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The Myth of International Delegation: Limits to and Suggestions for Democratic Theory in the Context of the European Union 1

  • Hans Agné

Abstract

This paper presents an argument as to why democratic states are unable to delegate authority to international organizations. Influential attempts to justify democratically such international bodies as the European Union by means of delegation are found to be untenable. At a more general level of theorization, it argues that the theory of delegation as involving the recoverability of delegated authority leaves us unable to identify democratic reforms for international organizations. As a remedy to the latter problem, the article proposes an alternative theory of democratic ‘delegation’– one that applies equally well to national and to international politics.

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1

For valuable input I would like to thank Kjell Goldmann, Torbjörn Larsson, Mats Lundström, two reviewers of this journal, all participants in the Stockholm Seminar of International Relations and in the CONNEX conference in Uppsala on two occasions in the autumn of 2005, and Peter Mayers. For economic support I thank the Swedish Political Science Network for European Studies and the Special Programme within the Swedish Institute of International Affairs.

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2 Contributions that address normative issues on the basis of this position include, e.g., Majone, Giandomenico, ‘Europe's “Democratic Deficit”: The Question of Standards’, European Law Journal, 4: 1 (1998), pp. 528 ; Pollack, Mark, The Engines of European Integration: Delegation, Agency, and Agenda Setting in the EU, Oxford, Oxford University Press, 2003, pp. 410–14; Moravcsik, Andrew, ‘Is There a “Democratic Deficit” in World Politics? A Framework for Analysis’, Government and Opposition, 39: 2 (2004), pp. 336–63; Kahler, Miles, ‘Defining Accountability Up: The Global Economic Multilaterals’, Government and Opposition, 39: 2 (2004), pp. 132–58; Grant, Ruth W. and Keohane, Robert O., ‘Accountability and Abuses of Power in World Politics’, American Political Science Review, 99: 1 (2005), pp. 2943 . The politically most influential example of this position is probably the Maastricht verdict of the German Constitutional Court in 1992; see Ingo Winkelman, Das Maastricht-Urteil des Bundesverfassungsgerichts vom 12, Oktober 1993. Dokumentation des Verfahrens mit Einfürung, Berlin, Duncker & Humbolt, 1994.

3 Such a consent may perhaps require also some non-procedural criteria to be met, for example the protection of certain individual rights.

4 The principle that moral autonomy can never be alienated to other agents is embraced by philosophers such as Locke, Spinoza, Rousseau and Kant. Some of these thinkers are more inclined than their counterparts to regard autonomy as a collective attribute. For a brief survey of this literature, as well as a yet further attempt to argue in favour of the inalienability thesis at the level of individuals, see Kuflik, Arthur, ‘The Inalienability of Autonomy’, Philosophy and Public Affairs, 13: 4 (1984), pp. 271–98. For an application of this argument to democracies in our time, as well as a more direct consideration of the possibilities of delegation, see Dahl, Robert, ‘Procedural Democracy’, reprinted in Robert Goodin and Philip Pettit (eds), Contemporary Political Philosophy, Oxford, Blackwell, 1979/98, p. 114 ; or Richardson, Henry, Democratic Autonomy: Public Reasoning about the Ends of Policy, Oxford, Oxford University Press, 2002, p. 225 .

5 Karlsson, Christer, ‘Democracy, Legitimacy and the European Union’, PhD thesis, Department of Political Science, Uppsala University, 2001, ch. 8. Christopher Lord, A Democratic Audit of the European Union, New York, Palgrave Macmillan, 2004, ch. 9.

6 Dahl, Robert, ‘Can International Organizations Be Democratic? A Skeptic's View’, in Ian Shapiro and Casiano Hacker Cordon (eds), Democracy's Edges, Cambridge, Cambridge University Press, 1999.

7 Held, David and Koenig-Archibugi, Mathias, ‘Introduction’, Government and Opposition, 39: 2 (2004), pp. 125–6.

8 Held, David, Democracy and the Global Order, Cambridge, Polity, 1995, p. 23 ; Weiler, Joseph, The Constitution of Europe, Cambridge, Cambridge University Press, 1999, p. 279 . For some examples of earlier contributions to democratic theory that served to indicate the traditional restriction of this field to domestic politics, see Hans Agné, ‘Democracy Reconsidered: The Prospects of Its Theory and Practice during Internationalisation – Britain, France, Sweden and the EU’, PhD thesis, Stockholm, Department of Political Science, 2004, p. 1, n. 1; this article continues some arguments from ch. 6.

9 I put the word delegated within quotation marks to indicate that its object is somewhat different from that of delegation as defined in earlier theories.

10 In the context of the European Union, procedural conceptions of democracy are often portrayed as belonging to the input dimension of legitimacy; see Scharpf, Fritz, Governing in Europe: Democratic and Effective?, Oxford, Oxford University Press, 1999.

11 Excepted, of course, are those policies essential for upholding democracy itself. In democratic practice, this can be taken to mean that policies upholding the rule of law and furnishing constitutional protection for individual and minority rights have a special democratic significance. This can also mean depriving the majority – in the specific areas mentioned – of its otherwise general right to decide. See, for example, Michael Saward, The Terms of Democracy, Cambridge, Polity and Blackwell, 1998, pp. 53–7.

12 Dahl, ‘Procedural Democracy’, pp. 111–23.

13 Ibid., p. 114.

14 See references in n. 4 above.

15 Richardson, Democratic Autonomy, p. 225.

16 As translated in Winkelman, Das Maastricht-Urteil des Bundesverfassungsgerichts, pp. 781 and 798.

17 Proposition 1994/95: 19, Parliamentary Publications (Riksdagstrycket), pp. 19 and 34. For arguments inspired by the court, or at least very similar in their logic, see Sverker Gustavsson, ‘Defending the Democratic Deficit’, in Weale, Albert and Newman, Michael (eds), Political Theory and the European Union, London, Routledge, pp. 6379 ; Mats Lundström, ‘EU-inträdet och demokratin i Sverige’, in Hans Agné, Mats Lundström, Giandomenico Majone and Fritz Scharpf, Demokrati pä europeisk nivä?, Stockholm, Fritzes (Swedish Official Reports, SOU 1998: 128), pp. 45–74. The notes that follow give further relevant references.

18 Majone, ‘Europe's “Democratic Deficit”’; Moravcsik, ‘Is There a “Democratic Deficit” in World Politics?’.

19 Pollack, , The Engines of European Integration, p. 410–14; Tallberg, Jonas, ‘Executive Politics’, in Knud Erik Jørgensen, Mark A. Pollack and Ben Rosamond (eds), Handbook of European Union Politics, London, Sage, forthcoming, 2007.

20 Moravcsik, ‘Is There a “Democratic Deficit” in World Politics?’, p. 356.

21 Kahler, ‘Defining Accountability Up’, p. 135.

22 Moravcsik, ‘Is There a “Democratic Deficit” in World Politics?’, pp. 344–7.

23 Majone, ‘Europe's “Democratic Deficit”’, pp. 16–18.

24 Ibid., pp. 20–8.

25 Or perhaps favoured the latter no more than the former.

26 Karl Popper, The Poverty of Historicism, London, Routledge and Keagan Paul, 1957, p. 3.

27 Richardson would supplement this requirement with others, though.

28 It bears recalling here that some variation may be found between national cases. As compared with a unitary state, for example, a federal state would appear to find it harder to keep ultimate control over such authority as it has delegated to regional sub-units. The experience of federal states, accordingly, ought to be closer than that of unitary states to the international pattern. However, the major difference still remains. Sovereign states, whether federal or unitary, retain ultimate control over their territory – by force if necessary: a prerogative lacked by the regional sub-units of federal states. Hence the latter have far fewer opportunities when confronting their states over authority than states have when confronting international organizations. Still more important, however, is the fact that transfers of authority from federal to regional level within democratic states require far less in the way of democratic justification, inasmuch as the regional sub-units – in contrast to international organizations – qualify as relatively democratic, due to their internal political procedures.

29 Dahl comes close to interpretation 2a in his article ‘Procedural Democracy’, and to interpretation 2b in his more exploratory work, Dilemmas of Pluralist Democracy, New Haven, CT, and London, Yale University Press, 1982.

30 Note that the validity of this argument does not depend on the controversial classification of the EU as an international organization. Many analysts regard the EU, of course, as something much stronger than a mere international organization. On such an interpretation, however, the ultimate claim being made here – that the EU's authority cannot be democratically justified by reference to the recoverability of authority – is actually strengthened.

31 Everywhere in the literature – without exception, it seems – democracy is regarded as a political system in which a population rules itself, and not one in which one population exercises rule over another (for just one example, see Robert Dahl, Democracy and its Critics, New Haven, CT, Yale University Press, 1989, p. 1). It would distort the concept of democracy to the point of incoherence to suggest that, other things being equal, the level of democracy enjoyed by a people automatically rises when the people acquires the capacity to determine the politics of another.

32 The fact that such a power could never exist at the level of the nation-state is irrelevant. The criterion of democracy, as specified by Dahl and Richardson, is not that only such powers as can be exercised in nation-states must be democratically controlled; rather, all significant powers must be democratically controlled.

33 The same democratic problem does not apply in relation to multinational companies, inasmuch it is possible for a procedurally democratic state to run a multinational company, as surely as any private actor actors can do (except under the provision of certain EU or WTO regulations, but here again the democratic problem arises in connection with international organizations rather than multinational companies).

34 For an elaboration of this idea, see Agné, ‘Democracy Reconsidered’, pp. 302–18. Similar notions have recently made their way into discussions of international or global democracy. The draft of the Constitution for the European Union, for example, begins with a quote from Pericles’ Funeral Oration, as told by Thucydides, to the effect that democracy is to be defined in terms of the greatest number, rather than the majority or some principle of equality: ‘[o]ur constitution … is called a democracy because power is in the hands not of a minority but of the greatest number’ (available at http://europa.eu.int/, p. 1). Another example is the concept of the multitude used by Hardt and Negri to capture the prospects for popular power in globalizing social relations; see Michael Hardt and Antonio Negri, Empire, Cambridge, MA, Harvard University Press, 2001.

35 For similar, albeit distinct, conceptions of a democratically relevant action capacity, see Held, Democracy and the Global Order, p. 100; Fritz Scharpf, ‘Economic Integration, Democracy and the Welfare State’, Journal of European Public Policy, 4: 1 (1997), p. 28; Kjell Goldmann, Transforming the European Nation-State, London, Sage, 2001, p. 156. For a comparison, together with arguments in support of my deviation from such notions, see Agné, ‘Democracy Reconsidered’, ch. 3, sect. 3.1.2.

36 My use of the term ‘the people’ does not presume the existence of definite and unchangeable peoples. For an elaboration of the concepts inherent in ‘delegation’ in connection with efforts to define demos or citizenship, see Agné, Hans, ‘A Dogma of Democratic Theory and Globalization: Why Politics Need not Include Everyone it Affects’, European Journal of International Relations, 12: 3 (2006), pp. 433–58.

37 One may still contemplate various measures to strengthen national parliamentary control over government international activities. However, such efforts will never be able to transcend the structural difference between national and international politics and will hence never approximate the requirements of a democratic justification.

38 For empirical methods to estimate political autonomy in the area of budget policy, see Agné, ‘Democracy Reconsidered’, ch. 3.

39 To assess the democratic legitimacy of a particular institution by this method, it is not necessary to estimate the effects on individual and collective autonomy in all domains of human life. When the democratic legitimacy of a particular institution is challenged, the issue will be settled by assessing autonomy in the specific area to which that challenge is calling attention. In the case of an international free-trade regime, for example, the autonomy that should be assessed may concern taxation levels and consumer prices. Hence the theory proposed here is certainly not rendered impractical by a requirement that, in order to judge the legitimacy of an institution, one must begin with assessing every possible kind of autonomy.

40 To the extent that none of these changes can be undertaken without reducing efficiency, our judgement in terms of delegation or alienation will also depend on the precise balance we choose between ‘as many as possible’ and ‘as much as possible’. There is nothing problematic about letting this judgement depend on individual interpretations of democracy. Democrats need not all agree on the precise balance to be struck between popular involvement and autonomy, so long as they all favour both criteria and do not allow the realization of the one to erode that of the other significantly.

41 ‘Greater’ in comparison with the group of people who are included in the procedures of the policy-making agency.

42 Richardson (Democratic Autonomy, p. 217) also adds the condition that the practice of independent agencies must reflect the will of the people, as laid down in overarching legislation. The concept of the will of the people is useful when assessing constraints of autonomy, but it should not be brought into the very definition of democracy. To make the degree of democracy dependent on what people want is not consistent with the important view of democracy as neutral among decision-alternatives (see, for example, Kenneth May, ‘A Set of Independent, Necessary, and Sufficient Conditions for Simple Majority Decision’, in Brian Barry and Russell Hardin (eds), Rational Man and Irrational Society?, Beverly Hills, Sage, 1952/1982, pp. 299–301; McGann, Anthony J., ‘The Tyranny of the Supermajority. How Majority Rule Protects Minorities’, Journal of Theoretical Politics, 16: 1 (2004), pp. 5377. If a policy P cannot for some reason be undertaken this would, according to a will of the people theory of democracy, imply a defect of democracy only if people want to pursue P, not if they do not – and hence, in some situations, democracy would be regarded as increasing simply because people change their political opinions from having desired the pursuance of P to indifference over this matter. As a theoretical position this appears to be strange. People changing their political views is a rather natural ingredient of democracy and certainly not injurious to it.

1 For valuable input I would like to thank Kjell Goldmann, Torbjörn Larsson, Mats Lundström, two reviewers of this journal, all participants in the Stockholm Seminar of International Relations and in the CONNEX conference in Uppsala on two occasions in the autumn of 2005, and Peter Mayers. For economic support I thank the Swedish Political Science Network for European Studies and the Special Programme within the Swedish Institute of International Affairs.

The Myth of International Delegation: Limits to and Suggestions for Democratic Theory in the Context of the European Union 1

  • Hans Agné

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