European Journal of Political Theory

http://ept.sagepub.com The European Union Democratic Deficit: Federalists, Skeptics, and Revisionists
Jonathan Bowman European Journal of Political Theory 2006; 5; 191 DOI: 10.1177/1474885106061606 The online version of this article can be found at: http://ept.sagepub.com/cgi/content/abstract/5/2/191

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article

The European Union Democratic Deficit

Federalists, Skeptics, and Revisionists
Jonathan Bowman
Saint Louis University

EJPT
European Journal of Political Theory
SAGE Publications Ltd, London, Thousand Oaks and New Delhi issn 1474-8851, 5 ( 2 ) 191212 [DOI: 10.1177/1474885106061606]

a b s t r a c t : I outline the current debate over the European Union democratic deficit in terms of differing methodological approaches towards the realization of freedom and basic rights to political participation. Federalists opt for a model of freedom as noninterference and autonomous self-determination by proposing to tie basic rights in the EU to a univocal form of European-wide popular sovereignty. Although skeptics argue that the EU lacks the fundamental basis for such European-wide democratic self-determination, they ultimately defend a similar view of freedom as noninterference with their appeal to the collective will of the member states. Democratic revisionists instead point to the novel democratic potential of institutions in the EU such as the Open Method of Coordination for mediating overlapping sovereignties. I conclude using the example of basic rights to effective participation for immigrants and minorities to illustrate the strengths of the revisionist view over views that appeal to the principle of subsidiarity. k e y w o r d s : democratic deficit, democratic revisionism, European Union, federalism, freedom, nondomination, Open Method of Coordination, republicanism, sovereignty, subsidiarity

As a condition for European Union (EU) membership, member states must respect human rights and uphold democratic principles. However, critics argue that the EU as a transnational polity fails to live up to the criteria set for its member states. Even though respect for human rights is a condition for the accession of applicant states, the EU has yet to formulate a common human rights policy. And although the number of EU policies and laws that affect its citizens increases every year, critics remain doubtful whether citizens have real deliberative influence over its decision-making. Most simply stated, the EU would not accept itself if it were to apply for membership. Hence arises what has come to be known as the democratic deficit. Contemporary responses to the lack of real citizen influence over EU laws and policies are centered on practical questions of the best institutional design to ensure popular sovereignty and the protection of basic rights to effective political
Contact address: Jonathan Bowman, Department of Philosophy, Saint Louis University, 3800 Lindell Blvd, St Louis, MO 631560907, USA. Email: bowmanjm@slu.edu

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European Journal of Political Theory 5(2) participation. While the institutional proposals differ, most replies to the democratic deficit fall into the conventional template of popular sovereignty as the minimal threshold for democratic self-rule, employing the principle of subsidiarity to ensure that what can be done at a more local level is not raised to a higher level.1 These proposals primarily view the self-legislating autonomy of a demos as the best way to realize popular sovereignty and basic rights to effective participation in decision-making processes. I overview the general contours of this current debate, setting up the three main positions stylistically in terms of skeptics who want to preserve the autonomous will of member states, federalists who want European-wide autonomous legislation, and revisionists who instead propose a democracy of demoi with multiple sovereignties. More importantly, however, motivating these practical debates concerning the best institutional design for enhanced influence over EU laws and policies are more pressing normative and philosophical questions concerning republican ideals of freedom and equality necessary to allocate basic rights to effective political participation. Freedom and equality thus serve as standards of democratic rule by which the three competing designs will be assessed. Framing the debate primarily in terms of freedom, I show how differing conceptions of freedom subsequently influence ones views about how best to devise republican institutions that ensure norms of equal political participation fitting for this unique transnational order. Following some opening remarks that set the problem of the democratic deficit in terms of freedom, I move into my three-step argument. First, while federalists and skeptics propose very different institutional designs for the EU, they are both committed to a normative view of freedom traditionally associated with the self-legislation of a demos. Second, along with revisionists, I reject popular sovereignty and the notion of freedom as autonomous self-determination as a satisfactory democratic ideal. In particular, the model of freedom as self-determination cannot realize an adequate norm of equality when conceived in terms of equal rights to political participation for all those most immediately affected by EU policies, including non-citizens who are a significant group in its increasingly multicultural civil society. Third, I introduce my main contribution to the democratic deficit debate, which is to develop the revisionist position positively beyond its negative rejection of freedom as self-determination. Self-legislation at both the higher level of European-wide policy objectives and at the lower levels of member state jurisdiction, while consistent with the principle of subsidiarity, can turn into a different conception of freedom as noninterference that is implausible for the overlapping sovereignties of the EU.2 Instead, freedom as nondomination can preserve the best features of the republican tradition and prove to be a more fitting normative ideal for the EU.3 This third republican view of freedom more adequately incorporates into deliberations all subjects affected by EU law and policy, including member states, citizens, and, in some cases, even non-citizens.

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Bowman: The European Union Democratic Deficit To achieve this broader scope of rights to equal political participation, freedom as nondomination is the best normative ideal for my interpretation of the EU as a multiperspectival polity.4 This is the analytic prism chosen to make it intelligible as a political order by seeking to preserve rather than overcome its complex three-pillar structure. Following the likes of Joseph Weiler, James Bohman, and Gerald Ruggie, such responses to the democratic deficit correctly acknowledge that no single all-encompassing theory of democracy can adequately capture its diverse practices and novel functions.5 By facilitating democratic accountability between plural sites of sovereignty and preserving the prevailing forms of multiculturalism in the EU, regarding the EU as a multiperspectival polity will require significant modifications of the republican tradition.6 Human rights policy towards immigrants and permanent minorities will thus serve as an illustration of how the revisionist track allows for a more inclusive ideal of justice when set in terms of basic rights to nondominating equal participation for all those affected by EU policy from various forms of political membership.

Freedom and the Problem of Transnational Legitimacy

When taken at face value, freedom serves as the relatively undisputed normative standard by which competing institutional designs for the EU are judged for legitimacy. However, this analysis of freedom as a normative standard for legitimacy begins by recognizing that freedom is a complex concept that can be realized normatively in at least three different ways. As an initial version, freedom as selfdetermination is traditionally associated with democracy in its standard forms, whereby those that seek to formulate law and policy do so through acts of collective willing. Second, freedom as noninterference occurs when these autonomous acts of self-determination exclude those that fall outside of political membership in a particular community. This more exclusive form of freedom means to escape coercion in making collective political choices by effectively avoiding hindrance, threat, or penalty from any force outside or external to a specific demos.7 Finally, at the other end of the normative spectrum, freedom as nondomination allows for the forms of interference prohibited on the prior standards by permitting multiple forms of political membership and overlapping sites of pooled sovereignty. On this more inclusive view of freedom, acts of interference between various demoi are acceptable insofar as they do not subject those affected by laws and policies to the arbitrary domination or the arbitrary good favor of those interfering. For republicans, arbitrariness would ensue in political domination in cases where decisions and policies do not adequately track the interests of those immediately affected.8 Before developing this third version of freedom in the later stages of the argument as a normative alternative to noninterference and self-determination, I will first give short examples of the initial two more closely related views of freedom. Advocates of the first would regard freedom in terms of the exclusive right of citizens in a given polity to self-determination in governing those legislative

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European Journal of Political Theory 5(2) affairs that fall within their territorial jurisdiction. One example would be the exclusive right to set standards for immigration policy within the sovereign borders of member states and within the internal confines of the EU. Proponents of the second standard would take self-determination to its extreme, calling for noninterference in setting a schedule of basic rights for European citizens, for example, prohibiting outside international bodies from formulating the rights of minority groups within EU and member state territorial limits. One potential problem with these two related views of freedom is that both are tied to a model of the institutionalized popular sovereignty of a single demos as the minimal threshold for democracy. The difficulties with such appeals are initially made manifest by looking at the organization of EU intergovernmental deliberations, in particular, by looking at decision-making in the emerging institutional framework of the Open Method of Coordination.9 While in this section I will primarily focus on this single example, such an overlapping scheme of plural sovereignties between member state and EU level decision-making is characteristic of the challenges associated with construing transnational democratic legitimacy explicitly in terms of popular sovereignty, freedom as noninterference, and autonomous self-legislation. The crucial difference between nondomination and the other two versions of freedom comes down to differences in dealing with multiculturalism, with the former version of freedom allowing for a wider scope of political membership. What has come to be known as the Open Method of Coordination (OMC) in the EU best captures the capacity of freedom as nondomination to deal with the prevailing forms of multiculturalism that are problematic for traditional forms of republicanism. The OMC and its rolling system for the realization of basic rights allows diverse institutional sites periodically to learn from one another and compare experiences in the process of dealing with common problems.10 Most succinctly defined, it is a regulatory device offering a decentralized specification of common standards periodically disciplined by ongoing comparison between diverse units.11 While the OMC was a process originally inaugurated with the European Employment Strategy (EES), its success in this realm has led to experimentation in a broad array of other fields including research and development, economic and social policy, and now human rights.12 Under these schemes, the European Commission, the main regulatory body in the EU, usually employs the research of experts in its committee system to compare the policies of member states in a given field. Member states are encouraged to provide National Action Plans (NAPs) in meeting a particular policy goal overseen by the Commission in the implementation process. Experimental pilot programs are also developed and sometimes funded at the EU level in order to find the best policies that member states employ in a given policy dilemma. Best practices then are established as targets for other member states to either meet or surpass through means that still respect broad differences between the various cultures present in the EU.

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Bowman: The European Union Democratic Deficit For further clarification, the aforementioned process of setting out common targets for realizing basic rights through the OMC is what experimentalists term benchmarking. This occurs when two or more member states establish a common metric for the comparison of policies, goals, or objectives in light of a shared problem, by following a general three-step process for realizing basic rights. First, as a typical illustration of benchmarking, the Commission identifies a practice as problematic that deals with an issue of common interest to all member states of the EU.13 Next, minimal standards for compliance are set as benchmarks for comparison. While this step of benchmarking does call for a degree of abstraction in generalizing targets, it is also sensitive to diverging social and cultural contexts, drawn from the best practices of all states facing similar problematic circumstances. Lastly, variances in meeting the minimal benchmark are permissible by states insofar as diverging practices meet the minimum standards set by previous precedent as well as or better than existing practices. The practice of sanctioning whether member states meet the minimal standards for realizing basic rights as laid out in the OMC occurs through what experimentalists have termed mutual monitoring. This is the regularized process of preempting disastrous consequences by looking for performance failures and possible sources of deception in attempts by member states to meet the established benchmarks.14 On such a model, other member states, EU-level institutions like the Parliament, Commission, Court of Justice, European Court of Human Rights, and even NGOs can monitor the internal practices of any given member state participating in the OMC and make public the degree of success in protecting the rights of their citizens. In such instances, conventional expressions of popular sovereignty organized on the model of freedom as noninterference are undermined by this ongoing intergovernmental realization of rights. On such a complex institutional design, the traditional call for legitimacy by virtue of noninterference in the sovereign will of a single member state is misguided. In addition, the similar appeal to democratic legitimacy in terms of freedom as autonomous self-legislation for the EU would presuppose a European-wide popular will, while the Open Method of Coordination fosters differentiated networks of solidarity among distinct political cultures. Therefore, a single locus of popular sovereignty can be located at neither one level nor the other; sovereignty must be shared among various legislative sites as even strategically oriented member states increasingly lack the ability to control the final outcomes of deliberations subjected to the OMC. Sharing of sovereignty between levels is allowed only insofar as acts of interference between levels do not subject those affected to arbitrary forms of domination or to the arbitrary good favor of institutions formulating legislative policy. The next section develops this argument in more detail by explicating the following insight gathered from practices of the OMC: in order adequately to address the deficit in democratic legitimacy, setting freedom as a normative standard must take into account the unique kind of multiperspectival polity the EU is.15

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European Journal of Political Theory 5(2)

Facing the Legitimacy Deficit: Federalists, Skeptics, and Revisionists

Given the institutional complexity involved in the multileveled dispersal of policy formation between member states and the EU, I will look at three very different ways to increase citizen influence over laws and policies in order to deal with the associated democratic deficit. While these options at face value all address the practical concern of the capacity of competing institutional designs for ensuring effective political participation in EU decision-making, each will be recast in terms of competing expressions of the normative ideal of freedom. This comparative discussion serves as a broader illustration of the need ultimately to shift from a threshold of popular sovereignty through autonomous legislation to a rights-based threshold of equal political participation. The Federalist Approach to the Democratic Deficit Eurofederalists argue that changes need to be made for the EU to meet conditions for democratic rule normally associated with a conception of freedom as noninterference in state-like institutions that produce positive legislation.16 This is exemplified most clearly through their desire to institute shared objectives that allow for European-wide collective willing on the model of the conventional nation state tied to a system of rights at the European level. Federalists therefore propose to emulate the collective willing of EU member states by regarding European-wide public deliberation as the content of formal law-making, eventually leading to the establishment of legislative procedures for producing a unified European sovereign will. As an alternative to the more traditional view of international political organizations as sites for the delegation of authority out of deliberative arenas,17 Eurofederalists view political representation at the international level as a way to reproduce the democratic achievements of the conventional nation state at a higher level. Federalists also argue that institutionalized practices of sovereign Europeanwide law-making could actually serve to establish the form of political identity familiar to the conventional republican polity at this EU level. In general, practical measures for fostering such an identity through a common political culture include the transformation of the European Parliament into the primary legislative body in the EU and increased transparency and accountability to the European public for the Council of Ministers, European Council, and Commission in their respective legislative and executive functions. More specifically, the process of constructing a common identity also includes a sharper determination of administrative competencies between member states and the EU in order to clarify the expanding set of jurisdictions whereby European law takes direct effect over national legislation. This would come about through an explicit European Constitution that would more clearly demarcate the

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Bowman: The European Union Democratic Deficit limits of overlapping legal jurisdictions in the EU and allow for more determinate bounds of noninterference in the sovereign jurisdiction of the EU. One way of instilling EU-wide objectives would include seeing the system of basic rights in the EU as a source of a common European political identity. For areas that are not matters of European-wide interests and objectives, the principle of subsidiarity is another measure used by federalists to respond to the democratic deficit by delineating between European and local jurisdiction to bring some decision-making powers back to member states. In matters that do exceed the local jurisdiction of member states, federalists call for the exercise of the Community Method that employs the co-decision procedure within the text of its material constitution as the standard procedure for producing legitimate legislation through a bicameral legislature in order to grant equal measures of input shared between the Parliament and Council of Ministers.18 Proponents argue that the Community Method most effectively translates the will of member states through the Council of Ministers together with the broader interests of the European public via the European Parliament into a unified European-wide popular will, with the Commission retaining the federalist element of the process through its sole right to initiate policy. However, in addition to the multiple levels of sovereign jurisdiction highlighted earlier in the previous section, it turns out that reproducing the popular sovereignty of the nation state at a higher EU level may be more difficult for federalists than initially surmised. In an opposing camp treated more fully in the next section, skeptics point to the absence of European-wide political parties and general voter apathy in the elections of the European Parliament. They also argue that reinstitutionalizing the conventional model of noninterference in the formal legislature at a higher European level will not work without a more robust political identity to draw upon. Repeated failures in extending the political identity familiar to the democratic nation state to a higher level lead into the additional set of challenges that Euroskeptics will continue to raise in the next section against the federated model. The Skeptical Approach Euroskeptics challenge the previous more conventional responses to the democratic deficit that proposed emulating the democratic traditions of member states as the template for supranational democracy.19 However, in the end, while skeptics reject the prospects of autonomous self-legislation at the EU level, they radicalize the principle of subsidiarity by employing it to enact a more local expression of the same univocal ideal of popular sovereignty. Skeptics thus also call for a model of freedom as noninterference, this time in the sovereign legislation of each member state. In opposition to the federalists, skeptics argue that the EU as a sovereign entity would entertain the hope of reproducing the democratic legitimacy of its

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European Journal of Political Theory 5(2) member states if it met three basic conditions that adhere to the presumed need for an ideal of freedom as noninterference. The first condition for legitimate selflegislation would be met if the EU were defined by fixed territorial boundaries. Second, the EU could exercise such powers of autonomous legislation if it enjoyed an explicit founding moment whereby its principles were laid out in a constitutional text. And last, it could emulate the democratic traditions of its member states and might even warrant recognition as a republican polity if it was comprised of a people that shared a common political culture. However, obstacles associated with these three criteria immediately emerge. Skeptics draw upon these basic features of the conventional democratic traditions of current member states to argue that the EU cannot merely extend their democratic legitimacy to a higher level. They thus conclude that powers of autonomous collective willing must be returned back to the more familiar level of the sovereign member state. Institutional remedies skeptics defend to reverse the prevailing trend of enhanced European integration are all generally consistent with enhancing the local side of the principle of subsidiarity. These include returning sovereign legislative powers to member state parliaments, electing antiEU national representatives to the European Parliament, and strengthening powers of national executives in the Council of Ministers to opt out of EU majoritarian decision-making. 1. As initial support for these various modifications of EU institutional design to halt any further political integration, skeptics point out that the geographic borders of the EU are indeterminate. They emphasize that the current borders of the EU are merely borrowed second-hand from member states.20 This presents a problem for a normative model of freedom as noninterference at the EU level when there are no clear boundaries for demarcating those persons inside and outside the sovereign geographic jurisdiction of EU institutions. In addition, with expansion to the east, its second-hand borders are expanding. Criteria for membership in the EU are by no means limited just to western European nations. Membership is open to an array of applicants that may in the future not obey the traditional boundaries drawn between Europe, Asia, and Africa. 2. Democratic nation states have historically enshrined their commonly held legal principles in an explicit text. The constitution as a shared text in its most conventional form serves as another clear determinate for establishing boundaries of noninterference in the legal jurisdiction of a polity. However, progress towards drafting a European Constitution was initially halted as the draft constitution was rejected in December 2003 due to dispute over dividing voting rights between large, medium, and small member states. Although a modified draft constitution was approved by the European Council in July 2004, the entire document was most recently subjected to veto due to the May and June 2005 failed national referenda in France and the Netherlands respectively. 3. Perhaps most importantly to democratic rule construed in terms of conventional understanding of the republican tradition, the very notion of a democratic

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Bowman: The European Union Democratic Deficit state usually goes hand in hand with the formation of a clear demos or people. A people characteristically hold in common a shared political identity that can supply the background political culture necessary for democratic legitimacy. However, in addition to the growing multiculturalism within member states, the EU is comprised by multiple demoi, each with a distinct basis of sovereignty embodied in a unique set of shared values and traditions. Skeptics point out that a remedy to this lack of shared political identity is entirely unforeseeable for the near future: there are no European-wide political parties and no shared common language as repositories of common values. And skeptics also highlight that the current expansion eastward will only augment the prevailing trends towards an increasing rather than diminishing plurality of identities. Skeptics therefore conclude that democracy is best left up to the institutions of member states insofar as the EU does not conform to the basic conditions required for popular sovereignty on a model of freedom as noninterference: the self-legislating will of a territorially defined people through a common political culture. The Revisionist Approach Revisionists stem from a variety of strands and generally agree with skeptics that the European Union cannot emulate the preconditions for democratic legitimacy that are normally required of member states on the model of self-legislating autonomy.21 While they cede to the criticisms of the skeptics levied against federalists, my contribution is to view democratic revisionism in terms of the appeal to an alternative republican ideal of freedom as nondomination that is more adequate for transnational democracy. As a further development of the current array of positions advocated by democratic revisionists, I show how the emerging system of basic rights in the EU can draw upon the overlapping forms of sovereignty in a multiperspectival polity rather than from a single site. I will thus align my proposal for a republican ideal of freedom as nondomination with those democratic revisionists who argue that novel practices and procedures allow for further development of the EUs unique transnational protection of basic rights. The realization of basic human rights through the OMC regards them as unfolding along with the novel sets of shared challenges that often do not provide lucid answers for how best to realize rights when abstract republican norms such as freedom and equality offer little direction for their concrete implementation. Pertinent examples include escalating trends in regional immigration that blur distinctions between members and non-members, entrenched cycles of social and economic domination through regional interdependence, and the growing Balkanization of minorities with the recent demise of the Soviet and Yugoslavian federated republics. Therefore, the experimentalist conception of rights allows for instances of rolling best practice rights when the constitutionality of a new practice is uncertain or unknown.22

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European Journal of Political Theory 5(2) This rights-based, revisionist response to the democratic deficit allows for forms of democratic participation that do not conform to the model of noninterference in the popular sovereignty of a state. This confronts an error held in common by federalists and skeptics who despite their differences both appealed to noninterference in the sovereign self-legislation of a polity. In contrast, proponents of the revisionist view argue that democracy will take different institutional forms according to the particularities of its membership, location, and history.23 Revisionists concede that given the (1) absence of clearly demarcated borders, (2) the lack of an explicit constitution, and (3) its multiple demoi, there are clear reasons for the pessimism advanced by skeptics against federalists. However, revisionists move beyond the basic terms of the federalist versus skeptic debate by rejecting the plausibility for a democratic order to emerge out of the EU when couched in terms of the language of freedom as noninterference. Those who opt for a democratic interpretation of the revisionist approach highlight examples in the history of EU institutions that suggest an array of alternative possibilities where enhanced democratic legitimacy through novel forms of political participation may be developed. 1. Nothing about democracy, even representative democracy, requires that territorial representation is an absolute necessity. Given the extreme complexity of social and economic ties of interdependence in the EU as a modern global economy, alternatives to conventional territorial representation are emerging in their most developed form in the European Union.24 In accord with the conception of freedom as nondomination, a wide dispersal of privileges and entitlements is already granted in the EU by virtue of relations of interdependence that usually do not obey conventional territorial boundaries. Revisionists contend against advocates of subsidiarity that the sovereign jurisdictions set out by member state borders can in some cases be interfered with legitimately by higher level EU institutions. For example, interference is justified if these artificially constructed limits are found to subject groups to arbitrary domination and/or exclusion, particularly those stateless groups that historically have lacked a territorial basis for political representation. Most recently, for example, Roma parties have organized politically in order to win seats in the European Parliament, giving them political power over territorial nation states that have historically not granted them equitable rights to political inclusion when doled out exclusively in terms of territory or region. This and other such examples like Basque representation in the Committee of Regions and Turkish representation in the Forum of Migrants would demonstrate clear cases of novel forms of effective political participation to answer to the deficit in the absence of appeal to noninterference within fixed borders.25 2. Despite the pending status of the ratification process of a European Constitution, drawing on the system of rights already present is to tap into the features of this novel system that are already part of the material constitution of the EU even if they are not yet explicitly formalized. As a way to disperse and

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Bowman: The European Union Democratic Deficit decentralize sites of participation in policy formation, revisionists emphasize that, to this day, the EU balances multiple sovereignties in the absence of a single apex of constitutional authority. 3. Revisionists also argue that the presence of multiple demoi could allow postnational democracy to flourish by decoupling the conventional links between exclusive popular sovereignty, legitimacy, citizenship, and the territorial nation state.26 Given again the potential for the realization of basic rights on the rolling model of the OMC, the administrative and cultural diversity of the EU member states can be preserved and even increased insofar as minimal targets set by best practice benchmarks are met or surpassed. Again, the conception of freedom as nondomination calls for transnational institutions that grant rights to interfere in the decision-making practices of the majority political culture when it is found to institute measures of arbitrary exclusion. In particular, in the examples to follow, we will find that nondomination offers an alternative to practices of noninterference that all too often employ subsidiarity to entrench member states as sovereign over their permanent minorities and third country nationals.

Overcoming the Revisionist Dilemma?

As a potential challenge to democratic revisionists, skeptics and more conventional federalists pose a difficult conceptual dilemma: without a single locus of popular sovereignty and a shared political identity, what is left of the EU polity for it to remain even recognizable as a feasible form of democratic governance for its citizens?27 Revisionists reply that there is a clear body of evidence for democratic practices to increase the legitimacy of the EU at the transnational level in ways that are still relatively familiar to its citizens. The first is political representation through elections: directly through the European Parliament and indirectly through the Council of Ministers. The second element is a history of ongoing cooperation through the creation of discursive practices between the diverse peoples of Europe in the face of unforeseen problematic situations. These responses to real and potential crises have allowed its citizens repeatedly to forge cooperative institutional links between its diverse peoples (emphasis on the plural) that have slowly evolved into the emerging transnational democratic institutions of the EU. With respect to a third overarching element, revisionists highlight that one practice held in common by the two previous features of transnational democratic rule recognizable to citizens is the daily exercise of EU citizenship through enhanced political rights to deliberative participation. The concrete praxis of EU citizenship is the best way to promote the republican ideal of freedom as nondomination and thus serves to legitimate the emerging statuses associated with incurring the fundamental right to diverse forms of political participation within the EU institutional complex. Each distinct form of participatory activity comes with the unprecedented postnational right to EU citizenship currently protected

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European Journal of Political Theory 5(2) in the European Charter of Fundamental Rights and the established framework of treaties. Revisionists thus provide a rights-based account of democratic legitimacy, arguing that citizenship rights can connote allegiance to multiple forms of differentiated membership and conferred statuses in the novel institutions of the EU. After all, it is relatively uncontested that one can already claim simultaneous forms of citizenship in cities, states, and regions. Revisionists question why the scope of citizenship rights should not be extended one more level beyond the sovereign nation state. This multileveled conception of European citizenship is primarily a pragmatic notion that focuses in particular on the democratic potentials of what diverse participants can do in their transnational political activities. For this revisionist track to offer robust democratic possibilities beyond the return to the conventional nation state, it will require a new notion of democratic citizenship at multiple levels that coexists with rather than replaces the univocal views of political identity previously linked to national citizenship. For further development of this revisionist line of argument along republican lines, a brief mention of the revisionist work of Ulrich Preuss provides a good point of departure. Preusss twofold notion of both (a) coping with and (b) gradually reducing what he terms citizen alienage goes some distance in the attempt to develop a notion of citizenship that balances republican universalism with multicultural diversity. His view of multiple citizenship rights and statuses strengthens transnational democratic legitimacy through shared exercises of EU and member state citizenship rather than looking for EU citizenship to supersede or supplant national citizenship. With respect to (a) coping with diversity as a major challenge to historical republicanism, he finds that:
Alienage will probably be the hallmark of Union citizenship, a kind of permanent and structural cognitive dissonance which, in contrast to the American case, is not likely to disappear in a unitary national culture in the foreseeable future. In contrast to most federal states, Union citizenship is not likely to supersede national citizenship.28

And with respect to (b) a reduction of alienage through increased social and political integration, he argues for the establishment of nondominating relationships out of the fact of complex social ties of interdependence:
. . . both statuses will co-exist, representing two different principles of political organization. National citizenship uses territoriality as the basic means of integrating individuals within society. Union citizenship presupposes a more abstract polity, whose membership serves mainly to integrate individuals who, by all traditional standards, are . . . privileged foreigners.29

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This multifaceted notion of citizenship encourages citizens from distinct member states to learn from and respect one another through nondominating republican institutions of shared political participation, despite all their differences. Preusss comments thus provide more comprehensive support for the initial

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Bowman: The European Union Democratic Deficit line of argument that freedom construed as noninterference is an implausible ideal for the overlapping sovereignties of this complex institutional order. A more dispersed model of citizenship and popular sovereignty is possible under this differentiated institutional form only insofar as member states drop the imaginary construct of exclusive jurisdiction over their powers of autonomous legislation and opt instead for a view of freedom as nondomination. While conventional theories of republicanism have trouble making sense out of such postnational forms of citizen participation within and between overlapping jurisdictions such as in the opening example of decision-making in the OMC revisionists like Preuss rather focus on the practices already in place. One simple example of such a complementary coexistence of citizenship rights and statuses is that distinctly European rights currently listed in the Charter of Fundamental Rights are not merely reducible to the rights and statuses incurred by membership in any given member state. Again, the revisionist proposal draws upon a pragmatic notion of citizenship that seeks to expand the prospects of what citizens can do with this system of basic rights. An example of possessing Preusss aforementioned status of privileged foreigner is Article 46 of the European Charter, the right to Diplomatic Protection:
Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as nationals of that Member State.

In such an example, this distinctly European right goes some distance in providing a pragmatic pay-off for the universalistic statuses incurred through European citizenship. However, instead of the creation of a shared political identity, something more akin to Preusss reduction in alienage would ensue insofar as a unique relationship is sustained between a national of a given member state and the diplomatic authorities of another distinct member state. Answering how the abstract republican ideal of freedom as nondomination can be further realized in concrete policy initiatives that continue to reduce alienage will lead then into the final section that considers whether such a status of privileged foreigner can also be extended to resident immigrants and permanent minorities in the EU.

The Double Dilemma: Concluding Example from European Immigration

While the political practices of representation, ongoing cooperation, and citizenship are relatively familiar democratic exercises that EU citizens can draw upon to face the democratic deficit, there are also additional practices that, due to their institutional novelty, may not initially be recognizable by citizens as democratic forms of participation. It is precisely these institutional novelties that allow revisionists to respond politically to at least one key feature of the democratic

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European Journal of Political Theory 5(2) deficit where federalists and skeptics fall short: the increasing economic and social dependence of the EU on its estimated 30 to 60 million immigrants and third country nationals. A revised threshold of legitimacy in terms of rights to political nondomination counters this aspect of the democratic deficit at the transnational level in order to face the ensuing double dilemma that is especially unique to the problems that emerge through enhanced levels of immigration. Jo Shaw describes the dilemma in terms of the potential for further European social disintegration if alienage between citizens and non-citizens is not overcome: This double dilemma comprises the need to reinforce democratic traditions by including new waves of immigrants into national citizenship, at a time when internal solidarity is at its weakest.30 In order to apply an expanded view of political participation to the problems posed by immigration, revisionists again appeal to novel forms of political inclusion to incorporate immigrants politically instead at the more encompassing transnational level. Responding to the double dilemma in a manner still consistent with republicanism will require revisions of some of the basic features of this tradition, leading into a concluding discussion of republican multiculturalism.31 In contrast to federalists and skeptics, revisionists therefore argue that the rights to political participation associated with EU citizenship need not be confined exclusively to citizens of member states and need not fall under a shared form of European-wide solidarity, but rather should involve both national and European measures of inclusion to achieve republican forms of integration without cultural assimilation. New republican practices are needed because currently there is no Europeanwide constitutional consensus on the rights of immigrants and permanent national minorities that have been agreed upon at the EU level.32 Individual member states have widely divergent approaches to the minorities and immigrants. On conventional interpretations of subsidiarity, both groups would fall within the sovereign borders of member states under the jurisdiction of their respective constitutional traditions. However, the proposals provided through the ensuing examples will differ, focusing specifically on the political incorporation of Turkish immigrants and permanent minorities at the EU level in order to develop a form of multicultural republicanism consistent with revisionist practices. As an encouraging recent development to support a revisionist interpretation of the status of immigrant and minority rights, the aforementioned OMC is a general method for the implementation of laws and policies in the European Union that scholars have shown has an increasing salience to the status of human rights for immigrants and permanent minorities in the EU.33 In addition to its closer application to the real empirical state of affairs for the realization of these rights, the Open Method of Coordination (OMC) holds a greater normative potential for the democratic realization of rights from multiple levels of institutional accountability than its alternatives.

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Bowman: The European Union Democratic Deficit As real cases to support the possible extension of the OMC to immigrants and permanent minorities, there is an evolving precedent of basic rights to nondiscrimination and cultural diversity within most of the member states of the EU. According to the accepted procedures of the OMC, the best practices achieved by member states could eventually serve as benchmarks for the European-wide implementation of the rights of national minorities and resident immigrants that now also fall under Articles 21 and 22 of the EU Charter.34 And as an even more significant development that would revise the entire institutional scheme for protecting basic rights, the Commission has recently recommended transforming the Vienna Monitoring Center on Racism and Xenophobia into a more expansive human rights monitoring agency for all rights embodied in current EU legislation.35 In potential reply to the double dilemma of incorporation of immigrants into political membership, this human rights agency would thus put enhanced monitoring pressure on member states to respect basic rights to non-discrimination of all residents.36 In addition, some non-citizens would also fall under these monitoring standards since applicant states such as Turkey would be accountable to matching the prevailing practices of member states in their recognition of the religious, political, and cultural rights of minorities if they hope to increase their chances of pending EU accession.37 Although the scope and extent of such monitoring would have to proceed on an experimental basis, the European Convention of Human Rights already entitles foreigners without nationality of any EU member state to appeal to the European Court of Human Rights and the EU Court of Justice for the ongoing juridical recognition of rights.38 Instead of the conventional republican appeal to shared political identity, albeit vague at this point, effective minority political participation can be invoked as a best practice benchmark for member states to compare in emerging cases of dual and plural sovereignty. The relevant rights to non-discrimination would receive their expression in different member state legal and institutional sites in ways that circumvent traditional forms of republican political membership secured by abstracting from cultural particularity.39 A principle of effective participation as a monitoring benchmark can protect the rights of minorities if denied a minimal degree of representation in the legislature by the majority in power. While the following examples are limited to member state parliaments, these cases could serve as a model for how to conceive of deliberation in the European Parliament in the absence of a single locus of popular sovereignty. In such cases, the right of minorities to effective participation overrides the majoritarian will of the people specifically when their power is found to be arbitrary and foster political domination.40 For example, in Poland, the German minority is exempt from the 5 percent minimum threshold for the election of deputies to the Polish parliament, whereas in Latvia and Estonia ethnic Russians are granted citizenship rights to vote and run for office despite their lack of fluency in the native language.41 These

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European Journal of Political Theory 5(2) examples highlight plural national identities receiving rights to effective political participation and representation outside the framework of a shared political identity and in the absence of any particular European-wide shared political identity. The precedent of Russian representation in Latvia and Estonia offers an instance of multicultural republicanism that even allows for the effective participation of nationalities outside those holding official recognition as current EU member states. A pertinent example of a related violation of such a right of minorities would be the recent political move to undermine rights to effective participation of Turks by the majority political culture in Greece. In this instance of political domination, members of the current Greek Parliament have raised the threshold above its minimum 5 percent of the Greek population to prevent Turks from winning seats.42 In such a scenario, EU-level human rights institutions could appeal to the right to non-discrimination in Article 21 of the EU Charter. This would allow EU-level monitoring institutions to interfere legitimately in the political affairs of Greece in order to keep the threshold at 5 percent and permit the Turkish minority effective political representation. Moreover, as additional support for my democratic rendition of minority rights in the EU as a multiperspectival polity, these rights are not merely legal-juridical as Turkish minority groups in the EU have drawn on both formal legal institutions and the emerging institutions of civil society to organize politically Europeanwide. Rather than promoting the relations of noninterference preferred by advocates of subsidiarity, Turkish minorities refuse to remain unrecognized by member state political cultures. Instead, they seek political recognition in different member states in distinct ways that institutionalize forms of democratic participation through the distinct legal cultures of each member state. For example, in France, in light of its secular republican tradition, Turkish minorities there seek enhanced rights to religious expression for a more multicultural rendition of republicanism.43 In a different claim to rights to political nondomination, in Germany, in light of its historical ties between nationality and citizenship rights, Turks seek rights to dual citizenship.44 Finally, with respect to Turkeys own treatment of its minorities, a 1998 judgment of the European Court recently upheld the right of the minority Socialist Party in Turkey to the freedom of association as ensured by the European Convention on Human Rights.45 This overturned the prior judgment of the Turkish Constitutional Court that found the Socialist, Kurdish-leaning party to be acting contrary to Turkish constitutional tradition by calling for the radical transformation of Turkey into a federal state. Such ongoing monitoring of Turkish practices by the formal procedures of the European Court and the more informal European-wide mobilization of Turkish immigrants residing in EU member states has led to the first ever public debates in Turkey concerning the status of its minorities in light of possible EU membership. These examples thus serve to show that, in contrast to the assumed preference for the local in responses to the democratic deficit that appeal to

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Bowman: The European Union Democratic Deficit subsidiarity,46 EU-level institutions can in some instances encourage member states and applicant states to realize human rights better and when fostering the enhanced participation of diverse political programs also make these states more democratic.47 This multileveled example of the realization of human rights occurs when minority rights, religious, and cultural freedoms influence a number of levels and apply to dominated groups that extend across national borders. These legal spheres emerge neither exclusively at the national nor the supranational level but rather come about through both taken in concert. On the one hand, they emerge through member and applicant state institutions, and on the other hand, they are also realized only by virtue of appeal to rights to political participation embodied in the EU Fundamental Charter and the European Convention on Human Rights. Rights to effective political participation for minorities can therefore derive from an array of monitoring institutions that include the Commission, member states, EU-level courts, and transnational migrant groups in various European public spheres. Such permanent monitoring practices would thereby foster opportunities for the pragmatic formulation of new spheres of legal activity to socialize excluded individuals into rights-promoting institutions from an array of possible levels in accord with modes of integration characteristic of multicultural republicanism.

Conclusion
The revisionist protection of these political rights to a more differentiated model of solidaristic inclusion extended to immigrants would thus present a diversion from both federalist and skeptic models for facing the democratic deficit in the EU that with their state-like qualities admitted difficulty conferring such political rights on immigrants. Their shortcomings were ultimately due to the overt tie to a shared political culture, common political identity, and practices of subsidiarity normally associated with conventional forms of popular sovereignty. In the end, the strict adherence to popular sovereignty and autonomous self-legislation as the juridical protection of human rights ultimately undermined normative standards of equal political participation for excluded persons affected by European-wide policies and ties of social and economic interdependence. On my multicultural republican account of political participation, those affected by EU law and policy who cannot claim EU citizenship rights must still be able to expand the system of rights to greater levels of egalitarian inclusion when arbitrarily dominated by forms of decision-making that do not track their interests. In this manner, basic social and political rights find their equal guarantee at the more inclusive level of the European Union and serve to protect immigrants already enmeshed in the networks of transnational civil society, including for example guest workers and third country nationals. As for one clear point of concession to federalists, there is indeed an element of

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European Journal of Political Theory 5(2) conventional federalism in my approach. The right-based extensions of democratic citizenship proposed ultimately draw their binding force from EU-level institutions and the supremacy of basic rights embodied in the EU Charter. These entitlements foster the social and material conditions for the establishment of nondominating relations between overlapping and sometimes asymmetrical political allegiances. My extension of the revisionist track thus looks to encourage the ongoing generation of multiple and overlapping sources of identity that expand a federal system of rights in the EU in concert with the variability of increasing trends towards multiculturalism. However, in the attempt to develop a revisionist source of democratic legitimacy beyond freedom as self-legislation and noninterference, European citizenship begins to offer distinct democratic possibilities not envisioned by federalists or skeptics. In the final analysis, both of these latter approaches failed in their requirement of appeals to subsidiarity that problematically focus on what a people already is or constitutional norms and objectives already laid out in formal legislation. As an attractive alternative, revisionists point to the emerging practices of postnational citizenship made possible by the OMC that can both preserve national differences, and in addition, perhaps continue to move beyond Europes violent history of rampant nationalism. Democratic revisionists therefore accept the EU as a democratically legitimate polity insofar as it promotes cooperative projects that identify citizens with one another as European and national citizens, in addition to extending obligations of justice also to privileged foreigners. Each individual falling within such groupings would enjoy as many rights and privileges as the dynamic social, economic, and legal ties of interdependence normatively require under this more inclusive republican view of equal rights to nondominating political participation. Notes
1. For the most developed version of this view, see e.g. Andreas Follesdal (2000) Subsidiarity and Democratic Deliberation, in Erik Eriksen and John Fossum (eds) Democracy in the European Union: Integration through Deliberation?, pp. 85110. London: Routledge. See also Follesdal (1998) Survey Article: Subsidiarity, Journal of Political Philosophy 6(2): 190219. 2. I agree with Daniel Elazars (1998) relevant claim in Constitutionalizing Globalization: The Postmodern Revival of Confederal Arrangements. New York: Rowman & Littlefield. He argues that there is still too much statist hierarchy embedded in European political culture and, consequently, political thought (p. 94). 3. For a fuller exposition of republican freedom as nondomination, see Philip Pettit (1997) Republicanism. Oxford: Oxford University Press. For extensions of this view of freedom to the European Union, see James Bohman (2002) How to Make a Social Science Practical: Pragmatism, Critical Social Science and Multiperspectival Theory, Millennium: Journal of International Studies 31(3): 499524. Bohman (2004) Constitution Making and Institutional Innovation: The European Union and Transnational Governance, European Journal of Political Theory 3: 31537.

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4. For the first discussion of the EU as a multiperspectival polity, see John G. Ruggie (1998) Constructing the World Polity: Essays on International Institutionalization. London: Routledge. See also Bohman (2002, in n. 3). 5. Joseph Weiler (1999) European Democracy and its Critics: Polity and System, in The Constitution of Europe, pp. 26485. Cambridge: Cambridge University Press. While Weiler does not use the term multiperspectival, he refuses to follow federalists or Euroskeptics in their unitarian and monolithic approaches to settling upon a theoretical framework for assessing the democratic qualities of the EU. Due to the threepillar structure of the EU, Weiler opts instead to speak in terms of three interspersed modes of governance: international, supranational, and infranational, p. 271. 6. See e.g. Kostas A. Lavdas (2001) Republican Europe and Multicultural Citizenship, Politics 21(1): 110. John Schwarzmantel (2003) Citizenship and Identity: Towards a New Republic. London: Routledge. For a multicultural approach to republicanism with France as the model, see Jeremy Jennings (2000) Citizenship, Republicanism and Multiculturalism in Contemporary France, British Journal of Political Science 30: 57598. 7. Pettit (n. 3), p. 24. 8. Ibid. p. 55. 9. See Joshua Cohen and Charles Sabel (2003) Sovereignty and Solidarity: EU and US, in Jonathan Zeitlin and David Trubeck (eds) Governing Work and Welfare in a New Economy: American and European Experiments, pp. 34575. New York: Oxford University Press. The authors explain (p. 347) that in the Open Method of Coordination: . . . plans are periodically criticized by a panel of expert officials from other Member States in light of other plans, and each countrys performance is judged against its own goals, the performance of others, and its response to earlier rounds of criticism . . . the goal here too is mutual correction and not uniformity. 10. For a similar view of human rights as responses to shared problems, see Jrgen Habermas (2001) Legitimation through Human Rights, in The Postnational Constellation: Political Essays, tr. Max Pensky. Cambridge, MA: MIT Press. 11. Cohen and Sabel (n. 9), p. 346. 12. Nick Bernard (2003) A New Governance Approach to Economic, Social, and Cultural Rights in the EU, in T.K. Hervey and J. Kenner (eds) Economic and Social Rights Under the Fundamental Charter of Social Rights of the European Union, pp. 24768. Oxford: Hart Publishing. Olivier de Schutter (forthcoming) The Implementation of Fundamental Rights through the Open Method of Coordination, in Olivier de Schutter and Simon Deakin (eds) Social Rights and Market Forces: Is the Open Method of Coordination of Employment and Social Policies the Future of Social Europe? Brussels: Bruylant. 13. For an application of this three-step process of benchmarking to US constitutionalism, see Michael Dorf and Charles Sabel (1998) A Constitution of Democratic Experimentalism, Columbia Law Review 98: 267473, 459. 14. Ibid. p. 287. 15. Neil MacCormick (1997) Democracy, Subsidiarity, and Citizenship in the European Commonwealth, Law and Philosophy 16: 33156. For a similar view, see also Bohman (2002 and 2004, in n. 3). 16. See Thomas Pogge (1998) How to Create Supra-National Institutions Democratically: Some Reflections on the European Unions Democratic Deficit, in Andreas Follesdal and Peter Koslowski (eds) Democracy and the European Union, pp. 16085. Berlin: Springer Verlag. Also see Andreas Follesdal (1998) Democracy, Legitimacy, and Majority Rule in the European Union, in A. Weale and M. Nentwich (eds) Political Theory and the European Union: Legitimacy, Constitutional Choice and Citizenship, pp. 3448. New York: Routledge.

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17. This view is held by skeptics such as Robert Dahl of the prospect for a democratic order to emerge out of the European Union. See his (1999) Can International Organizations be Democratic? A Skeptics View, in Ian Shapiro and Casiano Hacker-Cordon (eds) Democracys Edges, pp. 1936. New York: Cambridge University Press. I will look at the skeptical view more closely in the next section. 18. Here a distinction is necessary between the European Union (EU) and the European Community (EC). The Maastricht Treaty divided EU competencies into three separate pillars of decreasing degrees of Community influence over the respective realms of policy. The Community Method generally applies only to first-pillar issues of the EC that are largely economic, social, or environmental, including international trade. It does not apply to the second pillar, Justice and Home Affairs (the interaction between European Union and member state judiciary) or to the third pillar: Common Foreign and Security Policy. 19. Consider Robert Dahl (n. 17) as a philosophical advocate of the skeptical view of the EU. See also Dieter Grimm (1995) Does Europe Need a Constitution, European Law Journal 1: 282302. 20. Philippe Schmitter (2000) Designing a Democracy for the Euro-Polity and Revising Democratic Theory in the Process, p. 236, in I. Shapiro and S. Macedo (eds) Designing Democratic Institutions, pp. 22450. New York: New York University Press. 21. Ibid. p. 239. For a similar view, see MacCormick (n. 15). See also Richard Bellamy and Dario Castiglione (2004) Legitimizing the Euro-Polity and its Regime, European Journal of Political Theory 2: 734. In addition, see the following revisionist works from advocates of democratic experimentalism. Cohen and Sabel (n. 9). Dorf and Sabel (n. 13). Oliver Gerstenberg and Charles Sabel (2002) Directly-Deliberative Polyarchy: An Institutional Ideal for Europe?, in Christian Georges and Renaud Dehousse (eds) Good Governance in Europes Integrated Market, pp. 31641. Oxford: Oxford University Press. Oliver Gerstenberg (1997) Laws Polyarchy: A Comment on Cohen and Sabel, European Law Journal 3: 34358. 22. Dorf and Sabel (n. 13), p. 445. 23. R. Bellamy and D. Castiglione (2000) The Uses of Democracy, p. 72, in Erik Eriksen and John Fossum (eds) Democracy in the European Union: Integration through Deliberation? London: Routledge. 24. For a more complete development of such an idea of unbounded territoriality that is consistent with the revisionist approach to the democratic deficit, see Ruggie (n. 4), p. 27. 25. For a good discussion of the Forum of Migrants, see Rika Kastoryano (2003) Transnational Networks and Political Participation: The Place of Immigrants in the European Union, in Mabel Berezin and Martin Schain (eds) Europe without Borders: Remapping Territory, Citizenship, and Identity in a Transnational Age, pp. 6485. Baltimore: Johns Hopkins University Press. See also Ruggie (n. 4), pp. 1901. 26. For an advocate of this branch of revisionism, see in particular Ulrich Preuss (1996) Two Challenges to European Citizenship, in Richard Bellamy and Dario Castiglione (eds) Constitutionalism in Transformation: European and Theoretical Perspectives, pp. 12240. Oxford: Blackwell Publishers. For a similar view of EU citizenship, see Jo Shaw (1998) The Interpretation of European Union Citizenship, Modern Law Review 61: 293317. 27. Although Schmitter is a revisionist democratic theorist, he raises a similar remark (n. 20), p. 242: If the EU as a nonstate will have to come up with novel institutions if it is to democratize itself, then it will run the risk that both politicians and citizens may find it difficult initially to recognize these novel rules and practices as democratic. 28. Preuss (n. 26), p. 138. 29. Ibid.

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30. Shaw (n. 26), p. 317. 31. For an opposing view, see Schwarzmantel (n. 6), p. 50. He thinks the forms of inclusion characteristic of democratic revisionism cannot provide an enduring basis for democratic community. I argue that the OMC can provide the forms of reciprocity and solidarity he seeks and the system of rights in the EU can offer the decentered participation required for something analogous to his new republic. 32. Will Kymlicka (forthcoming) The Evolving Basis of European Norms of Minority Rights: Rights to Culture, Participation, and Autonomy, in John McGarry and Michael Keeting (eds) European Integration and the Nationalities Question. New York: Routledge. 33. See Alexander Caviedes (2004) The Open Method of Coordination in Immigration Policy: A Tool for Prying Open Fortress Europe?, Journal of Public Policy 11(2): 289310. For a good discussion of minority rights and the OMC, see Guido Schwellnus Much Ado about Nothing? Minority Protection and the EU Charter of Fundamental Rights, in Constitutionalism Web-Papers: ConWEB No. 5/2001 found at http://les1.amn.ac.uk/conweb/. 34. However, due primarily to the relative success of the OMC in other policy fields, at present the member states of the EU are reluctant to follow the recent recommendations of the Commission to subject immigration policy to the OMC. Caviedes (n. 33). 35. Commission of the European Communities (2004) Communication from the Commission: The Fundamental Rights Agency Consultation Document, Brussels, 25 Oct. COM (2004): 693. 36. Kostaryano (n. 25), p. 82. 37. A recent study of modern Turkey found that unsettling elements of its recent history might have been subverted if it had implemented basic constitutional principles enshrined in the set of treaties that contributed to the formation of the modern Turkish state. Examples from the Lausanne Treaty of 1923 which serves as the basis for the modern Turkish state and its foreign relations include tolerance towards all religions and non-discrimination in the use of minority languages. 38. Joseph Weiler (1998) points to the case of Gayusuz versus Austria that went to the European Court of Human Rights and led to the extension of social security benefits to third country nationals (1998) An Ever Closer Union in Need of a Human Rights Policy, European Journal of International Law 9: 658723, 719. 39. Jennings (n. 6), pp. 58495. 40. Pettit (n. 3), p. 180. 41. Kymlicka (n. 32), p. 18. 42. Ibid. p. 19. 43. Jennings (n. 6), pp. 59394. 44. Rika Kastoryano (2002) Citizenship: Beyond Blood and Soil, in Mohsen-Finan Leveau and Wihtol de Wenden (eds) New European Identity and Citizenship, pp. 10116. Burlington: Ashgate Publishing. 45. Bruno de Witte (2002) Politics versus Law in the EUs Approach to Minorities, in Jan Zielonka (ed.) Europe Unbound: Enlarging and Reshaping the Boundaries of the European Union, pp. 13760, p. 145. London: Routledge. 46. For such approaches to the democratic deficit, see MacCormick (n. 15) and Follesdal (n. 1). A third view of the EU federation advanced by Jrgen Habermas is to see human rights and popular sovereignty as co-constitutive at the EU level. The emphasis on basic rights is closer to my own view; however, his European-wide political identity is not as amenable to the incorporation of third country permanent residents as my more plural view. See Habermas (1998) Does Europe Need a Constitution? Response to Dieter Grimm, in Ciarin Cronin and Pablo De Griff (eds) Inclusion of the Other, pp. 15561.

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Cambridge, MA: MIT Press. (2001a) The Postnational Constellation, in The Postnational Constellation: Political Essays, tr. Max Pensky, pp. 58112. Cambridge, MA: MIT Press. (1999) The European Nation-State and the Pressures of Globalization, New Left Review 235: 4654. (2001b) Why Europe Needs a Constitution, New Left Review 11: 526. 47. Bruno de Witte (n. 45), p. 145, emphasizes that this was precisely the justification of the judgment given by the European Court which found that It is of the essence of democracy to allow diverse political programs to be proposed and debated, provided that they do not harm democracy itself.

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