Markus Patberg | University of Hamburg (original) (raw)
Books by Markus Patberg
The euro crisis, rising Euroscepticism, and Brexit have once again highlighted the European Union... more The euro crisis, rising Euroscepticism, and Brexit have once again highlighted the European Union's unresolved legitimacy deficit. Increasingly, citizens claim to have been illegitimately excluded from decisions about the future of European integration. Movements such as DiEM25 call into question the authority of the states as the 'masters of the treaties'. At the same time, political theory's debate about the EU has become ever more academic. The discipline is preoccupied with the production and refinement of abstract models of democratic constitutionalism whose connection to real politics is thin. This book seeks to develop a new approach to EU legitimacy by reorienting the debate from the question of how the supranational polity should ideally be organized to the question of who is entitled to make that decision and how. To that end, it reformulates the classical notion of constituent power for the context of European integration. This account challenges conventional theoretical assumptions regarding the EU's ultimate source of legitimacy and enables political theory to put to the test the claims of those who challenge the established mode of EU constitutional politics.
Der politische Raum jenseits des Staates ist in den vergangenen Jahrzehnten zum Schauplatz folgen... more Der politische Raum jenseits des Staates ist in den vergangenen Jahrzehnten zum Schauplatz folgenreicher Prozesse der Verfassungsbildung geworden. Dabei kommt es zu Problemen der Usurpation, die überhaupt erst erkannt und einer Lösung zugeführt werden können, wenn man die Kategorie der verfassunggebenden Gewalt für die suprastaatliche Ebene neu entwickelt. Im Zentrum dieser Studie steht die Frage, nach welchen Prinzipien ein legitimer Modus der Autorisierung konstitutioneller Normsetzung organisiert sein sollte.
Journal articles by Markus Patberg
The Review of Politics, 2024
In his recent analysis of digital platforms as a medium for (democratic) political communication,... more In his recent analysis of digital platforms as a medium for (democratic) political communication, Jürgen Habermas has proclaimed a constitutional imperative to maintain a functioning public sphere -- leaving open, however, what this would require. While a growing literature develops ideas for social media reforms, these models put the cart before the horse. To restructure social media in a targeted manner, one first needs to determine the platforms' desired contribution to democracy -- which is far from obvious. Social media have a plurality of democratic affordances and can thus be assigned different, sometimes competing roles. To determine social media's place in democracy, we need to do what Habermas has failed to do: locate social media in the centreperiphery model of political communication in media society. In doing so, I argue that social media reforms should primarily aim to empower agents in the periphery.
Global Constitutionalism, 2023
In this article, I ask to what extent the Conference on the Future of Europe (CoFoE) has advanced... more In this article, I ask to what extent the Conference on the Future of Europe (CoFoE) has advanced democracy in the European Union (EU). I critically engage with the claim that the CoFoE's success should not be measured by whether it enabled constituent power, or ultimately results in treaty reforms, but by the fact that, by introducing citizens' assemblies to EU politics, it has laid the foundation for participatory democracy in the EU. Drawing on established theories of participatory democracy, I argue that this interpretation misses the point. To put forward an alternative view, I revisit James Bohman's concept of a democratic minimum. The best democratic defence of permanent EU citizens' assemblies is that they could provide citizens with the capacity to initiate deliberation about common concerns-and thus function as a nucleus for constituent power in the EU. Nevertheless, the idea should be viewed with caution, as permanent citizens' assemblies could just as well become a democratic fig leaf allowing EU institutions to reject calls for fundamental reforms. Much therefore depends on their institutional design.
Leviathan, 2023
Politische Akteure dringend zunehmend darauf, dass Staaten aus internationalen Institutionen und ... more Politische Akteure dringend zunehmend darauf, dass Staaten aus internationalen Institutionen und Abkommen austreten. Dieser Beitrag untersucht Exit-Politik hinsichtlich des Problems institutioneller Regression und formuliert eine Kritik am souveränen Voluntarismus, der vorherrschenden Vorstellung legitimer Exit-Politik, die die Gefahr des Verlusts normativer Errungenschaften nicht berücksichtigt.
Swiss Political Science Review, 2021
In this introduction, we set out what we consider the main current democratic challenges in the E... more In this introduction, we set out what we consider the main current democratic challenges in the EU and, by extension, of differentiated (dis)integration (DI). The EU needs to strike a difficult balance between being an association of states and a supranational polity. As a result, it finds itself in a continuous search for an institutional design that may count as fully democratic. Finally, the EU increasingly suffers from populist and even autocratic challenges. While DI can contribute to some of these problems, it also carries the promise of constructive solutions. We highlight some of the special issue's key insights with regard to the complex relation between democracy and DI.
Swiss Political Science Review, 2021
Since Brexit, there has been increasing interest in democratic theory in the question of the cond... more Since Brexit, there has been increasing interest in democratic theory in the question of the conditions under which reversals of European integration can be considered legitimate. So far, however, the literature is very much focused on the specific case of the United Kingdom's withdrawal from the European Union. In this article, I seek to prepare the ground for a systematic theory that clarifies, at a general level, the scope and limits as well as the actors and procedures of democratically legitimate disintegration. To that end, I map the potential democratic costs and benefits of EU disintegration. In doing so, I distinguish five types of disintegration: retreat, revocation, exit, expulsion, and dissolution. All of these measures can produce conflicts between the democratic claims of citizens and peoples. Many of these cannot be resolved but must be dealt with politically. Overall, disintegration bears more potential costs for citizens than for peoples.
Political Studies, 2020
While the emerging debate about the disintegration of the European Union focuses on descriptive a... more While the emerging debate about the disintegration of the European Union focuses on descriptive and explanatory questions, this article approaches the phenomenon from the perspective of democratic theory. Building on a concept of disintegration as a form of constitutional politics that includes various possibilities of dismantling supranational polities, I argue that disintegration gives rise to a democratic puzzle. While it must be possible, for democratic reasons, to partially or entirely reverse European integration, any such step threatens the European Union's democratic achievements. Disintegration seems to be caught between legitimate change and regression. To address this democratic puzzle, I examine to what extent European integration has produced democracy related "ratchet effects" that limit the scope for legitimate reversal. This analysis leads to three principles of legitimate disintegration that can be applied to any supranational polity and have important implications for the post-Brexit relations between the United Kingdom and the European Union.
Constellations, 2020
The debate about constituent power in the EU has so far neglected the problem of political agenc... more The debate about constituent power in the EU has so far neglected the
problem of political agency. The focus has been on the question of who
holds founding authority rather than how it could be exercised. In this
article, I examine if and to what extent transnational partisanship could
function as a vehicle for constituent power in the EU. According to a new
proposal, cross-border deliberation between between members of likeminded
parties that are in power at the national level should prepare the
ground for intergovernmental treaty making at the EU level. I argue that
this model of ‘networked’ constituent power is problematic because it
fails separate pouvoir constituant and
pouvoirs constitués. By means of a rational reconstruction of the
Democracy in Europe Movement 2025, I outline an alternative model of
extraordinary partisanship. Extraordinary partisan associations ‘co-opt’
regular parliamentary elections to acquire a mandate for a project of
constitutional change. Such an organization could enable citizens from
various member states to promote an opening up of the EU polity for the
exercise of constituent power.
Journal of European Integration, 2018
Political theory develops its normative positions on EU legitimacy with a view to what seems poss... more Political theory develops its normative positions on EU legitimacy with a view to what seems possible and acceptable under given political, social and cultural conditions. Thus, the Brexit vote should give it a pause. In this article, I discuss if and to what extent we can hold on to the claim that the EU is based on a pouvoir constituant mixte. In particular, I examine three problems that are raised by the UK's decision to leave the EU. First, I address the analytical challenge of whether 'split' popular sovereignty is refuted as a rational reconstruction of the EU. Second, I turn to the normative-theoretical challenge of whether it is a category mistake to refer to (dual) constituent power in the context of the EU. Third, I deal with the political challenge of whether pouvoir constituant mixte is prone to confuse citizens and to scare them off with excessive 'EUphoria'.
Journal of International Political Theory, 2019
Since the euro crisis, protest movements present the EU as a neoliberal hegemony that undermines ... more Since the euro crisis, protest movements present the EU as a neoliberal hegemony that undermines democracy and prevents progressive reforms. They call for acts of resistance and partial disintegration to force a renegotiation of the treaties. In this article, I ask whether these 'disruptive' political strategies can be defended as a democratic practice of constitutional politics. To that end, I turn to the notion of destituent power, according to which opposition to or withdrawal from public authority can function as a legitimate trigger for constitutional change. I systematise the emerging debate on destituent power and discuss the plausibility of competing approaches. I argue that destituent power is best understood as grounded in popular sovereignty. It denotes the right to dismantle constitutional orders without the intention to construct new ones. While this idea supports some of the acts of contestation proposed by EU protest movements, it faces a lure towards the jurisgenerative dimension of constituent power. Ultimately, the potential of a purely negativistic logic of constitutional politics is limited.
Global Constitutionalism, 2018
There is a growing sense that if the EU is to avoid disintegration, it needs a constitutional ren... more There is a growing sense that if the EU is to avoid disintegration, it needs a constitutional renewal. However, a reform negotiated between executives will hardly revitalize the European project. In light of this, commentators have suggested that the EU needs a democratic refounding on popular initiative. But that is easier said than done. Shaping the EU has been an elite enterprise for decades and it is hard to imagine how things could be otherwise. In this article, I map four public narratives of constituent power in the EU to sketch out potential alternatives. Political actors increasingly call into question the conventional role of the states as the 'masters of the treaties' and construct alternative stories as to who should be in charge of EU constitutional politics, how the respective subject came to find itself in that position, and how it should invoke its founding authority in the future. These public narratives represent a promising starting point for a normative theory that outlines a viable and justifiable path for transforming the EU in a bottom-up mode.
European Law Journal, 2017
This article presents a rational reconstruction of the practice of constitutional politics in sup... more This article presents a rational reconstruction of the practice of constitutional politics in supranational polities. In doing so, it seeks to refocus the ongoing debate about constituent power in the EU on the question of who, under what conditions, is entitled to decide on the EU constitutional order. The analysis leads to a number of principles of democratic legitimacy , which include the political autonomy of the members of the state demoi as well as the political autonomy of the members of a cross-border demos. In explicating these parallel entitlements to political autonomy, I provide a systematic justification for the notion of a pouvoir constituant mixte, according to which the citizens should take control of EU constitutional politics in two roles – as European citizens and as Member State citizens.
Constellations, 2017
In this article, I refine the discourse-theoretical account of constituent power in order to addr... more In this article, I refine the discourse-theoretical account of constituent power in order to address a problem that haunts the notion of pouvoir constituant since its earliest invocations: the theoretical conflict between openness and containment. On the one hand, the category of constituent power is tied to expectations of radical procedural and substantive openness and seems to lose its distinctive character once we set forth normative requirements for constitution-making. On the other hand, the pouvoir constituant is understood as the constitu-tion’s source of democratic legitimacy, which means that not every procedure and not every result of constitution-making can be deemed acceptable. A possible solution to this dilemma is to derive the normative standards for the democratically legitimate exercise of constituent power from the practice of founding itself. To that end, I conduct a rational reconstruction that starts out from the presuppositions of freedom and equality that underlie the real-world practice of constitution-making. In the analysis, I revise the thought experiment that leads Jürgen Habermas to the system of rights and explicate, from the participant perspective, the procedural and substantive conditions under which the exercise of constituent power presents itself as discursively justifiable.
Journal of Common Market Studies, 2017
Recent debates on democracy in the European Union revolve around a productive competition between... more Recent debates on democracy in the European Union revolve around a productive competition between accounts of demoi-cracy and regional cosmopolitanism. While the former present the peoples of the member states as the EU's subjects of legitimacy (Nicolaïdis, 2013), the latter suggest that the EU should be interpreted as deriving its authority from a single community of European citizens (Eriksen, 2014). Both of these positions have their merits, but their respective one-sidedness casts doubt on them. While the demoi-cratic interpretation does not adequately account for the EU's supranational elements, the regional-cosmopolitan reading of the European polity too easily brushes aside the continuing importance of the member state peoples (Crum, 2016, p. 11). In light of this impasse, Jürgen Habermas has recently advanced a novel account of the EU's political community. According to the idea of a pouvoir constituant mixte, the EU is based on a dual subject consisting of the community of European citizens on the one hand and the communities of state citizens on the other (Habermas, 2012, pp. 28-37; see Rasmussen, 2014). Habermas argues that this dualist notion not only provides a consistent explanation of the normative meaning of the EU's current structure but provides political theory with the key to outlining a convincing constitutional design for supranational democracy (Habermas, 2015a). While Habermas introduces a substantively new position, the term pouvoir constituant mixte has existed for some time. It first gained prominence when Anne Peters adopted it from Vlad Constantinesco and, assuming that the EU's dual constituent power is to be imagined as being composed of the peoples and the member states, criticized it as a 'misleading opposition
Journal of Common Market Studies, 2017
In this article, I elaborate a conceptual innovation that underlies, if only in nascent form, Jür... more In this article, I elaborate a conceptual innovation that underlies, if only in nascent form, Jürgen Habermas’s notion of pouvoir constituant mixte and could significantly advance research on the democratic legitimacy of EU constitutional politics: the levelling up of constituent power. According to this idea, state-level pouvoirs constituants may issue an authorization for constitutional decision-making at the supra-state level and thereby bring about a new constituent power whose composition can take a variety of forms. This conceptual framework paves the way for a systematic analysis of the EU’s pouvoir constituant and its relation to the demoi of the member states. At the same time, it renders it an open normative question who should be in charge of EU constitutional politics.
I•CON – International Journal of Constitutional Law, 2016
The normative school of global constitutionalism lacks a convincing model of constitutional polit... more The normative school of global constitutionalism lacks a convincing model of constitutional politics. As far as the democratic legitimacy of constitution-making at the supra-state level is addressed at all, scholars usually resort to democratic intergovernmentalism. According to this normative model, processes in which constitutional norms in the global realm are made or amended are democratically legitimate if they are organized as treaty-making among democratic executives, followed by parliamentary ratification. In this article, I argue that this model should be rejected because it puts the democratic legal domestication of public authority at risk. Specifically, democratic intergovernmentalism is characterized by five shortcomings: (a) it does not distinguish between norms of contractual and constitutional quality, (b) it undermines the separation of powers, (c) it breaches the division and hierarchi-zation of constituent and constituted power, (d) it disregards the deliberative dimension of democratic control and (e) it does neither provide the citizens nor their representatives with a capacity to begin. Ultimately, I suggest that a superior approach should build on the notion of constituent power.
Millennium – Journal of International Studies, 2013
In this review article, I suggest that the books under review should be conceived of as trailblaz... more In this review article, I suggest that the books under review should be conceived of as trailblazers of an emerging debate in international political theory. They all innovatively apply the concept of constituent power to the international realm and thereby contribute to establishing a new principle for the democratic legitimacy of international institutions. I argue that we should aim to develop a systematic theory of constituent power beyond the state because such a tool could considerably enhance the analytical categories of our research on democratic legitimacy beyond the state. Furthermore, I propose research questions for this new field of study, concerning conceptual, methodological and institutional aspects, and in turn apply these to the different conceptions of an international pouvoir constituant presented in the volumes under review in order to discuss their strengths and weaknesses.
Philosophy & Social Criticism, 2014
In "The Crisis of the European Union" Jürgen Habermas claims that the constituent power in the EU... more In "The Crisis of the European Union" Jürgen Habermas claims that the constituent power in the EU is shared between the community of EU citizens and the political communities of the member states. By his own account, Habermas arrives at this concept of a dual constituent subject through a rational reconstruction of the genesis of the European constitution. This explanation, however, is not particularly illuminating since it is controversial what the term ‘rational reconstruction’ stands for. This article critically discusses the current state of research on rational reconstruction, develops a new reading of Habermas’ method and invokes this account for an explanation and evaluation of the notion of a European pouvoir constituant mixte.
The euro crisis, rising Euroscepticism, and Brexit have once again highlighted the European Union... more The euro crisis, rising Euroscepticism, and Brexit have once again highlighted the European Union's unresolved legitimacy deficit. Increasingly, citizens claim to have been illegitimately excluded from decisions about the future of European integration. Movements such as DiEM25 call into question the authority of the states as the 'masters of the treaties'. At the same time, political theory's debate about the EU has become ever more academic. The discipline is preoccupied with the production and refinement of abstract models of democratic constitutionalism whose connection to real politics is thin. This book seeks to develop a new approach to EU legitimacy by reorienting the debate from the question of how the supranational polity should ideally be organized to the question of who is entitled to make that decision and how. To that end, it reformulates the classical notion of constituent power for the context of European integration. This account challenges conventional theoretical assumptions regarding the EU's ultimate source of legitimacy and enables political theory to put to the test the claims of those who challenge the established mode of EU constitutional politics.
Der politische Raum jenseits des Staates ist in den vergangenen Jahrzehnten zum Schauplatz folgen... more Der politische Raum jenseits des Staates ist in den vergangenen Jahrzehnten zum Schauplatz folgenreicher Prozesse der Verfassungsbildung geworden. Dabei kommt es zu Problemen der Usurpation, die überhaupt erst erkannt und einer Lösung zugeführt werden können, wenn man die Kategorie der verfassunggebenden Gewalt für die suprastaatliche Ebene neu entwickelt. Im Zentrum dieser Studie steht die Frage, nach welchen Prinzipien ein legitimer Modus der Autorisierung konstitutioneller Normsetzung organisiert sein sollte.
The Review of Politics, 2024
In his recent analysis of digital platforms as a medium for (democratic) political communication,... more In his recent analysis of digital platforms as a medium for (democratic) political communication, Jürgen Habermas has proclaimed a constitutional imperative to maintain a functioning public sphere -- leaving open, however, what this would require. While a growing literature develops ideas for social media reforms, these models put the cart before the horse. To restructure social media in a targeted manner, one first needs to determine the platforms' desired contribution to democracy -- which is far from obvious. Social media have a plurality of democratic affordances and can thus be assigned different, sometimes competing roles. To determine social media's place in democracy, we need to do what Habermas has failed to do: locate social media in the centreperiphery model of political communication in media society. In doing so, I argue that social media reforms should primarily aim to empower agents in the periphery.
Global Constitutionalism, 2023
In this article, I ask to what extent the Conference on the Future of Europe (CoFoE) has advanced... more In this article, I ask to what extent the Conference on the Future of Europe (CoFoE) has advanced democracy in the European Union (EU). I critically engage with the claim that the CoFoE's success should not be measured by whether it enabled constituent power, or ultimately results in treaty reforms, but by the fact that, by introducing citizens' assemblies to EU politics, it has laid the foundation for participatory democracy in the EU. Drawing on established theories of participatory democracy, I argue that this interpretation misses the point. To put forward an alternative view, I revisit James Bohman's concept of a democratic minimum. The best democratic defence of permanent EU citizens' assemblies is that they could provide citizens with the capacity to initiate deliberation about common concerns-and thus function as a nucleus for constituent power in the EU. Nevertheless, the idea should be viewed with caution, as permanent citizens' assemblies could just as well become a democratic fig leaf allowing EU institutions to reject calls for fundamental reforms. Much therefore depends on their institutional design.
Leviathan, 2023
Politische Akteure dringend zunehmend darauf, dass Staaten aus internationalen Institutionen und ... more Politische Akteure dringend zunehmend darauf, dass Staaten aus internationalen Institutionen und Abkommen austreten. Dieser Beitrag untersucht Exit-Politik hinsichtlich des Problems institutioneller Regression und formuliert eine Kritik am souveränen Voluntarismus, der vorherrschenden Vorstellung legitimer Exit-Politik, die die Gefahr des Verlusts normativer Errungenschaften nicht berücksichtigt.
Swiss Political Science Review, 2021
In this introduction, we set out what we consider the main current democratic challenges in the E... more In this introduction, we set out what we consider the main current democratic challenges in the EU and, by extension, of differentiated (dis)integration (DI). The EU needs to strike a difficult balance between being an association of states and a supranational polity. As a result, it finds itself in a continuous search for an institutional design that may count as fully democratic. Finally, the EU increasingly suffers from populist and even autocratic challenges. While DI can contribute to some of these problems, it also carries the promise of constructive solutions. We highlight some of the special issue's key insights with regard to the complex relation between democracy and DI.
Swiss Political Science Review, 2021
Since Brexit, there has been increasing interest in democratic theory in the question of the cond... more Since Brexit, there has been increasing interest in democratic theory in the question of the conditions under which reversals of European integration can be considered legitimate. So far, however, the literature is very much focused on the specific case of the United Kingdom's withdrawal from the European Union. In this article, I seek to prepare the ground for a systematic theory that clarifies, at a general level, the scope and limits as well as the actors and procedures of democratically legitimate disintegration. To that end, I map the potential democratic costs and benefits of EU disintegration. In doing so, I distinguish five types of disintegration: retreat, revocation, exit, expulsion, and dissolution. All of these measures can produce conflicts between the democratic claims of citizens and peoples. Many of these cannot be resolved but must be dealt with politically. Overall, disintegration bears more potential costs for citizens than for peoples.
Political Studies, 2020
While the emerging debate about the disintegration of the European Union focuses on descriptive a... more While the emerging debate about the disintegration of the European Union focuses on descriptive and explanatory questions, this article approaches the phenomenon from the perspective of democratic theory. Building on a concept of disintegration as a form of constitutional politics that includes various possibilities of dismantling supranational polities, I argue that disintegration gives rise to a democratic puzzle. While it must be possible, for democratic reasons, to partially or entirely reverse European integration, any such step threatens the European Union's democratic achievements. Disintegration seems to be caught between legitimate change and regression. To address this democratic puzzle, I examine to what extent European integration has produced democracy related "ratchet effects" that limit the scope for legitimate reversal. This analysis leads to three principles of legitimate disintegration that can be applied to any supranational polity and have important implications for the post-Brexit relations between the United Kingdom and the European Union.
Constellations, 2020
The debate about constituent power in the EU has so far neglected the problem of political agenc... more The debate about constituent power in the EU has so far neglected the
problem of political agency. The focus has been on the question of who
holds founding authority rather than how it could be exercised. In this
article, I examine if and to what extent transnational partisanship could
function as a vehicle for constituent power in the EU. According to a new
proposal, cross-border deliberation between between members of likeminded
parties that are in power at the national level should prepare the
ground for intergovernmental treaty making at the EU level. I argue that
this model of ‘networked’ constituent power is problematic because it
fails separate pouvoir constituant and
pouvoirs constitués. By means of a rational reconstruction of the
Democracy in Europe Movement 2025, I outline an alternative model of
extraordinary partisanship. Extraordinary partisan associations ‘co-opt’
regular parliamentary elections to acquire a mandate for a project of
constitutional change. Such an organization could enable citizens from
various member states to promote an opening up of the EU polity for the
exercise of constituent power.
Journal of European Integration, 2018
Political theory develops its normative positions on EU legitimacy with a view to what seems poss... more Political theory develops its normative positions on EU legitimacy with a view to what seems possible and acceptable under given political, social and cultural conditions. Thus, the Brexit vote should give it a pause. In this article, I discuss if and to what extent we can hold on to the claim that the EU is based on a pouvoir constituant mixte. In particular, I examine three problems that are raised by the UK's decision to leave the EU. First, I address the analytical challenge of whether 'split' popular sovereignty is refuted as a rational reconstruction of the EU. Second, I turn to the normative-theoretical challenge of whether it is a category mistake to refer to (dual) constituent power in the context of the EU. Third, I deal with the political challenge of whether pouvoir constituant mixte is prone to confuse citizens and to scare them off with excessive 'EUphoria'.
Journal of International Political Theory, 2019
Since the euro crisis, protest movements present the EU as a neoliberal hegemony that undermines ... more Since the euro crisis, protest movements present the EU as a neoliberal hegemony that undermines democracy and prevents progressive reforms. They call for acts of resistance and partial disintegration to force a renegotiation of the treaties. In this article, I ask whether these 'disruptive' political strategies can be defended as a democratic practice of constitutional politics. To that end, I turn to the notion of destituent power, according to which opposition to or withdrawal from public authority can function as a legitimate trigger for constitutional change. I systematise the emerging debate on destituent power and discuss the plausibility of competing approaches. I argue that destituent power is best understood as grounded in popular sovereignty. It denotes the right to dismantle constitutional orders without the intention to construct new ones. While this idea supports some of the acts of contestation proposed by EU protest movements, it faces a lure towards the jurisgenerative dimension of constituent power. Ultimately, the potential of a purely negativistic logic of constitutional politics is limited.
Global Constitutionalism, 2018
There is a growing sense that if the EU is to avoid disintegration, it needs a constitutional ren... more There is a growing sense that if the EU is to avoid disintegration, it needs a constitutional renewal. However, a reform negotiated between executives will hardly revitalize the European project. In light of this, commentators have suggested that the EU needs a democratic refounding on popular initiative. But that is easier said than done. Shaping the EU has been an elite enterprise for decades and it is hard to imagine how things could be otherwise. In this article, I map four public narratives of constituent power in the EU to sketch out potential alternatives. Political actors increasingly call into question the conventional role of the states as the 'masters of the treaties' and construct alternative stories as to who should be in charge of EU constitutional politics, how the respective subject came to find itself in that position, and how it should invoke its founding authority in the future. These public narratives represent a promising starting point for a normative theory that outlines a viable and justifiable path for transforming the EU in a bottom-up mode.
European Law Journal, 2017
This article presents a rational reconstruction of the practice of constitutional politics in sup... more This article presents a rational reconstruction of the practice of constitutional politics in supranational polities. In doing so, it seeks to refocus the ongoing debate about constituent power in the EU on the question of who, under what conditions, is entitled to decide on the EU constitutional order. The analysis leads to a number of principles of democratic legitimacy , which include the political autonomy of the members of the state demoi as well as the political autonomy of the members of a cross-border demos. In explicating these parallel entitlements to political autonomy, I provide a systematic justification for the notion of a pouvoir constituant mixte, according to which the citizens should take control of EU constitutional politics in two roles – as European citizens and as Member State citizens.
Constellations, 2017
In this article, I refine the discourse-theoretical account of constituent power in order to addr... more In this article, I refine the discourse-theoretical account of constituent power in order to address a problem that haunts the notion of pouvoir constituant since its earliest invocations: the theoretical conflict between openness and containment. On the one hand, the category of constituent power is tied to expectations of radical procedural and substantive openness and seems to lose its distinctive character once we set forth normative requirements for constitution-making. On the other hand, the pouvoir constituant is understood as the constitu-tion’s source of democratic legitimacy, which means that not every procedure and not every result of constitution-making can be deemed acceptable. A possible solution to this dilemma is to derive the normative standards for the democratically legitimate exercise of constituent power from the practice of founding itself. To that end, I conduct a rational reconstruction that starts out from the presuppositions of freedom and equality that underlie the real-world practice of constitution-making. In the analysis, I revise the thought experiment that leads Jürgen Habermas to the system of rights and explicate, from the participant perspective, the procedural and substantive conditions under which the exercise of constituent power presents itself as discursively justifiable.
Journal of Common Market Studies, 2017
Recent debates on democracy in the European Union revolve around a productive competition between... more Recent debates on democracy in the European Union revolve around a productive competition between accounts of demoi-cracy and regional cosmopolitanism. While the former present the peoples of the member states as the EU's subjects of legitimacy (Nicolaïdis, 2013), the latter suggest that the EU should be interpreted as deriving its authority from a single community of European citizens (Eriksen, 2014). Both of these positions have their merits, but their respective one-sidedness casts doubt on them. While the demoi-cratic interpretation does not adequately account for the EU's supranational elements, the regional-cosmopolitan reading of the European polity too easily brushes aside the continuing importance of the member state peoples (Crum, 2016, p. 11). In light of this impasse, Jürgen Habermas has recently advanced a novel account of the EU's political community. According to the idea of a pouvoir constituant mixte, the EU is based on a dual subject consisting of the community of European citizens on the one hand and the communities of state citizens on the other (Habermas, 2012, pp. 28-37; see Rasmussen, 2014). Habermas argues that this dualist notion not only provides a consistent explanation of the normative meaning of the EU's current structure but provides political theory with the key to outlining a convincing constitutional design for supranational democracy (Habermas, 2015a). While Habermas introduces a substantively new position, the term pouvoir constituant mixte has existed for some time. It first gained prominence when Anne Peters adopted it from Vlad Constantinesco and, assuming that the EU's dual constituent power is to be imagined as being composed of the peoples and the member states, criticized it as a 'misleading opposition
Journal of Common Market Studies, 2017
In this article, I elaborate a conceptual innovation that underlies, if only in nascent form, Jür... more In this article, I elaborate a conceptual innovation that underlies, if only in nascent form, Jürgen Habermas’s notion of pouvoir constituant mixte and could significantly advance research on the democratic legitimacy of EU constitutional politics: the levelling up of constituent power. According to this idea, state-level pouvoirs constituants may issue an authorization for constitutional decision-making at the supra-state level and thereby bring about a new constituent power whose composition can take a variety of forms. This conceptual framework paves the way for a systematic analysis of the EU’s pouvoir constituant and its relation to the demoi of the member states. At the same time, it renders it an open normative question who should be in charge of EU constitutional politics.
I•CON – International Journal of Constitutional Law, 2016
The normative school of global constitutionalism lacks a convincing model of constitutional polit... more The normative school of global constitutionalism lacks a convincing model of constitutional politics. As far as the democratic legitimacy of constitution-making at the supra-state level is addressed at all, scholars usually resort to democratic intergovernmentalism. According to this normative model, processes in which constitutional norms in the global realm are made or amended are democratically legitimate if they are organized as treaty-making among democratic executives, followed by parliamentary ratification. In this article, I argue that this model should be rejected because it puts the democratic legal domestication of public authority at risk. Specifically, democratic intergovernmentalism is characterized by five shortcomings: (a) it does not distinguish between norms of contractual and constitutional quality, (b) it undermines the separation of powers, (c) it breaches the division and hierarchi-zation of constituent and constituted power, (d) it disregards the deliberative dimension of democratic control and (e) it does neither provide the citizens nor their representatives with a capacity to begin. Ultimately, I suggest that a superior approach should build on the notion of constituent power.
Millennium – Journal of International Studies, 2013
In this review article, I suggest that the books under review should be conceived of as trailblaz... more In this review article, I suggest that the books under review should be conceived of as trailblazers of an emerging debate in international political theory. They all innovatively apply the concept of constituent power to the international realm and thereby contribute to establishing a new principle for the democratic legitimacy of international institutions. I argue that we should aim to develop a systematic theory of constituent power beyond the state because such a tool could considerably enhance the analytical categories of our research on democratic legitimacy beyond the state. Furthermore, I propose research questions for this new field of study, concerning conceptual, methodological and institutional aspects, and in turn apply these to the different conceptions of an international pouvoir constituant presented in the volumes under review in order to discuss their strengths and weaknesses.
Philosophy & Social Criticism, 2014
In "The Crisis of the European Union" Jürgen Habermas claims that the constituent power in the EU... more In "The Crisis of the European Union" Jürgen Habermas claims that the constituent power in the EU is shared between the community of EU citizens and the political communities of the member states. By his own account, Habermas arrives at this concept of a dual constituent subject through a rational reconstruction of the genesis of the European constitution. This explanation, however, is not particularly illuminating since it is controversial what the term ‘rational reconstruction’ stands for. This article critically discusses the current state of research on rational reconstruction, develops a new reading of Habermas’ method and invokes this account for an explanation and evaluation of the notion of a European pouvoir constituant mixte.
![Research paper thumbnail of Zwei Modelle empirischer Legitimitätsforschung [Two Models for the Empirical Study of Legitimacy] (Politische Vierteljahresschrift)](https://attachments.academia-assets.com/44185927/thumbnails/1.jpg)
](Politische Vierteljahresschrft, 2013
"In his guest contribution to the PVS 4/2011 Michael Zürn analyzes the development of empirical l... more "In his guest contribution to the PVS 4/2011 Michael Zürn analyzes the development of empirical legitimacy in the western democracies, in authoritarian states and in the context of the proliferation of political authority and law beyond the state. He claims that democracy is losing ground as justificatory principle of legitimate authority. His argument is based on a conception of legitimacy which can be elucidated by reference to a “judgment model” for the empirical study of legitimacy. This model is differentiated here from a model which conceptualizes the empirical study of legitimacy as measurement. It is argued that Zürn’s empirical analysis does not meet the requirements of his own, complex understanding of empirical legitimacy and that therefore his main thesis – that the significance of democracy as a source of political legitimacy is declining – needs to be questioned."
Zeitschrift für Politische Theorie, 2013
"In "The Crisis of the European Union" Jürgen Habermas claims that the constituent power in the E... more "In "The Crisis of the European Union" Jürgen Habermas claims that the constituent power in the EU is shared between the community of EU citizens and the political communities of the member states. By his own account, Habermas arrives at this concept of a dual constituent subject through a rational reconstruction of the genesis of the European constitution. This explanation, however, is not particularly illuminating since it is controversial what the term rational reconstruction stands for. This article critically discusses the current state of research on rational reconstruction, develops a new reading of Habermas’s method and invokes this account for an explanation and evaluation of the notion of a European pouvoir constituant mixte."
Die europäische Integration ist seit Beginn der 1990er Jahre schrittweise zu einem zentralen Gege... more Die europäische Integration ist seit Beginn der 1990er Jahre schrittweise zu einem zentralen Gegenstand von Habermas' demokratietheoretischen Arbeiten geworden. Zugleich ist sie der Bereich, in dem er sich mit besonderer Verve als öffentlicher Intellektueller engagiert. Seine wissenschaftlichen Schriften zur Europäischen Union (EU) lassen sich sowohl inhaltlich als auch methodisch als Beiträge zu einer Diskurstheorie supranationaler Demokratie verstehen. Dieser systematische Gehalt erschließt sich, wenn man die EU-Texte vor dem Hintergrund vorangegangener Arbeiten zum demokratischen Rechtsstaat liest. Es liegt in der Natur der Sache, dass sich Habermas' Beiträge zu Fragen europäischer Integration stets an ein grenz-überschreitendes Publikum richten und auch ihre Rezeption in transnationalen Diskursen erfolgt. Dementsprechend beschränkt sich auch die folgende Betrachtung ihrer Wirkungsgeschichte nicht auf den deutschen Kontext, sondern folgt inhaltlichen Debattenverläufen und systematischen Entwicklungslinien. Die wichtigsten Stationen auf diesem Weg sind die Suche nach europäischer Öffentlichkeit und Bürgerschaft (I.), die Rolle der EU im Rahmen einer Konstitutionalisierung des Völkerrechts (II.) und die Idee eines pouvoir constituant mixte (III.). Dabei ergibt sich das Bild eines Projekts praxisorientierter Theoriebildung, das auf ein distinktes Modell supranationaler Demokratie hinausläuft - welches sich jüngst mit Heraus-forderungen partieller Desintegration und differenzierter Integration konfrontiert sieht (IV.).
Der Begriff der Souveränität in der transnationalen Konstellation, 2014
Kantian Theory and Human Rights (Routledge), eds. Reidar Maliks/Andreas Føllesdal, 2014
"Several rulings of the European Court of Human Rights (ECtHR), first of all in the case Hirst v ... more "Several rulings of the European Court of Human Rights (ECtHR), first of all in the case Hirst v United Kingdom, have evoked a debate about the democratic legitimacy of international human rights review. This paper contributes to this discussion by analyzing the legitimacy of international human rights courts from the perspective of Kantian democratic theory. Basically, I argue that the current debate is marked by a shortcoming which it inherited from the arguments about domestic judicial review. The main contributions ignore the dimension of extraordinary politics, i.e. they fail to assess the democratic legitimacy of human rights courts on the level of institution-building. The legitimacy debate revolves around issues such as the ECtHR’s relation to national parliaments and the citizens, its competences, its decision procedures and the substance of its rulings, while the following question is not systematically addressed: Who should be entitled to establish and reform international human rights courts and to define their competences and decision procedures in the first place?
In this paper, I tackle this question on the basis of a Kantian approach to democracy. First, I present some conceptual considerations on legitimacy and democratic legitimacy. Second, I introduce a Kantian conception of democracy that distinguishes between popular sovereignty in normal and extraordinary politics. Moreover, I outline two corresponding perspectives on the democratic legitimacy of judicial review. Third, I briefly summarize the discussions about the legitimacy of national and international judicial review in order to show that they exclusively focus on democratic legitimacy in normal politics. Fourth, I object to a standard argument (the ‘dictatorship argument’) that is frequently brought forward to support the claim that the extraordinary dimension of politics is irrelevant for the legitimacy of judicial review. Fifth, I consider the legitimacy of international human rights courts from the extraordinary politics perspective. I criticize the intergovernmental account of institution-building and argue that the right to establish international human rights courts belongs to the constituent power of the member states’ peoples. Sixth, I consider institutional forms for the exercise of this entitlement. The conclusion summarizes the findings and hints at their practical implications."
Suprastaatliche Konstitutionalisierung (Nomos), eds. Bardo Fassbender/Angelika Siehr, 2012
"The number of contributions to the global constitutionalism debate has reached a vast scale in r... more "The number of contributions to the global constitutionalism debate has reached a vast scale in recent years. There are discussions about the constitution of the European Union, the constitutions of international organizations (e.g. the WTO), the constitution of the international community (which some authors identify with the UN Charter), or the constitutionalization of international law in general. In particular beyond European law, i.e. within the debate of international law, questions of constitutional and democratic theory are often neglected. Especially the topics of constituent power and the legitimacy of the purported constitutions and processes of constitutionalization are disregarded. Against this background, we address the legitimacy of the constitutionalization of international law. More precisely, we reconsider where the constituent power can be located beyond the state and which functions transnational public spheres could and ought to fulfill with regard to its representation."
Constellations, 2023
In recent years, constituent power has experienced a revival, with both academic and political di... more In recent years, constituent power has experienced a revival, with both academic and political discourse seeing more and more frequent appeals to the right of 'We the People' to shape their
Review of Democracy, 2023
Review of Jürgen Habermas’s book Ein neuer Strukturwandel der Öffentlichkeit und die deliberative... more Review of Jürgen Habermas’s book Ein neuer Strukturwandel der Öffentlichkeit und die deliberative Politik [A New Structural Transformation of the Public Sphere and Deliberative Politics].
Etica & Politica / Ethics & Politics, 2019
Accessible at: https://www.openstarts.units.it/handle/10077/29492
International Studies Review, 2021
Exceptional times call for exceptional measures-this formula is all too familiar in the domestic ... more Exceptional times call for exceptional measures-this formula is all too familiar in the domestic setting. Governments have often played loose with their state's constitution in the name of warding off an urgent threat. But after decades of increasing interconnectedness and emerging transnational governance, today one sees new forms of emergency politics that are cross-border in range. From the European Union (EU) to the World Health Organization (WHO), from supranational institutions to state governments acting in concert, the logic of emergency is embraced in international contexts, with Covid-19 the latest occasion. This Forum offers an entry-point into this emerging phenomenon. Taking as its point of departure two recent books, it examines the origins, forms, effects and normative stakes of emergency politics beyond the state. Amongst the matters discussed are the concept of emergency politics, the historical context of its contemporary forms, the patterns of decision-making associated with it, the implications for the legitimacy of transnational institutions, and the constitutional and political ways in which it might be contained. Transnational emergency politics seems likely to remain a central feature of the coming years, and our aim is to further its study in IR.
Bruce Ackerman is best known for his seminal trilogy We the People, which offers a reconstruction... more Bruce Ackerman is best known for his seminal trilogy We the People, which offers a reconstruction of the history of constitutional transformations in the United States. In Revolutionary Constitutions, which is advertised as the first in a new series of volumes, Ackerman embarks on a comparative enterprise. The goal is to "explore three different pathways through which constitutions have won legitimacy over the past century" in different countries (p. 1). Ackerman constructs three ideal types. On the pathway of revolution, a mass movement declares the existing system of government illegitimate and eventually replaces it. On the pathway of strategic co-optation, regime insiders respond to a popular insurgency by enacting landmark reform legislation that enables moderate outsiders to join the political establishment, which undermines the momentum of more radical voices. On the pathway of elite construction, the political system unravels -for example, in the context of a post-war occupation -while the general population remains relatively passive, which provides previously excluded political and social elites with an opportunity to construct a new constitutional order.
Few debates in political theory are challenged as much by the constant change of their empirical ... more Few debates in political theory are challenged as much by the constant change of their empirical subject as those about democracy in the European Union (EU). With A Republican Europe of States, Richard Bellamy responds to the EU's post-Lisbon era, which has been characterized by the euro crisis, conflicts over migration, the rise of Euroscepticism, and Brexit. Keeping an eye on these contextual conditions and the related legal and political transformations, he has developed a general theory of international democracy aimed at securing non-domination between peoples and between citizens and their representatives at the international level, and elaborated its implications for the EU. The result is a distinctive version of demoi-cracy, whose firm centering on the nation-state as the natural locus of democracy is likely to be controversially discussed. In this article, I raise some critical considerations regarding the design of demoi-cratic institutions, the adequate understanding of EU citizenship, and the normative credentials of differentiated (dis-)integration.
Etica & Politica / Ethics & Politics, 2019
This is a reply to a review symposium on my book "Usurpation und Autorisierung: Konstituierende G... more This is a reply to a review symposium on my book "Usurpation und Autorisierung: Konstituierende Gewalt im globalen Zeitalter".
Many people believe that the UK's decision to leave the EU spells trouble for both country and co... more Many people believe that the UK's decision to leave the EU spells trouble for both country and continent, yet by and large think that the exit vote and process, painful though they may be, adhere to the rules and spirit of democratic self-government. Peter Niesen and Markus Patberg argue that in one important respect this is not the case, since fully democratic credentials require reversibility in decision-making and are incompatible with an irreversible loss of political rights.
Brexit has given rise to a range of critical issues. For example, was the composition of the elec... more Brexit has given rise to a range of critical issues. For example, was the composition of the electorate for the referendum adequate? What follows from the fact that some parts of the UK voted to remain? What will happen to resident EU citizens? Will the EU try to set a warning example in the withdrawal negotiations? It hence prompts the need for a normative theory of disintegration.
In Agonistic Democracy, Mark Wenman sets out to provide a systematic account of agonistic democra... more In Agonistic Democracy, Mark Wenman sets out to provide a systematic account of agonistic democracy in order to disprove what he perceives as a common prejudice, namely, that "the agonistic perspective is less coherent and well developed" (p. 3) than other conceptions of democracy. According to Wenman, the theoretical basis of agonism consists of the ideas of pluralism, tragedy and the value of conflict, while democracy is to be understood as a founding moment (rather than a form of government) and finds its expression in the notion of constituent power. Constituent power, Wenman suggests, may emerge in two different modes.
Democracy is two-dimensional. It does not only entail the people's right to participate in ordina... more Democracy is two-dimensional. It does not only entail the people's right to participate in ordinary lawmaking but also the entitlement to engage in constitutional politics. Thus, a constitutional democracy should never be regarded as a finished project. By contrast, democratic constitutions enjoy legitimacy only to the extent that they "provide an opening, a means of egress, for constituent power to manifest from time to time" (3). The best institutional mechanism for enabling the exercise of constituent power is a combination of a bottom-up initiated constituent assembly with referenda. This is, in a nutshell, the essence of Joel Colón-Ríos's book Weak Constitutionalism. The book makes a substantial contribution to the current field of research aimed at rediscovering the classical notion of constituent power for contemporary democratic theory.
Ethics & International Affairs, 2012
"This is a response to John S. Dryzek’s “Global Democratization: Soup, Society, or System?” in t... more "This is a response to John S. Dryzek’s “Global Democratization: Soup, Society, or System?” in the Summer 2011 issue of Ethics & International Affairs."
LSE Brexit Blog
Many people believe that the UK’s decision to leave the EU spells trouble for both country and co... more Many people believe that the UK’s decision to leave the EU spells trouble for both country and continent, yet by and large think that the exit vote and process, painful though they may be, adhere to the rules and spirit of democratic self-government. Markus Patberg and I argue that in one important respect this is not the case, since fully democratic credentials require reversibility in decision-making and are incompatible with an irreversible loss of political rights.