Democracy, national administration and the European Constitution
One of the founding fathers of modern democratic theory, the American political scientist Robert A. Dahl, has identifi ed two great democratic transformations. 1 The fi rst refers to the process by which government by the many was instituted in democratic or republic city-states in Ancient Greece. In the second transformation, the idea of democracy was applied to the domain of the national state. Dahl also asked whether a third transformation was possible, one which included the application of the idea of democracy to a transnational state. Although Dahl, in 1989, was rather pessimistic with regard to this third transformation, he nevertheless saw the potential for developing democratic ideas and practices within the European Community. 2 In the following, I explain how this study addresses certain aspects of what could be seen as an emerging third democratic transformation within the context of the European Union. This allows me to outline the theoretical backdrop to the subsequent analyses of how democracy is affected by confrontation between the right to free movement and the use of national administrative discretion. Two decades after Dahl’s analyses, the democratic qualities of the European Union remain highly contested. Notwithstanding this, the Union could still be seen as fertile ground for a third democratic transformation. There are, at the very least, some elements of the Union which can be seen as symptomatic of an emerging, albeit incomplete, institutionalisation of democratic ideals beyond the borders of nation states. One such element is the Union’s renewed commitment to democratic principles in the Treaty on European Union, after the Lisbon revisions. 3 Other elements encapsulate the capacity of the Union to include
the affected interests in decision-making processes that have effects beyond the borders of individual states (external effects), to help states to accomplish policy goals shared by the broad majority of their electorate, and to protect the freedom of private parties from governmental intervention. This could be seen as enjoying some level of legitimacy independent of the democratic institutions of the Member States, as it itself probably contributes to the protection of certain democratic ideals in a context in which both the nation states and their peoples have become highly interdependent. At the same time, the EU and its legal order suffers from a range of problems with regard to democracy. One such problem is the challenge that it poses to the autonomy of national governing-institutions operating within constitutional and democratic frameworks. This could undermine the application of the idea of democracy to the domain of the nation state. This problem could be seen as a corollary of any process which applies the idea of democracy to polities beyond the borders of nation states. Thus, the third transformation of democracy may involve an unavoidable challenge to the application of democratic ideas within states. This could be seen as a democratic paradox of the third democratic transformation.