The European Social Contract and the European Public Sphere

Abstract:  The possible existence of a European democracy does not depend on the prerequisite of a homogeneous public sphere but on the understanding of the relationship between the normative basis of a European democracy—here a social contract—the structure of the European public sphere and the corresponding institutions. The normative concept of democracy as expressed in social contract theory is neither bound to the city-state nor the nation-state, but can be transferred to the European level. To realise the normative aims of the social contract the democratic institutions have to be—and were in the city—and the nation state—adapted to the structure of the respective public sphere. Two institutional characteristics of the democratic European polity could correspond to the heterogeneous European public sphere: (1) a cooperation of institutions with clearly separated and limited competences—contrary to the ideal-type sovereign institutions with broad competences in the nation-state, and (2) the policy field-oriented structure—contrary to the more uniform and functional structure of democratic institutions in the nation states.     

The Way We Do Europe: Subsidiarity and the Substantive Democratic Deficit

The new institutional framework of subsidiarity is expected to lower the EU democratic deficit. In contrast to this optimistic scenario, I argue that the success of subsidiarity depends on its capacity to unravel the EU's ‘substantive’ democratic deficit. Linked to the Union's functionalist institutional design, this dimension of the democratic deficit has developed due to two limitations of EU‐level politics. First, the EU functionalist design has narrowed the range of topics open to democratic debate (horizontal substantive democratic deficit). Second, the proportion of the debate which we could genuinely describe as being political is declining as a result of the de‐politicisation of EU goals, underpinned by a massive accumulation of allegedly apolitical expert knowledge (vertical substantive democratic deficit). Against this background, I contend that by involving actors relatively alien to the EU functionalist thinking, subsidiarity could offer an opportune ground for the re‐politicisation of democratic ‘blind spots’ in EU policy making.     

The Constitution of a European Democracy and the Role of the Nation State

Starting from the presupposition that European democracy is necessary to the survival and development of the European Union, the author deals with the process which may entail a European constitution, and discusses the elements of the present legal structure of the EU which are conducive to a European Democracy. In particular, the author focuses on the incomplete, polycentric, and dynamic character of a possible EC/EU constitution, and on the duality of its legitimating principle. This claim is that these characteristics necessitate some institutional modifications of democratic principles if compared with national democracy, and that Euro-democracy is possible if we do not simply apply the standards of democracy valid for Member States, but succeed in developing criteria which are adequate to the institutional qualities of the EC/EU. Finally, the author maintains the legal character of the regulatory power of the Community, and invokes the mutual legal bonds linking the Member States and their peoples as the source of the Community.     

Democracy: A Convergent Value? Comments on Sheldon Leader and Ernesto Garzón Valdés

In this paper, the author contends that Leader's attempt to ground the value of toleration on a common understanding of democracy faces a number of fundamental obstacles. Such obstacles could only be overcome if both liberals and their opponents were to reach an agreement on the value of democracy and thereby converge in their support of toleration. The author shows that far from providing a common ground that liberals and their opponents can share, the so-called "shareable understanding" of democracy appeals primarily to liberals. The author also argues that Garzón Valdés's thesis that democracy is the system best suited to the flourishing of toleration faces the same kind of difficulty, namely, that not every group in a liberal constitutional regime can be convinced of the priority of democratic principles over their other fundamental value-commitments.     

违宪审查的民主正当性问题

违宪审查制度起源于普通法传统,由于它的实质在于非民主的法官对于民意机关所制定法律的审查。因此,它从一开始就受到民主观念的有力抵制。许多国家因而长期排斥这一制度。经过二个多世纪的较量,如今违宪审查制度已经成为民主制度的核心制度、甚至是标志性的制度。在民主发展过程及违宪审查制度普及过程中,人们对民主的核心观念进行了创新。人们以种种方式摒弃了将民主理解为"单一权力主体"的传统民主观,使民主与违宪审查制度相容。他们有的采用"合伙制"主体民主观,或者采用"实体价值"而非权力主体的民主观,或者采取程序民主、协商民主、规范民主、结构民主等等,这些民主观从不同的侧面论证了违宪审查制度的民主正当性。与此同时,种种为违宪审查制度正当性辩护的社会、法律理论也频频出现,它们都为违宪审查制度的普及作出了贡献。     

投资者革命、股东积极主义与公司法的结构性变革

投资者革命和股东积极主义不仅重塑了公司法的制度环境,而且催醒了股东民主意识,使公司法的传统制度安排面临挑战。为顺应时代发展潮流和强化公司法的时代适应性品格,我国应当大力发展机构投资者并将其吸收到公司治理当中,鼓励和引导网络环境下的股东积极主义行为,进一步弘扬股东民主和股东主权理念,加强和改善机构投资者的公司治理,不断强化其外部监管。     

Bringing European Democracy Back In—Or How to Read the German Constitutional Court's Lisbon Treaty Ruling

This article critically examines the democratic theory that informs the German Federal Constitutional Court's Lisbon Treaty ruling. This is needed because the ruling is ambiguous with regard to which type of democracy applies to which type of Union. In order to analyse the ruling we establish three models of what European democracy possibly can amount to: audit democracy based on the EU as a derivative of the Member States; a multinational federal state; or a regional cosmopolitan polity? The court's depiction of the EU does not fit as well as we would expect when labeled as a derivative entity due to the important legislative role of the European Parliament. The EU's legal supranationalism points in the direction of a federation, but the court's argumentation does not lend support to this notion. The court models democracy on a rather specific set of institutional presuppositions that are derived from the parliamentary model of democracy associated with the sovereign nation state. At the same time, the court operates with a conception of a changing state sovereignty that unfolds more in line with cosmopolitan rather than with classical Westphalian statist principles.     

Information and Human Liberty

Abstract. Political and juristic enquiry must be conceived of as an action theoretical approach. On the basis of his formal and finalistic action theory as well as his neo-institutionalist view, the author sketches the role of information in modern democracy. He holds the view that democratic institutions are always in danger of being misused. The complex role of mass media, party propaganda and the detrimental effects of state propaganda are analyzed. The author deals with some general features of information processes in the realm of political practice: Information has to be considered in relation to action; the message by itself does not show whether the information is true; there are two forms of reception of information, active and passive reception. Information processes have a deep influence on personal as well as on political liberty. The intrusion of marketing-methods of propaganda in political practice is a great danger for democratic life, particularly if realized by the state or central institutions. It can destroy intellectual freedom, which is a prerequisite of discursive democracy. Democracy and human liberty can flourish only in an open society.     

论宪法之代议制度原则

从分析宪法原理和各国民主政治制度的实践出发 ,指出代议制度应是宪法的基本原则 ,因为人民主权原则只是解决了主权的归属问题 ,并未说明民主的实现方式。在当代各国 ,基本采用代议(代表 )制的形式来实现民主 ,并且以不同的形式体现在宪法之中 ,政治体制的确立、国家机构的组成同代议 (代表 )制度原则密切联系。依据历史进程 ,对代议制度原则的内涵进行了深入的分析。各国宪法对代议制度的体现方式是各异的 ,这是由各国的国情所决定的 ,在此基础上 ,对代议制度原则进行了深入的评析     

哈贝马斯的合法性理论中的现代性

本文对哈贝马斯的合法性理论进行了分析和检测 ,指出了其与自由民主秩序的内在关联。在深入分析了合法性证明水平的现代性蕴涵及哈耶克的知识观后认为 ,宗教对自由民主秩序的形成及合法性的证明仍有积极的功能和实质的意义 ,自发 (自由民主 )秩序的内在规则的正当性先于交往对话而存在 ,哈贝马斯提出的交往对话的形式条件无法承当合法性证明的重负     

Transitional Justice and the Quest for Democracy: A Contribution to a Political Theory of Democratic Transformations

The paper seeks to contribute to the transitional justice literature by overcoming the Democracy v. Justice debate. This debate is normatively implausible and prudentially self‐defeating. Normatively, transitional justice will be conceptualised as an imperative of democratic equal concern. Prudentially, it can prevent further violence and provide an opportunity for initiating processes of democratic emotional socialisation. The resentment and indignation animating transitions should be acknowledged as markers of a sense of justice. As such, they can help the reproduction of democracy. However, their public expression must be institutionally filtered through democratic norms. The consistent institutional instantiation of equal respect can educate and recuperate negative emotions for democracy.     

Constitutional democracy and the legitimacy of judicial review

It has long been argued that the institution of judicial review is incompatible with democratic institutions. This criticism usually relies on a procedural conception of democracy, according to which democracy is essentially a form of government defined by equal political rights and majority rule. I argue that if we see democracy not just as a form of government, but more basically as a form of sovereignty, then there is a way to conceive of judicial review as a legitimate democratic institution. The conception of democracy that stems from the social contract tradition of Locke, Rousseau, Kant and Rawls, is based in an ideal of the equality, independence, and original political jurisdiction of all citizens. Certain equal basic rights, in addition to equal political rights, are a part of democratic sovereignty. In exercising their constituent power at the level of constitutional choice, free and equal persons could choose judicial review as one of the constitutional mechanisms for protecting their equal basic rights. As such, judicial review can be seen as a kind of shared precommitment by sovereign citizens to maintaining their equal status in the exercise of their political rights in ordinary legislative procedures. I discuss the conditions under which judicial review is appropriate in a constitutional democracy. This argument is contrasted with Hamilton's traditional argument for judicial review, based in separation of powers and the nature of judicial authority. I conclude with some remarks on the consequences for constitutional interpretation.I am indebted to John Rawls and Burton Dreben for their helpful advice and their comments on an earlier draft of this paper.     

The Institutionalised Participation of Management and Labour in the Legislative Activities of the European Community: A Challenge to the Principle of Democracy under Community Law

The legislative procedure established by Articles 138-139 of the Amsterdam Treaty is sensitive with regard to democratic prerequisites, but does not, in the final analysis, breach the formal principle of democracy established under Community law. Although the establishment of a parliamentary right of consultation is desirable, sufficient democratic legitimation is nonetheless supplied by virtue of Council and Commission participation within the legislative procedure and by their unlimited right to examine and reject substantive provisions designed by management and labour. By the same measure, the participation of management and labour in the Articles 138-139 legislative process is not of itself sufficient to create democratic legitimation. However, although management and labour organisations might never claim to represent the public of Europe as a whole, they can contribute to the 'substantive' legitimacy of European social law-making where they are adequately representative of persons and groups affected by EC legislative acts and take positive steps to ensure that the interests of such persons are reflected in secondary EC law. Accordingly, the Commission and the Council should review the representative nature of organisations engaged in European social law-making, paying particular attention to under-represented interests and, if necessary, should also make use of their right of rejection where privately negotiated agreements neglect these interests.     

Representation in multilateral democracy: How to represent individuals in the EU while guaranteeing the mutual recognition of peoples

The democratic criteria for representation in the European Union are complex since its representation involves several delegation mechanisms and institutions. This paper develops institutional design principles for the representation of peoples and individuals and suggests reform options of the European Union on the basis of the theory of multilateral democracy. In particular, it addresses how the equality of individuals can be realised in EU representation while guaranteeing the mutual recognition of peoples. Unlike strict intergovernmental institutions, the EU requires an additional and independent legislative chamber in which individuals are directly represented. However, strict equality of individuals cannot be the guiding principle for this chamber. In order to avoid the overruling of peoples through supranational majorities, it is necessary to bind the chamber's composition by a principle of degressive proportionality. The representation of peoples, on the other hand, needs to be connected to their domestic democratic institutions.     

The Epistemological Moral Relevance of Democracy*

Abstract. The author deals with one aspect of the justification of governmental action and its product (the law). He focuses on the authoritative character of legal rule, analyzing the apparent capacity of governments to produce reasons for action not grounded on substantive moral considerations. The assumption of that capacity seems necessary in order to establish a general moral obligation to obey a government irrespective of the actions required. This question is faced in connection with the thesis that only a particular form of government, democracy, is morally justified insofar as it rests on legal rules issued by a legitimate source.     

一个“强化民主”的司法审查理论——对《民主与不信任》的再解读

在《民主与不信任》一书中,伊利试图通过建构一个非但不与民主相冲突,而且还促进和强化民主的一个司法审查理论,来回应司法审查不民主的质疑。伊利主张:在政府失灵,即代议程序不值得信任之时,法院在司法审查中应当积极介入;疏通政治变革的渠道,以及纠正对少数人的某些歧视,是法院的应有职能;多数人决定与少数人保护,是民主原理的内在组成部分。伊利借助于代表理论,"尊重多数人"和"保护少数人"这两项要求有机地统一在一起。对掌权者不信任的逻辑,贯穿于伊利的司法审查理论。伊利通过程序论,建构了一个比较融贯的司法审查理论,不过,却不能使宪法裁判免于价值判断。     

Back to Basics: A Theory of the Emergence of Institutional Facts

In order to account for the mode of existence of social rules and norms, the author develops a theory of the emergence of institutional facts. Just as other kinds of institutional fact, rules and norms are meanings. Therefore, insight into the emergence of social rules and norms can be achieved by studying the recognition and the communication of meanings. Following accounts of meaning and factuality, institutional facts are characterized as unquestionable shared typifications. It is argued that, in becoming an institutional fact, a typification goes through two phases. First, it becomes a social habit. Second, this habit turns into an obligation by being objectified.     

A Formal Theory of the Rule of Law*

Abstract
The author presents a relatively formal theory of the rule of law which includes three basic components: conceptual, institutional and axiological. He then emphasizes the differences between a formal and a substantive theory of the rule of law and highlights the advantages and limits of the former. Finally, the author indicates the importance of this type of theory, namely the values it implies such as predictability, justified reliance, autonomous choice, minimization of disputes and legitimacy.**     

Habermas on Democracy and Justice. Limits of a Sound Conception

Abstract . The author outlines limitations of the explanation capacity of Habermas's Discourse Philosophy, because of its problematic presuppositions. The main topics discussed are: (i) the legitimacy of legal systems; (ii) Habermas's concept of democracy; (iii) his theory of justice. Legitimacy cannot be based only on discourse processes, but it has to be defined by international law. Discourses in society are essential for democratic systems, but the discourses by themselves do not guarantee the optimal result as discourses may be disturbed by deceptive propaganda, by prejudices or by wrong political slogans. It is not convincing that discourse procedures guarantee impartiality and justice nor that in discourses better arguments always prevail.     

Stuntman for the State: Loughlin's Idea of Public Law

Abstract. This paper provides a critical analysis of Martin Loughlin's pure theory of public law as developed in his more recent work. I argue that the pure theory makes a series of errors and rests on a set of assumptions that make it inappropriate to provide the legal framework for any social‐democratic polity. Specifically, the theory concedes too much latitude to the functional needs of the state and organised politics, and pays too little deference to processes of political opinion and will formation in civil society. As such, it only succeeds in establishing law's connection to the public realm, at the cost of effacing its internal relationship to the rule of law and democracy.