of Deliberative Supranationalism in the EU*
Erik O. Eriksen
ARENA, University of Oslo
The democratic deficit of the EU, it is often
contended, is due to the lack of European political
parties, representative accountability and a properly
functioning public sphere. However, it may be argued that
the underlying evaluative scheme which this diagnosis
rests on, is based either on liberal aggregative or
civic-republican assumptions about democracy. These
perspectives offer a pessimistic assessment of the EU
project and one that is premised on an overly confined
notion of legitimacy. In this paper I try to show that
discourse theory represents a promising theoretical
alternative to liberal and republican theories of
democracy and the standards associated with these because
it conceives of the public sphere as a pluralistic
institution for opinion formation and conceives of
representative bodies not only as bargaining 'markets'
but also as deliberating 'fora'
Part I. Introduction
The EU is a supranational construction that is
demanding both in descriptive and normative terms. It is
a complex network of institutions for regulating common
affairs, but it is not unitary and self-contained as a
political unit. Even if its institutional structuring
resembles a separation of powers, akin to the separation
of power in a nation state, there are profound
differences. The Council of the Union consists of
representatives from the member states, and legislates on
behalf of the Union. It decides some matters by qualified
majority but most by unanimity. The European Parliament
which is directly-elected by the peoples of the member
states, have not until recently had much legislative
power. Nor has it had much authority to hold the
executive accountable. However, Treaty of Amsterdam
(1997) increased its role. The European Commission is the
executor of Union policies and is endowed with the right
of initiative, which includes the right to issue
legislative proposals. In addition, hundreds of
Committees, which were originally constructed to control
delegation of powers from the Council to the Commission,
are in operation. Such a system may blur the
constitutional distinction between legislative and
executive powers, between politics and administration.
What is the European union, then? It is not a state
based on a common identity, a fixed territory and an
established demos, nor is it a loosely coupled system of
allies who cooperate on the basis of mutual interest. The
EU involves a lot more than international cooperation,
meaning cooperation among states, but it is not a new
state. The Community has no territory of its own, no
taxing power no independent economic basis and it depends
on Member States for implementation of its various
legislative and other measures. It is not a body of
organized citizens - the citizens' access to the system
of government is mainly indirect, and "... there is
no single polity which sets the standards of political
behavior" (Preuss 1996a:215). There is a lot of
discussion on the nature of the EU, such as what kind of
organization it is, whether it is democratic
or technocratic, whether it is moving towards a more firm
supranational type of entity, and whether or not it
should develop into a federal type of entity. The main
problem that sparks frustration has to do with its
presumed lack of democratic legitimacy.  People are expected
to obey laws they themselves or their representatives
have not authored. How is the popular will(s) reflected
in the EU's political institutions and how can popular
opinion be brought to bear upon the decision makers?
Without a uniform public sphere of opinion formation and
without influence on decision- and lawmaking via elected
representatives, the chain of democratic legitimation
through citizens' consent is rather long and weak: Only
indirectly through elected Member State representatives
in the Council do the voters actually wield influence on
political decision making. In addition to an
expert-dominated legislative process, the strong position
of courts indicates a shifting balance of power in favor
of law and administration. The prospects for popular
governance seem rather bleak, indeed.
Many students of the EU, then, have suggested that we
need to conceive of the Union as merely a functional
arrangement which is to be assessed in accordance with
efficiency standards. It is established and prevails
because it guarantees market stability.
"After all, it was the presumed superiority of
the Community's problem-solving capacity over those of
the traditional nation-states which largely motivated the
foundation of the Community in the fifties. In other
words, reasons of efficiency and utility belong to the
most significant founding rationales of the
community" (Preuss 1997:219).
Consequently, one way of assessing the EU is as a
functional organization directed towards realizing
collective goals as efficiently as possible. However,
this should not akin to saying that the EU is merely an
economic association or a system of inter-governmental
cooperation based on the self-interest of each member
state. The notion of utility calculus as the basis of
legitimacy is problematic, for conceptual and empirical
reasons. First, such an order will be unstable because
actors opt out of cooperation whenever they face a better
offer (cp. Olson 1965). Second, it is not compatible with
the fact that the EU takes decisions on a whole range of matters that are clearly beyond the
functional interests of the member states. The EU makes
binding decisions on social and cultural matters. It is
also widely held that the EU is involved in a
constitution-building process and this process has
already produced a Union citizenship.  In no other
international organization do we find such effective
implementation of laws as in the European community where
a recognized Court of Justice to adjudicate disputes
(Keohane and Hoffman 1991:11). This ability is due to the
doctrine of direct effect which positions laws
enacted in Brussels as if they were enacted by national
parliaments and the doctrine of supremacy which
abeit this still a contentious issue - can be said to
give the Court the "Kompetenz-Kompetenz", i.e.
the competence to increase its own competence (Weiler
1994:514). Lastly, the Treaty of Amsterdam is held to
bring EU one further step ahead as a polity, by enhancing
the democratic quality of the EU, through somewhat
strengthening its accountability and legitimacy:
"The opening section of the Treaty builds on the
Treaty of Maastricht which strengthened the non-economic
character of the Union's Constitution. The Treaty of
Amsterdam underlines, in a number of different ways, the
fact that the Union qua Union is a community of shared
values. Article F(1) states that the Union is founded on
'the principles of liberty, democracy, respect for human
rights and fundamental freedoms, rule of law, principles
which are common to Member States'. This is followed by a
provision for dealing with a 'serious and persistent
breach by Member State of the principles' outlined in
Article Fa(1) of the Treaty" (Laffan 1997:14).
The EU is therefore a far-reaching polity, in
territorial, functional and legal terms. Its depth and
breadth, and its ability to act on several dimensions
become quite incomprehensible from the reference point of
a economic notion of democratic legitimacy. The EU's
strive for openness, the strengthening of the Parliament,
the status of the European Court of Justice, the
forthcoming enlargement of the Union and its stand on
human (and social) rights indicate that a broader sets of
assessment criteria are required. These cases concern
both questions of identity - who are we? - and questions
of justice in a genuine moral sense, as both Member
States' and citizens' interests are affected profoundly
by decision making activity of the EU. To understand and
assess the EU, then, requires a conception of
legitimation that extends well beyond that provided by
economic calculus. Democracy, i.e., procedures based on
deontological norms, is needed in order to make
justifiable decisions when collective choices will
interfere with or interrupt established interests and
identity-based concerns. That is, to validate moral and
ethical norms a popular-democratic concept of
legitimation is needed, because only affected parties can
decide what is fair treatment of equal and unequal cases,
what is in the public interest, and what is the common
I would like to address the prospects for such a
concept of legitimacy from a discourse-theoretical
deliberative perspective on democracy, because the
prevailing view of the democratic deficit of the EU is
founded on a set of - whether implicitly or explicitly
stated - assessment standards. The prevailing judgment of
democratic deficit (which is said to be due to lack of a
public sphere, lack of European political parties and
lack of voter influence through representative bodies),
can be questioned by spelling out the evaluative
standards that inform such a diagnosis. In particular, to
conceptualize democratic legitimacy, the deliberative
perspective emphasizes arguing and deliberative quality
over and above interest representation, bargaining and
voting procedures. Applied to the EU, the appropriate
starting point in such an endeavor could be to look at
the notion of the public sphere, the role of
parliamentary discourse and negotiations in the committee
system. I will start by providing a short outline of the
discourse theoretical perspective.
Part II. From adversary to deliberative democracy
Problems of realism
The conventional criticism leveled against the EU is
generally informed by a realist view of politics, i.e.,
politics as struggles over outcomes: what is in it for
me? Resource allocation - the distributive aspects - are
in focus: who gets what, how and when? In this
perspective, democracy is understood as method of
decision making or a system for preference aggregation: A
collective decision is just when it emanates from the
aggregation of peoples' preferences through fair
procedures. Realists or protagonists of the economic
theory of democracy and of elitism and pluralism, rely on
egoistic assumptions about human nature. They understand
advanced industrial societies as conflict-ridden
(Schumpeter 1942), and as "... inherently
pluralistic and diverse" (Crick 1962).
Decision-making refers to a mode of interaction in which
private interests bargain with each other over how to
maximize their own interest or given preferences. The
only agreement needed in these kinds of cooperative
undertakings is that on procedure, or the rules of the
game. Consensus on the formal rules applied - in
particular the principle of majority vote - is
required to accomplish collective decision-making.
Consensus on these rules is just presupposed, but not
explained, even though it is this agreement that ensures
political integration. Legitimacy I achieved in elections
that are free, fair and secret. In the struggle and
competition between contestants legitimacy stems from the
aggregation of preferences in frameworks that are fair
Likewise, realism in international
politics conceive of international relations as
interaction between states being in a 'state of nature'.  States are treated as
'rational' actors. Parties who are dependent on each
other compete within a set of rules for the largest
share. Game theory or rational choice is, then, the
adequate tool for analyzing inter-state cooperation or
intergovernmentalism, not primarily because they are
power-based relationships - "a dog eat dog
world"  -
but because interaction is driven by mutual self-interest
and strategic calculations .
The nature of cooperation is more about mutual advantage
or utility than about reciprocity, impartiality or
commonality (cp. Barry 1989, Rawls 1993:17). The
formation of the preferences of the actors and �(T)the
constitution of the interests of a nation are taken as
established before negotiations among nations begin�
(March and Olsen 1998:951, cp. Moravcsik 1997).
Undoubtedly, this approach has improved the analytical
precision in the hypotheses and the empirical foundation
of the conclusions in political studies. But at the same
time the selected scientific tools have surely favored
one particular way of understanding politics (Almond
1990). Ideals are a sham, an ideology or a mask to be
exposed and debunked. The realist or economic approach to
politics "may explain adversarial politics, but it
ignores other critical aspects, such as the unitary, the
communitarian or the dialogue aspect of politics"
(Scalia 1991:205). It cannot explain the role of binding
norms or the force of moral arguments in qualifying
standpoints. "Its medium is bargain, not argument.
Its tools of persuasion are not claims and reasons but
conditional offers of service and forbearance. Whether
formally embodied in a vote or in a contract, or just
informally carried out in social behaviors, a strategic
outcome represents not a collective judgment of reason
but a vector sum in a field of forces" (Michelmann
1989:293). These models of politics and democracy, then,
have been criticized on several accounts. Further
problems arise with supranational institutions which
serve to lengthen the actual chains of representation,
control and legitimacy as the processes of aggregation
become more cumbersome.
Majority rule may be seen as a response to the problem
of finding one right answer. However, why does majority
voting bind participants, when no voting procedure
secures that the collective ranking of preferences
reflects the preferences of the voters (cp Arrow 1951,
Riker 1982)? Why is the outcome of a formal, correct
aggregation of non-reflective preferences respected when
the outcome is insecure? Merely aggregative solutions
".. can not live up to the ideals of democratic
legitimacy because outcomes can only claim to represent
winners and not a common will" (Chambers 1997:1).
Majority support is not sufficient to enact laws
legitimately as many scholars have pointed to (Dahl
1989:135ff, Offe 1982). There has to be non-majoritan
sources of legitimacy, because: "The majority
principle itself depends on prior assumptions about the
unit: that the unit within which it is to operate is
itself legitimate and that the matters on which it is to
operate is itself legitimate and that the matters on
which it is employed properly fall within the
jurisdiction of the unit. In other words, whether the
scope and domain of majority rule are appropriate in a
particular unit depends on assumptions that the majority
principle itself can do nothing to justify" (Dahl
Majority voting presupposes agreement on political
boundaries and power assignments, as it affects the
sovereignty of the nation states. On one reading the
majority principle is dependent upon a community of
memory, of communication and of experience (Kielmannsegg
1996). Even though parliament does not necessarily
represent the demos or the nation as such, it is only a
legitimate and an effective mechanism for representation
and majority voting when it rests on approved territorial
bounds and authority structures that reflect approved
power assignments. Only then will those who object to a
majority decision actually comply with it out of
volition. Majority voting, in fact, has increased in the
EU and has been of vital importance for creation of a
single market. It has contributed to what amounts to a
rather dramatic transforming of the norms that regulate
decision making in the EU (Weiler 1997:107). This lends
credence to the notion that the EU is something more than
and different from an international organization.
However, unanimity is the main decision rule and the
search for consensus is a powerful norm.
Voting is not enough
In recent years the theory of deliberative democracy
has received renewed attention in political analysis.
This theory maintains that majority rule " is never
merely majority rule..." because "...counting
of heads compels prior recourse to methods of discussion,
consultation and persuasion" (Dewey 1927: 207).
Increasingly, political scientists have paid attention to
the way discussion is required to facilitate collective
decision making. The voting mechanism can not stand
alone, but presupposes discussion as an additional and
supportive devise, to foster decision making. Empirically
speaking, there is a whole lot of communication going on
in a decision-making situation, as claims and proposals
require justification. Logically speaking; there is no
assurance that aggregation of exogenous preferences will
produce robust results, as was shown by Arrow and Riker
(op.cit.): Even though preferences may be rational and
transitive the resulting social rankings are
fundamentally arbitrary; majority decisions do not
represent �the will of the people� (Shapiro 1996:34).
Aggregation of preferences is not enough to legitimate
political decisions. However, the point about
deliberative democracy is not only that discussion is
needed in order to reach binding decisions. No model of
democracy can do without discussion. It is an efficient
means to represent preferences and to compensate for
asymmetric information and contribute to better decisions
(cp. Johnson 1993, Cohen 1998, Fearon 1998). Political
decision making is by its nature a choice under
uncertainty and "deliberation is in itself a
procedure for becoming informed" (Manin 1987: 349).
It is a way of reaching more security in an insecure
world. Actors live lives that are limited in time and
space. Consequently, they have bounded rationality: they
do not possess all information and do not have all the
competence and capability necessary to process it
adequately (March and Simon 1958). Actors may be
ill-informed; they may have badly or falsely grounded
opinions, they therefore need the arguments of other's in
order to reach a more enlightened understanding
(cf. Mill 1859, Dahl 1989). In addition, there is the
problem of complex or mixed motives that make coherent
action difficult. Base preferences engender no respect,
only laundered preferences that endure public scrutiny
should prevail (cf. Goodin 1988, 1996). In standard cases
actors need communication to get a clear idea of what to
do and to form a consistent opinion. Communication may
also take the form of bargaining. To bargain is to
engage in communication for the purpose of forcing
or inducing the opponent to accept one's claim. To
achieve this end, bargainers rely on threats and promises
that will have to be executed outside of the assembly
itself. (Elster 1992:15). In bargaining processes
parties employ speech acts strategically in order to
achieve results. They may even misrepresent their
preferences and deceive one another by paying homage to
virtue and social norms (Elster 1998b:97ff).
The claim on behalf of deliberative democracy is
stronger than pointing to the way discussion is essential
for pooling private information in order to make rational
means-end calculations. Many proponents of deliberative
democracy contend that public communication is needed in
order to legitimize outcomes vis-�-vis the citizenry.
Thus, democracy is also an end in itself, not only a
means. It is a (or the) way to secure right results - and
is, thus, a legitimation principle. Only
deliberation can get political results right as it
entails the act of justifying the results to the people
who are bound by them. This is the reason why contenders
have to argue in relation to prevailing social norms in
order to reach lasting agreements. To solve collective
action problems there is a need for normative
argumentation, i.e., shared notions of what ought to
be done. Compliance with some deontological norms that in
themselves command respect - e.g. democratic procedures
or human rights - is often required. Even though appeals
to norms in real discussions are liable to deception, the
fact that parties at least are hypocrites - they have to
�pay homage� to norms in order to achieve agreement -
does not only document to the importance of norms but
also shows, I believe, that strategic communication is
parasitic on authentic communication.
From a normative point of view legitimacy can only be
achieved in a deliberative, public process between free
and equal citizens. This is so because what is common
will have to be decided in public and not prior to it
(Cohen 1991:29). The nature of politics is, thus, not
confined to pragmatic dimensions of collective reason,
i.e., as finding the best means to maximize given ends,
but rather to the setting of goals and standards and the
interpretation of values. Cognitive knowledge about
voters' preferences and how to achieve ends efficiently
does not suffice. In addition, normative articulations
about what values and fulfillments are important to us
and what norms or rules should be applied in dealing with
common problems and conflicting interests are needed. In
order to drum up support parties have to try to convince
other parties with arguments or reasons that others
understand and may accept. Further, in order to justify
claims an actor has to compare his claims and beliefs to
those of others and enlarge his position so that
it becomes compatible with something that others say or
hold to be true and correct. He has to speak from the
position of the generalized other (cf. Mead 1962).
This requires communicative rationality, i.e., parties
try to talk themselves into consensus by applying
standards of impartiality. Actors coordinate their aims
by mutually respecting validity claims. By arguing in
relation to inter-subjective standards of truth,
rightness, and sincerity participants can reach an
agreement and a base for judging what are reasonable
choices (Habermas 1984: 392).
Arguing, then, not voting or bargaining, is the
currency of democracy. Also, in politics, the social
fabric is made up of parties that gives and respond to
reasons, even though prevailing disagreements - due to
hostility and conflicts over outcomes - necessitate
decision making devices such as voting and bargaining.
These non-deliberative procedures, however, in order to
function adequately to a large degree also presuppose
well conducted arguing processes, not least because they
must be justified - argued for - in order to be respected
(cp. Johnson 1998, Gutman and Thompson 1996).
Part III. Constitutional Democracy
The Challenge to Civic Republicanism
It is, however, necessary to distinguish the discourse
theoretical concept of democratic legitimacy from the
conventional civic-republican notion of legitimacy. The
latter connotes the old Aristotelian model of
deliberative democracy that conceives of politics as
deliberation in relation to a common good. Here politics
is the succession of ethics, and the constitution
(Politea) is the institutional expression for the meaning
of the good life. In modern pluralistic societies,
however, there are conflicts over notions of the good
life. The problem associated with the republican notion
of deliberative democracy (and of communitarianism in
general) is the priority of the good over the right. The
shortcomings of civic-republicanism, which gives priority
to collective will formation, represents a parallel to
the one-sidedness of liberalism (in the tradition of
Hobbes and Locke), which favors (pre-social and
pre-political) rights. The defenders of
civic-republicanism understand democracy as a community
which deliberates upon what is equally good for the
members. By implication, they do not recognize any
commitment that is not in accord with the authentic
understanding of the collectivity. It is only citizens
that are the bearers of rights, not human beings in
general (Arendt 1963). This theory pictures democracy as
a process of collective self-discovery which only gives
human rights a binding status as long as they correspond
to the society's ethical self-understanding (Habermas
It is that enables Dieter Grimm to see
the question of an EU constitution as a question of
political self-determination. True self-determination is
dependent on the existence of a demos. And as there is no
European demos, there can be no democracy . To this tradition
belongs the German Constitutional Court's Maastrict
decision which supported the Maastrich Treaty with
reference, not to supranationality, but to its being an
association of states. Joseph Weiler has labelled this the
No-demos thesis, saying that it ".. is premised
on an organic understanding of peoplehood deriving from
the European Nation-State tradition which conflates
nationality and citizenship and can, as a result,
conceive of Demos only in statal terms" (Weiler
1995:219). It is also from this perspective that
Jean-Marie Gu�henno can state that democracy is possible
when the "Gemeinschaft" from the outset is
strong enough (1996:398), and Fritz W. Scharpf can
maintain that democratic self-government is dependent
upon a high degree of cultural homogeniety (Scharpf
If democracy is framed as deliberation on the good
life, collective goals and communal ends, then the
central point of modern politics, which pertains to the
neutrality of the state regarding substantive conceptions
of the good life, is left out. Modern constitutional
democracies are united around a procedural commitment to
treating people equally and fairly (Dworkin 1978,
Rawls 1993). Constitutions have changed, and are no
longer the embodiment of a concept of the good life as in
premodern societies. It is now a device for limiting,
controlling and civilizing statal power. It is supposed
to secure societal autonomy, individual freedom and
organize, legitimize and authorize political power
(Preuss 1996a:113, 1996b, Castiglione 1996, Bellamy 1996,
Habermas 1993). Within modern societies there is a
plurality of values and conflicting views about the good
life among different groups, local communities and
cultures. When a mjority of the people shares certain
values, opponents and minorities may become threatened.
Thus, a polity favoring certain values or virtues would
be unfair to dissidents unless they are equipped with
rights protects their interests. Modern democracies are
politically integrated on the basis of common notions of
justice and fairness, rather than on the basis of
substantive values (Kymlicka 1989:21). A
modern constitutional order is held to be neutral with
regard to competing notions of the good life. Under
pluralistic circumstances, a heroic deontologist or an
authoritative interpreter of the good life will not do.  Therefore, a
deliberative concept of politics has to reflect the way
procedures and the system of rights institute and
regulate the political process, how they intervene in the
shaping of a collective will and in monitoring
Theories of deliberative democracy that are modeled on
deliberation within the city state or a homogenous nation
state are, thus, challenged by pluralism and also by
complexity due to societal differentiation. In opposition
to conventional models of deliberative democracy that
regard politics as deliberation in relation to the common
good, Habermas reframes deliberation in Kantian terms,
which means that he maintains a liberal position,
giving priority to the right over the good. Citizenship
is not conceptualized as based on a national or ethnic
origin reflecting specific worldviews, but as based on a
constitutionally entrenched notion of public and private
The modern state is premised on the right of the
individual - on the safeguarding of individual rights.
Modern societies are pluralistic and conflict-ridden and
the constitution makes it possible for different groups
and subgroups to live together under a common law. They
have to resolve their conflicts through the medium of
law. Citizenship and nationality - demos and ethnos - are
conceptually decoupled in the modern state and the state
is, in principle, neutral regarding different conceptions
of the good life. There are two points to be made:
First: The lessons to be learned from the political
revolutions of Europe are instructive with regard to how
we are to tackle the challenge of supra-nationalism:
"Indeed, in my understanding and construction of
supranationalism its value system is, surprisingly
actually wrapped up with the value system of European
ethno-national liberalism of the 19th century and, as
such, can offer great comfort for those concerned to
preserve the values and virtues of the Nation-State"
(Weiler 1995:245). Or as Habermas puts it "Democracy
and human rights form the universalist core of the
constitutional state that emerged from the American and
French Revolutions in different variants" (Habermas
Second: The discourse theoretical concept of
deliberative democracy sits very well with
supranationalism as it decouples citizenship and
nationhood and conceives the constitution as a system for
accommodating difference. Modern states are premised
on cultural diversity as there is a right to
nonparticipation. The legislative structure of the modern
constitutional state, and the modern idea of democratic
citizenship makes solidarity between strangers possible.
Actually, they are not nation states - Volksnationen -
founded on an ethical sittlichkeit or cultural
substance, but rather nations of citizens integrated by
common laws and legal procedures. The democratic
constitutional state does not need another basis than the
recognition of and trust in the procedures that ensure
participation in collective goal formation and that make
peaceful conflict resolution possible (Habermas
1996b:189): The democratic constitutional state
(Rechtstaat) institutionalizes the conditions necessary
for integration through self-legislation. This practice
is anchored in the medium of law as it simultaneously
secures the private autonomy of the individual by certain
protective rights, and secures the public autonomy of the
individual by a right to participation. Both human rights
and democracy are necessary for securing the private and
the public autonomy of the citizens because individual
rights cannot be formulated adequately unless those
affected first have been engaged in public deliberation
to discuss how to treat typical cases. The democratic
process, which in it self is legally constituted, is the
source of legitimation.
"... the principle of democracy states that only
those statutes may claim legitimacy that can meet with
the assent (Zustimmung) of all citizens in a
discursive process of legislation that in turn has been
legally constituted" (Habermas 1996a:110).
In this way discourse theory departs from both
republican and liberal conceptions of popular sovereignty
and democratic legitimacy. Whilst �liberals� (or
rather, social choice theorists) conceive of the
individual as bearer of rights and democratic legitimacy
as a question of a fair aggregation of preferences, the
republicans locate popular sovereignty in the public
assembly of citizens. Discourse theory, in contrast,
launches a de-substantialized and intersubjectivist
concept of sovereignty and locates it in the anonymous
and dispersed forms of communication in civil society -
in the public spheres - combined with institutionalized
discources within the formal political complex. Democracy
is conceived of as a set of argumentative or
communicative presuppositions and procedural conditions.
These bear the burden of legitimation: "Only the
principles of the guaranteed autonomy of the public
spheres and competition between different
political parties, together with the parliamentary
principle, exhaust the content of the principle of
popular sovereignty" (Habermas 1996a:171).
The EU does not meet these conditions, it is
contended, as there are no European political parties
furthering the European interest, and since the Council
of Ministers is the main legislative body. However, even
though Parliament originally was given only a
consultative role, subsequent Treaties, - and
consultation, cooperation, co-decision procedures - and
the Amsterdam Treaty have extended Parliament's influence
so that it now shares decision-making power with the
Council in a larger number of areas. Further, all major
political currents are represented in the Parliament -
(though the election turnout is low). Other claims are
that there is no European public sphere and that the
institutionalized deliberations within the
politico-administrative complex adhere to the logic of
power rather than to that of reason. Nevertheless, these
findings are not uncontroversial as is shown in several
recent publications. It has become obvious that what you
see depend, to a large degree, on where you sit: The
empirical findings are often the product of the
conceptual lenses used. In this last part of the paper I
will address the criteria for diagnosing the quality of
the public sphere and the nature of the interaction
within representative bodies that follow from the
Part IV. Deliberative Supranationalism
The Public Sphere Revisited
The public sphere as such provides the sort of
deliberative arrangement that fits the requirement of
discourse theory. In principle, everybody is entitled to
speak without any limitations, whether on themes,
participants, questions, time or resources. It is a
common space for free communication secured by legal
rights to freedom of expression and assembly.
The pessimistic view of democracy in the EU maintains
that as there is a lack of collective identity, the
prospect for a viable European public sphere is rather
bleak. �In the absence of European media, European
political parties, and genuinely European processes of
public-opinion formation, constitutional reforms could
not, by themselves, overcome the present democratic
deficit at the European level� (Scharpf 1994:220). There
is no agreement on common interests or values and
different languages and disparate national cultures make
opinion formation and coherent action unlikely.
"Plainly, 'Europe' is not a simple politico-cultural
space; nor is 'Europeness' an unambiguous attribute"
(Schlesinger 1995:4). These moods have been fueled by the
notable upsurge in xenophobic and racist movements in
Western Europe. While on the basis of simple empirical
findings one may be disappointed, I think, that the
pessimistic diagnosis reflects not only a rather
constrained conception of the public sphere and political
opinion formation but also a national-constitutionalist
view of supranational legitimacy. There have to be a
common ground for deliberation; a common audio-visual
space for interaction; and a shared identity to stimulate
collective opinion formation, the molding of common
interests and the mobilizing of collective action.
There is a communitarian, or rather a
civic-republican, string to this kind of critique, which
conceptualizes politics as people reasoning together
about the common good. This process of reasoning is seen
as something quite different from discussion of private
concerns, i.e., it appears as if a common will from the
outset prevails. This view presupposes a homogeneous
culture, a populace, a united people that comes together
in public spaces to deliberate and decide about common
concerns. It pictures the public sphere as something
rather distinct and stable, as a place where enlightened
and equal citizens can assemble to discuss public
matters. This is the concept of res publica handed
down from the Greeks where citizens meet in Agora as
friends and brothers to deliberate before decisions are
reached in Ekklesia, resurrected in the medieval
republicanism and in the seventeenth century England,
France and Germany. The greek model of the public sphere
which e.g. Hannah Arendt (1958) makes use of presupposes
a homogenous political community (Benhabib 1992:90ff). A
volont� gen�rale is possible because citizens are equal
and share common values and notions of the public
interest. In case of conflict, parties can reach an
agreement on the basis of a hermeneutic interpretation of
common values and affiliations about who they are and who
they would like to be, and, then, develop into a
collective subject - a nation - capable of action.
In this model there is no distinction between
deliberation and decision-making, between opinion
formation and will formation. Consequently, this
conceptualization does not capture the way the modern
public sphere is institutionalized in opposition to
government, it is situated in the civil society
and rendered possible by the fact that the citizen have
rights that they are entitled to use against the state.
However, also the bourgeois conception of the public
sphere of the previous century is too narrow as it is
conceived as one public arena and in this analysis
".... the emergence of additional publics (is
interpreted) as a late development signaling
fragmentation and decline. This narrative, then, ... is
informed by an underlying evaluative assumption, namely,
that the institutional confinement of public life to a
single, overarching public sphere is a positive and
desirable state of affairs, whereas the proliferation of
a multiplicity of publics represents a departure from,
rather than an advance toward, democracy" (Fraser
There are many public spheres in modern states and
they are not confined to national borders. There are
subaltern, counterpublics and there are overarching
publics transcending limitations of time and space made
possible by new media technologies and audiovisual
spaces. There are local publics, regional, national and
international publics, and there are general publics,
inter-mediate and semi- and quasi publics (Habermas
1996a:374ff, cp. Cohen and Arato 1992). New forms of
communication are evolving and citizens' involvement in
public debate may be seen as rather voluntary and
elective than obligatory and "native". The many
publics may be seen as fostering democracy as they
enhance the possibilities for popular participation in
opinion formation. Even though the problem of
fragmentation prevails it is fair to say that the more
publics, the more debate, and consequent the more
democracy. Fewer voices are excluded and more questions
are asked: more publics provide more possibilities for
testing the legitimacy of power.
Involved in the discourse theoretical notion of the
public sphere is a distinction between opinion formation,
which is the domain for public sphere, and will formation
which is the domain for decision-making units within the
political system. Publics do not act as they possess no
decision-making agency. In public spheres it is only
possible to deliberate and as such form opinions about
what should be done. In pluralistic and complex societies
public opinion is "anonymous" - it is
"decentered" into the network of communication
itself, it is dispersed, and has no power to govern.
"In the proceduralist legal paradigm, the
political public sphere is not conceived simply as the
backroom of the parliamentary complex, but as the
impulsegenerating periphery that surrounds the political
center: in cultivating normative reasons it has an effect
on all parts of the political system without intending to
conquer it" (Habermas 1996a:442).
These informal arenas for public
discussion and opinion formation provide a context of
discovery. This is an open and inclusive network of
public spheres with fluid boundaries that makes possible
the formation of public opinion (Habermas 1996a:373). The
public sphere is a unique, European invention constituted
by nothing outside the common action we carry out in it
and where no authority can claim control but must seek
approval. We are in fact witnessing a transition from the
speech of power, to the power of speech.  Habermas at once
attacks the republican notion of popular sovereignty
conditioned upon "the will of all", as well as
the notion of a center of society, the legislature, as
the locus of democratic legitimacy. In the discourse
theoretical reading of procedural democracy it is the
public and informal opinion formation, freed from the
necessities, compulsion and coercion involved in actual
decision-making, that connects political action to the
interests and needs of civil society. The constitutional
protection of the public sphere makes possible free
processing of opinions, information and formation of
position taking and generation of communicative power.
In this view, the public sphere in
Europe is not totally missing as there are new European
audio-visual spaces - newspapers, television, Inter-net,
and English maybe as a bound to be first language - and
the new social movements and identity politics cross
borders . In
light of the new information technology,
"(C)communication comes to be seen as flows
among publics rather than as exchange among discrete
commodities which can be owned and controlled privately
as things" (Keane 1993:243). Moreover, the point is
that the public sphere is not an entity unto itself, as
something, which may or may not exist. 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. This view
of the emergence of the public sphere is based on the
contention that the state originated, more or less,
through war or brute force, and that state authority only
subsequently was democraticized, i.e., subjected to the
rule of law. First came the state, then came democracy.
Collective identity has to be made rather than merely
discovered. It is from this assertion that the contention
`no European demos without a European democracy' is
However, it is not the public sphere alone that bears
the burden of legitimation. Rather, it is the interplay
between free and open debate in noninstitutionalized
(weak) publics and institutionalized debates - strong
publics - in the political system that together secure
the presumption of rational opinion and will-formation.
Popular sovereignty is to be secured by a
"two-track" model. The democratic procedures
constitute, according to Habermas, a context of
justification, as they provide the reference point
for decision making and negotiations that make clear
which norms and goals that are to be realized.
Institutionalized discourses, in representative
bodies, are necessary not only in order to narrow down
alternatives for decision making and voting, but also in
order to reach more enlightened opinions about the
public interest interest(s) or the common good(s). They
improve decision- making. Representation contributes to
refine and enlarge opinions by passing them through the
deliberate concern of chosen members of the demos. As
James Madison already made clear, representation
contributes to political rationality by lifting elected
members of the community out of parochial settings,
potentially corrupted by local factions, to supra local
settings where they have to ground their claims with
regard to others' interests and needs. In national or
federal settings the representatives have to take into
consideration different interests and perspectives in
order to justify particular claims and thereby can reach
more reasonable and legitimate decisions. Representation
may be seen as a precondition for political rationality
as it secures institutional fora in which elected members
of constituencies peacefully and cooperatively can seek
alternatives and solve conflicts and problems on a
broader basis: ..." a central goal of constitutional
democracy is to secure a realm for public discussion and
collective selection of preferences while guarding
against the dangers of factional tyranny and
self-interested representation" ... and, further,
principles of constitutional democracy ".. include,
above all, the effort to promote deliberation in
government, to furnish surrogates for it when absent, to
limit factionalism and self-interested representation,
and help bring about political equality" (Sunstein
However, if there is some credibility to the thesis of
a non-existence of a European public sphere, there is no
lack of representative bodies in the EU, as we have seen.
There are bodies both for representing Member State
citizens (the EU Parliament) and Member States (The
Council, The Commission), and Regions (Committee of
Regions). Regarding the notion of democratic deficit the
argument now takes on a different turn. It is maintained
that the deliberations adhere to the logic of power
rather than to the logic of arguments; self-interests
rather than common interests dominate. It is the large
member states that have the most votes, and it is the
economic-functional interests of the society whose voices
are most easily heard, due to lobbying and considerable
bargaining resources. Decisions are reached by experts,
and not by elected representatives, and laws are passed
without due hearings and with little transparency and
publicity - it is an elite game (Middlemas
1995:612). The representative system and the
institutionalized discourses do not live up to democratic
ideals, (viz. equality of persons). The EU system on the
whole is, on this reading, occupied by the special
interests of big business and the ideology of free
markets (Traxler and Schmitter 1995). The gap between
power transferred to Community level and democratic
control is "... filled by national civil servants
operating as European experts or as members of regulation
and management committees, and to some extent organized
lobbies, mainly representing business" (Williams
1991:162, cited from F�llesdal 1998). The EU is
characterized by principles of national
representation, interest representation, and representation
of expertise (Andersen and Burns 1996:227).
On another reading, however, the EU
already does possess a constitution and laws that
establish legal governance structures . The political process is
legally constrained. Small countries and rural interests
are also systematically overcompensated in the voting
formula of the Council of Ministers; and unanimity is
required on a whole range of issues, which in fact gives
Member States veto power, and thus puts them on an
equal footing (akin to the principle of equality of
states). Veto-power is a main barrier to
supranationalism, but on the other hand, it represents a
constraint on discourse that induces communicative
rationality: When parties can block outcomes, actors have
an incentive to convince others by employing 'rational'
arguments of what is a right or good decision. Moreover,
veto or higher majority quorum may protect against
professionals and lobbying. The emphasis placed on
consensus in the Community is interesting also because
representatives and delegates from Member State countries
are brought together in many kinds of deliberating fora
and arenas. They meet in committees, in boards and
councils, in order to resolve conflicts and find
solutions to common problems in a cooperative way. This
interaction is governed by legal norms and procedures
which means that parties have to raise claims to
correctness even if they are subjectively following
their own interests (cf. Alexy 1989:219ff). Regulatory
acts establish missions and objectives for the bodies,
and legal rules both enable and constrain action of their
members in order to secure fair and reasonable results.
There are e.g. procedures for consultation, cooperation,
and co-decision making and the objectives of the
Commission are to identify the European interest, to
consult as widely as is necessary and to respect the
principle of subsidiarity.
The type of inter-state interaction
generally referred to as international cooperation
intergovernmentalism - may be described as strategic, and
as conflict resolution through bargaining (Moravcsik
1994). The question of whether the EU is something more -
representing a deeper form of integration - then, can be
addressed by examining the ability to act in concert, to
achieve consensus on conflicting issues and to form a
common will about how to solve common problems. If the EU
is to be something more than an arrangement for
inter-state cooperation - the Union has to be able to act
on a collective basis: The members have to have an open
mandate from their constituencies in order to be able to
identify common interests, that is interests that do not
solely reflect nation state interests, but which they can
identify with. Forming a common will is conditioned on
the ability to act communicative rationally. Actors that
all have different interests or preferences must give
priority to seeking agreement over self-interest
maximation. The question of whether or not the EU is a
supranational democratic polity can fruitfully be
examined from the point of view of interaction modes. In
short, is the interaction made up of Member States that
compete for the biggest share or is it constituted by
some notions of common interests and shared identities.
"What supremacy requires is the identification of
rules and principles ensuring the co-existence of
different constituencies and the compatibility of these
constituencies' objectives with the common concerns they
share" (Joerges 1996:25). However, it is not enough
to document interest incorporation and the formal
structure of decision-making. We also have to study the
actual deliberation and decision-making processes and
examine the rationality, i.e., universality of the
concrete decisions. Is there a European 'bonum commune'?
In order to answer such questions we have to assess the
substance of the arguments and not only the character of
the procedure, because, even though we have no
procedure-independent criteria of what is a rational outcome - a common interest
- it is the "... arguments that provides the basis
for rational judgements" (Peters 1994:116) . In other words,
the discussion itself must comply with certain standards
of rationality - it must be of a certain quality - in
order to satisfy requirements for legitimacy (Mauss
1996:880f). In a next step it is necessary to study if
and how members voluntarily comply with decisions that
may be detrimental to their self interest, while
furthering the common interests (Eriksen 1990:348, 50).
In order to examine the quality of the interaction
process in representative and collegial bodies the
conceptual strategy of realism or the methodology of
economics, do not suffice, as they preclose the
possibility for communicative action. My contention is
that the nature of cooperation may be of a different
kind. Some institutions embody rules and procedures that
facilitate communicative action while others favor
strategic interaction. In a research program there is
need for criteria of demarcation for how to decide when a
process has been of a strategic nature and when it has
been of an argumentative nature.
If the critique of the public sphere is informed by
the evaluative scheme of civic republicanism, the
critique of institutionalized negotiations is informed by
the evaluative scheme of rational choice or the economic
theory of democracy, seeing democracy primarily as a
question of fair aggregation of preferences, and
negotiations as strategic interaction.  In the process of
bargaining between representatives of
conflicting interests the object for each of the parties
is to get a maximum outcome for their own interests,
and for this end they have to be able to persuade their
counterparts that, if necessary, they have the resources
needed to force their interests through. An aspect of
this is to persuade others that they also have the
will to employ these resources. The hallmark of
bargaining, then, is the latent presence of coercion. Use
of hidden or open threats and warnings are therefore
central elements in bargaining situations (cf. Schelling
1960). Compromise procedures regulated by norms of
fairness are called for when it comes to regulation of
The EU system is marked by consensual rather than by
conflictual decision-making. Consequently, a simple
distinction between unanimity and voting will not do.
Agreements may, even when parties have veto power, be of
a different kind. It may be a compromise which is
the typical (positive) outcome of bargaining. That
usually means none of the parties gets exactly what he or
she wants, but each regards the result as better than no
outcome at all. How much the various actors have to
deviate from their opening position depends on the
strength of their bargaining power, i.e., the resources
at their disposal, and on their ability to conduct the
bargaining process in a (for each of them)
favourable way. In that case parties will have different
arguments for consenting. Another possibility is rational
consensus which "...rests on reasons that convince
alle parties in the same way.." (Habermas
1996a: 166). There has been a lot of controversy over the
status of consensus, i.e. rational or qualified
consensus, in Habermas' work.
Communicative rationality, in the present use, only
means trying to establish consent or consensus by
employing arguments, and as far as agreements are backed
by mutually acceptable arguments one may say that there
has been some sort of deliberative process going on. A
transition to a higher level of abstraction - discourse
or principled arguing - where participants examine what
lies in the equal interest of all concerned, is not
necessary, I believe, for reaching binding decisions in
many cases involving political controversies. The
existence of formally correct procedures, and of rights
and the knowledge of others' strong evaluations, is often
involved in actual decision-making and sheds light on the
fact that decisions come about which are neither
compromises nor rational consensuses. In a deliberative
process one sees the force of the good argument working
to accommodate some points of view and values which make
further cooperation possible. The participants do not
agree on all matters, or on all premises of a conclusion,
but the discussion makes the parties aware of the values
at stake and of how the situation may be described from
another angle. This means that there are a whole lot of
situations where the force of the better argument
influences decision-making without resulting
in a qualified consensus. These agreements neither rest
upon a pure convergence of interests nor are they
negotiated compromises between contending parties. They
are communicatively achieved working agreements
(Eriksen 1999) .
Democratic legitimacy result from an open, public
deliberative process, but the reasons that convince many
need not convince all although the minority understands
and respects the reasons provided by the majority and
accept the result because of a fair process. The problem
of consensus and of majority vote have, among other
things, led James Bohman to propose a less demanding
principle of democracy stating that laws are legitimate
if they stem from an open and fair process, the result
allows for further deliberation, and �... the process
makes the public deliberation of the majority the source
of sovereign power� (Bohman 1996:187).
Implementation of legislative actcs by the Commission
is assisted by hundreds of committees of experts from the
Member States. Comitology is an EU expression designating
this practice. The Council has been rather reluctant on
conferring implementing powers to the Commisson - they
have as Joerges and Neyer put it not been "willing
to loosen their intergovernmental grip on the
implementation process in favour of supranational
institutions. In more constructive terms, the Comitology
decision rejects the idea of supranational central
implementation machinery headed by the Commission, and
thus indirectly forces national governments into a
co-operative venture" (1997: 277).
Comitology, which is an EU invention, may be
understood as an institutional response to efficiency and
legitimacy requirements. The Commission needs unbiased
information and expert knowledge as well as opinions of
laymen (and/or representatives of nongovernmental
bodies), in addition to loyalty and support from
repesentatives of national governments in order to be
able to implement measures effectively. Several hundreds
committees are active in the implementation of Council
decision and enjoy extensive freedom of discretion. It is
a general point to be made that broad participation and
fair decision-making rules enhance legitimacy, but what
is peculiar to comitology - contrary to other
international committees - is that these committees are
involved in decision making that is binding on domestic
governments. On the one hand this contribution to
Europeanization widens �.. the gap between normal
citizens and policy matters� (Wessels, 1998:228). On the
other hand, it has been proposed to see comitology, as a
new political order that may remedy democratic deficit.
We then have to ask: What conditions do the undertakings
of the committees have to comply with in order to
contribute to deliberative supranationalism?
My proposal is that they have to
take on a communicative style if they are to remedy the
alleged democratic deficit or if they are to contribute
to democratic supranationalism. The problem of bargaining
and voting procedures is that they encourage a process of
give-and-take, pork barreling, log-rolling etc. that do
not change opinions or involve learning or enlargements
or refinements of perspectives - there is no molding of a
common rational will. 
In a way it signals that the discussion has come to a
standstill - a dead lock. It also indicates that the
parties have accepted an outcome, but not because it is
an optimal outcome. They have to accept it because of the
resources and power relations involved. Each participant
would ideally like another and better outcome for
themselves, but can live with the agreement that has been
obtained. It is a suboptimal solution from the
point of view of the actors. 
Arguing, in comparison, then is marked by a
change of views, by the way the discussion helps to mould
preferences and to move standpoints. In case of conflict
at least one of the contenders has to change position in
order to establish agreement. And in case common problems
are to be solved, agreement on collective goals, about
what should be done is needed, i.e., molding of a common
will is required. When strategic rational actors change
their views, it is only to strike a better bargain: they
are not moved by the force of the better argument, but by
the outlook for success. Which logic the deliberations in
fact adhere to is an empirical question. Whether they
adhere to the logic of bargaining or to the logic of
arguing can not be settled in advance. Christian
Joerges and J�rgen Neyer (1997) conclude after having
studied the working of food committees that different
interests and affected parties are taken into account and
thereby actually meet the congruence criteria  They also contend that
interaction takes on a communicative rather than the
bargaining intergovernmental style.  Also reports from the
deliberations of the working groups that the COREPER
(Committee of Permanent Representatives) and the Council
have to rely on in preparing the deliberations of the
Council, points in this direction. �Several authors
argue that the national civil servants involved in these
working group meetings are exposed to a spirit of
co-operation and mutual understanding, to an esprit de
corps (Sasse et al., 1977, Pag 1987, Wessels 1991,
Westlake 1995, Kerremans 1996)�.... and, further:
�Obviously, informal communication is intense in the
working groups manned by full-timers. These working
groups also seem to enjoy a common leadership of core
members. Among these core members the non state
institutional actors clearly are more than primi inter
pares. They generally are the hub of the informal
communication network. The principal fact emerging from
the data is that our respondents appear to have adopted a
common attitude to their different partners, ...�
(Beyers and Dierickx 1998, 1,21). There is a distinct
supranationalist dimension to the way the interaction
between experts is going on as they have to pay more
attention to expertise and how to reach agreement and
manage to �get the work done� ( Beyers and Direckx
Independent regulatory bodies, like courts of law and
committees consisting of experts, national civil
servants, and representatives of affected interest groups
and NGOs seems to be more efficient in order to produce
solutions. Recent empirical research indicates that they
are � ..more suitable for complex, plural societies than
are mechanisms that concentrate power in the hands of
political majority� (Majone 1996:286). However, the
problem of democratic legitimacy prevails as they are
linked to unequal chances of participation. They are
based on expert knowledge and often power and contribute
to the technocratization of politics. Institutional
reforms for enhancing public accountability are called
When we address the EU system from a
discourse-theoretical perspective we become aware of the
rather complex set of institutions and procedures that
are relevant for assessment of democratic quality.
Democratic legitimacy does not solely rest on
representative institutions for aggregating preferences,
nor does it merely rest on citizens' participation in
decision-making bodies. Both informal and formal
institutions are needed, and both procedures for
deliberation and for decision making are required,
because only full representation plus rational
deliberation together ensure democratic legitimacy. The
procedure itself guarantees, as mentioned, only the right to participation, not the quality
of discursive processes. A more positive theoretical
program is possible as some institutional rules and
institutional practices favor one type of behavior while
other favor others. Certain procedural norms and
institutional settings are required to ensure that
participants take on a communicative and not a strategic
From this perspective we learn that in order to
address the democratic deficit of the EU or of its
democratic quality we have to examine, first, the Member
States and how well their democratic structure of
governance is functioning. Is there a free press,
party-competition and representative bodies, and is the
way the Member States exercise veto power in itself a
contribution to democratic governance? Secondly, we have
to address the network of intermediate organizations,
NGOs, political parties, social movements and
criss-crossing communicative channels of civil society.
Do they contribute to opinion formation, maintain popular
pressure on EU decision-makers and do they question the
legitimacy of the EU's undertaking? Thirdly, we have to
analyze the institutional complex of the EU itself, the
EU Parliament is directly elected, but how much power
does it really possess? The role of the Court and the
Committee system are also to be addressed. Do they
represent a broad spectrum of opinions and do they ensure
a certain degree of popular influence on decision making?
And, lastly, how is the interaction conducted? From what
sources do the decisive arguments extract their force and
what is the quality of the debate? To what degree do
decisions and laws stand up to a generalizing or
Taken together, these checkpoints render it possible
to address the problem of the democratic deficit of the
EU in a more sophisticated way than the conventional
theories of democracy make possible. In the end such an
analysis may come to find that the EU embodies certain
qualities that, from a democratic point of view, are
important. The EU contain, after all, a rather complex
�constitution� comprising both voting and bargaining
procedures, one the one hand, and procedures for ensuring
both public and institutionalized deliberations. People
are subjected to laws that they themselves have not
authored, but the complex institutional set up of the
Community contributes to the impression that citizens, at
least partly, possess the possibility of being co-authors
of the law. This may help us understand why the EU at all
survives as a governmental structure capable of making
binding decisions, despite all its obvious defects and
all the criticism leveled at it.
* Chapter prepared for Erik
Oddvar WEriksen and John Erik Fossum (eds.), Democracy
in the European Union - Integration Through Deliberation?
London: UCL-Press. It was read at the conference on
"Democracy in Europe - Integration through
deliberation, in Bergen, February 1998, and at ARENA, May
1998. I am grateful for comments made by participantsd
and to John Erik Fossum for also dcorrecting language.
 The literature
on the "Democratic Deficit" of the EU is
enormous, see e.g. Castiglione 1995, Williams 1991,
Middlemas 1995, Schmitter 1992, 1996a, 1996b, 1998,
Weiler 1995, Gustavson 1996, Andersen and Eliassen 1996,
Pogge 1998. Lehning and Weale 1997.
 "In the
field of health and safety regulation, the Community has,
'post-Maastricht', found itself unwittingly involved in a
third phase of integration, being increasingly required
to play a direct role in the implementation of European
health and safety measures" (Vos 1997:211).
 There may
be degrees of anarchy depending on whether only
government is absent or whether there is lack of laws or
norms altogether (cp �sterud 1991:294)
Morgentau [rev. by Thompson] (1993), Waltz (1959) see eg.
M�ller 1994, Risse 1997 for the debate on International
relations in Germany from the perspective of
rational actors not only make choices on the basis
of expectations about the future _ but also on
the basis of their expectations about the
expectations of others (Elster 1979:19).
 See Grimm 1995,
and for a critical comment see also Habermas
 This is one of
great insights of B. Constant (1819/1980).
democracy invites us to replace the notion of a regime
governed by laws of a legitimate power, by the notion of
a regime founded upon the legitimacy of a debate as to
what is legitimate and what is illegitimate - a
debate which is necessarily without and guarantor and
without any end" (Lefort 1988:39). See also Taylor
1995:266f, Habermas 1962/1989, 1992, 1997:123ff.
constitution for cooperation on the European level can
not mirror nation state constitutions, they cannot be a
statal constitution writ large, because it is only
through membership in a Member State that they have an EU
membership. J. Weiler understands the European community
as a new kind of integration and sees "European
demos and citizenship as part of a polity with multiple
political demoi ... which may consist in what may be
called the 'concentric circles' approach" (Weiler
1997:119): One is simultaneously a european and an
englishman. The EU is a union of peoples, not replacing
the national with the European (p.121)..
proposals are launched to catch the post-national nature
of EU, such as supranationalism (Weiler 1995),
deliberative supranationalism (Joerges and Neyer 1997), a
mixed polity (Bellamy and Castiglione 1997), an imperfect
state (Middlemas 1995), Condomino or Consortio (Schmitter
 In this way
legitimacy and democracy are conceptually linked:
Democracy is a way to find out what justice consists in
is aslo a kind of speech acts as strategic action often
involves communication among the parties. Giving and
receiving orders between supervisors and subordinates is
a typical example (Eriksen and Weig�rd 1997, Cp. Elster
resembles Habermas recent notion of konsens, but
this kind of agreement is reserved for ethical political
discourses: "The consensus (konsens) issuing
from a successful searh for collective self-understanding
neither expresses a merely negotiated agrement (Vereinbarung),
as in compromises, nor is it a rationally motivated
consensus (Einverst�ndnis), like the consensus on
facts or questions of justice. It expresses two things at
once: self-reflection and resolve on a form of live"
 The most
that is to be expected is agreement on what the parties
cannot subscribe to.
Nevertheless, they may even support it with rational
arguments: considering the circumstances, a compromise is
in fact `a first best outcome' unless you waste some of
the resources in the process of bargaining. Of course,
you could achieve better results if you had more power,
had more resources, and were more talented; but that is
Congruence means that those who are affected should also
be those responsible (cp. Z�rn 1998:8).
following citation from an interview with an official
from the German Bundesministerium f�r Gesundheit gives
support to a hypothesis of arguing: "During the
course of working together, delegates approximate not
only national legal provisions but also different problem
definitions and problem-solving philosophies. They slowly
move from representatives of the national interest to
representatives of a Europeanised interadministrative
discourse in which mutual learning and understanding of
each others difficulties surrounding the implementation
of standards becomes of central importance. The emergence
of shared feelings of interadministative partnership is
crucial to understanding the course of the negotiation
because the control which national governments have on
delegates is generally rather weak. Sometimes,
governments have not defined their preferences and
therefore leave delegates a wide margin of discretion. In
other instances, delegates use their unique informational
status to influence their governments' perception of
their own preferences or even simply by-pass them"
(interview conducted with official from the
Bundesministerium f�r Gesundheit, Bonn, 28.02.96, by
Joerges and Neyer 1997:292).
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[Date of publication in the ARENA
Working Paper series: 15.02.1999]