EU construction — страница 4

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to predict and hence assess. Nevertheless, institutional theory may throw some light on these issues. For instance, the case against voting on representative legislators cannot rest with Rousseau’s scornful dismissal of voters being free only on the day they vote. Rather, the issue must be whether such a method is better than the alternatives in terms of securing the interests at stake, where we consider the incentive effects on voters and representatives. Another relevant example concerns the centralising effects of European institutions.   Against mixed models   In mixed models of government one body enjoys legislative, executive and judicial powers. To be sure, even in states which split powers the executive and legislative functions are not always clearly

aligned with different bodies. Often the executive not only executes laws, but initiates legislation and makes policy, while the legislative often reviews and influences the execution of policy (Vibert 1995). However, the concern for transparency and avoidance of standard threats caution against mixed models of government.   In contrast, those approaches which stress the pervasive need for democratic participation and majority rule might regard all attempts at separating powers as anti-democratic and hence illegitimate. The separation of powers puts some aspects of government out of reach of representatives, and hence of the public.   Systemic effects are unpredictable at the level of day-to-day decision making. Second, citizens may reasonably want guarantees against

likely threats of abuse. Institutions and the allocation of power must be tailored with these sources of instability in mind. To be sure, the representatives and executives must be virtuous, but citizens may reasonably insist on protection against likely threats- including the possibility that some will bend the rules inappropriately.   The case for majority mechanisms in the EU.   What role should majoritarian mechanisms play at the level of the EU? When decisions are moved to the European level, we should suspect that majority rule as a means of accountability and control at the same level secures a better match between the decisions and those affected. Thus majority procedures are often regarded as an improvement over the current situation in the EU.   European

level and there are several competing additional suggestions for how to increase majoritarianism in the European institutions. In the following I indicate how contractualism approaches these issues.   The commission has multiple functions:  promotion of the common interest, monopoly of legislative initiative and guardianship of Community law.  Even though the commissioners are regarded as civil servants with loyalty only to the EU and the `European interest`, they frequently defend national positions in the Commission.  There is then, representation in a weak and direct sense, and the Commission decides by majority vote.   The appropriate focus for increased democratic rule should not therefore be the Commission. When the Treaty of Rome established,

member states were regarded as the most likely sources of inappropriate threats to the regime. However, the EU is developing from being institutions created for the effective pursuit of private interests, towards a union with political aspirations guided by a conception of the common good suitable for states.     Against majority rule?   We now turn to consider some constraints on the role of majority rule. Contractualism is not of itself sceptical of anti- majoritarian institutions in the EU. I here sketch arguments concerning two issues: the legitimacy of constitutional constraints on the scope of majority rule; and the legitimate role of states´ powers, possibly overruling a majority of the citizens in Europe.   A constitution with rights?  

Should there be a European constitution with a bill of rights? Few deny the need for clear `constitutive rules` which specify the various government bodies and their legal powers. The lack of a European Constitution in this sense prevents transparency, which all agree is a minimum condition for legitimacy.   Bellamy argues instead for unentrenched rights, claiming that individuals are more likely to accept the legitimacy of decisions they disagree with if they feel that they have been involved in making them and there are opportunities for reopening the debate in the future. Democratic politics offers the possibility of a fair compromise for the resolution of issues which allow for reasonable disagreement. Moreover, democracy protects rights, by institutionalising procedures