).

29 ibid., p. 66.30 ibid., pp. 6970.31 Under the OMC, the European Commission, the main regulatory body in

the EU, usually employs the research of experts in its committee system tocompare the policies of member states in a given field. Member states areencouraged to provide National Action Plans (NAPs) in meeting a particu-lar policy goal and these are overseen by the commission in the implemen-tation process. Experimental pilot programs are also developed andsometimes funded at the EU level in order to find the best policies thatmember states employ to face a given policy dilemma. Best practices thenare established as targets for other member states either to meet or to surpassthrough means that still respect broad differences between the variousadministrative cultures present in the EU.


32 Nick Bernard, A New Governance Approach to Economic, Social, andCultural Rights in the EU, in T. K. Hervey and J. Kenner (eds) Economicand Social Rights under the Fundamental Charter of Social Rights of theEuropean Union (Oxford: Hart Publishing, 2003), pp. 24768. Olivier deSchutter, The Implementation of Fundamental Rights through the OpenMethod of Coordination, in Olivier de Schutter and Simon Deakin (eds)Social Rights and Market Forces: Is the Open Method of Coordination ofEmployment and Social Policies the Future of Social Europe? (Brussels:Bruylant, forthcoming).

33 See Alexander Caviedes, The Open Method of Coordination in ImmigrationPolicy: A Tool for Prying Open Fortress Europe?, Journal of Public Policy11(2) (2004): 289310. For a good discussion of minority rights and theOMC, see Guido Schwellnus Much Ado about Nothing? Minority Protec-tion and the EU Charter of Fundamental Rights, in Constitutionalism Web-Papers: ConWEB No. 5/2001, available at: http://les1.amn.ac.uk/ conweb/

34 However, due primarily to the relative success of the OMC in other policyfields, presently the member states of the EU are reluctant to follow therecent recommendations of the commission to subject immigration policyto the OMC. Caviedes, Open Method of Coordination.

35 Joseph Weiler, points to the case of Gayusuz v. Austria that went to theEuropean Court of Human Rights and led to the extension of social securitybenefits to third-country nationals (p. 719). An Ever Closer Union inNeed of a Human Rights Policy, European Journal of International Law9 (1998): 658723.

36 Jeremy Jennings, Citizenship, Republicanism and Multiculturalism inContemporary France, British Journal of Political Science 30 (2000):57598.

37 Philip Pettit, Republicanism (Oxford: Oxford University Press, 1997), p. 180.38 Jennings, Citizenship, Republicanism and Multiculturalism, pp. 5934.39 Rika Kastoryano, Citizenship: Beyond Blood and Soil, in Mohsen-Finan

Leveau and Wihtol de Wenden (eds) New European Identity and Citizen-ship (Burlington, VT: Ashgate Publishing, 2002), pp. 10116.

40 Bruno de Witte, Politics versus Law in the EUs Approach to Minorities,in Jan Zielonka (ed.) Europe Unbound: Enlarging and Reshaping theBoundaries of the European Union (London: Routledge, 2002), p. 145(pp. 13760).

41 For such approaches to the democratic deficit, see Andreas Follesdal,Subsidiarity and Democratic Deliberation, in Erik Eriksen and John Fossum(eds) Democracy in the European Union Integration through Deliberation?(London: Routledge, 2000), pp. 85110. See also Andreas Follesdal,Survey Article: Subsidiarity, Journal of Political Philosophy 6(2) (1998a):190219. Neil MacCormick, Democracy, Subsidiarity, and Citizenship inthe European Commonwealth, Law and Philosophy 16 (1997): 33156.

42 Bruno de Witte, in Politics versus Law in the EUs Approach to Minoritiesemphasizes that this was precisely the justification of the judgment given bythe European Court which found that It is of the essence of democracy toallow diverse political programs to be proposed and debated, provided thatthey do not harm democracy itself (p. 145).



philosophy social criticism 2007 bowman 736 55

Documents