THE MEGA-LEVIATHAN AND ITS DEMOCRATIC BASIS:

THE LEGISPRUDENTIAL SIGNIFICANCE OF HANS

KELSEN FOR THE EUROPEAN UNION

Hong Quoc Loc*

“Weber: ‘Do you think that I regard the Schweinerei that we now have as
democracy?’....
Ludendorff: ‘What is your idea of democracy, then?’
Weber: ‘In a democracy, the people choose a leader whom they trust. Then the
chosen man says, ‘Now shut your mouths and obey me. The people and the
parties are no longer free to interfere in the leader’s business’.’
Ludendorff: ‘I could like such a ‘democracy’!’
Weber: ‘Later the people can sit in judgment. If the leader has made mistakes―
to the gallows with him!’...”

―Marianne Weber, Max Weber: A Biography

Abstract

The European Union (EU) is a polity fundamentally different from the nation-
states of which it is composed. The democratic basis of this mega-leviathan,
therefore, must be constructed in a way other than the way that has been done in
the case of national leviathans. Drawing on a theory of democracy elaborated by
Hans Kelsen during the Weimar Republic, this article will devise a strategy
through which we may be able to arrive at that alternative foundation for the EU.

Keywords

European Union, democratic legitimacy, majority rule, Hans Kelsen

*
FWO Postdoctoral Fellow, Faculty of Law, University of Antwerp. I would like to thank
Professor Maurice Adams, Professor Johan Meeusen and the participants in a department
seminar held in May, 2007 for their critical comments on an earlier draft of this article. My
thanks also go to this journal’s anonymous reviewers for their incisive suggestions.
156 The Mega-Leviathan and Its Democratic Basis

A. THE SPELL OF THE DEMOS

The European Union (EU) has long been recognized as a polity sui generis.1 But
strangely enough, this crucial insight is often overlooked by participants in the
raging debate on its alleged lack of democratic legitimacy. Many of them are still
arguing on the basis of the assumption that the EU is but an enlarged version of
the national democracy, where the demos is governed by legal norms of which the
demos itself has been the author.2 The reliance on this assumption by judges,
scholars and politicians, among others, is revealed in their tendency to focus on
the absence of a European demos whom one could consider as the creator of the
European legal order. The absence thereof is what gives rise to the infamous
democratic deficit suffered by the EU and the rule of its laws, they argue.3
Notwithstanding the fact that it is erroneous, the assumption underlying their
argument has remained extremely dominant within the European debate.4 So
strong is its grip thereon that we may refer to this assumption as “the spell of the
demos”. Its strength is manifested in, among other things, the relentless quest for
a European equivalent of this body to whom the authorship of European
legislation could then be attributed.5
Demos means, as it is well-known, people in the sense of people as a political
actor who participates in the legislative process.6 In classical democracy, the
demos or people were composed of a small group of citizens who possessed the
right to take part in the governance of their polis. Since the rise of modern
democracy in North America and Western Europe at the end of the 18th century,
the composition thereof has been gradually expanded to include the whole nation
that lives in a particular state. A nation is “a political community shaped by
common descent, or at least by a common language, culture, and history.”7 Its
role as the people of a democratic state has, in general, been so successful that the

1
V A Schmidt, “The European Union: Democratic Legitimacy in a Regional State?” (2004) 42
Journal of Common Market Studies, 976.
2
A Moravcsik, “Despotism in Brussels? Misreading the European Union” (2001) 80 Foreign
Affairs, 114-122.
3
For a critical discussion of this argument, see J H H Weiler, “Does Europe Need a
Constitution?: Reflections on Demos, Telos and Ethos in the German Maastricht Decision”, in
P Gowan and P Anderson (eds), The Question of Europe (London, Verso, 1997), 269-274.
4
See Moravcsik, “Despotism in Brussels?”, supra, n 2, 119 on Larry Siedentop’s Democracy in
Europe: “Siedentop’s most fundamental error―one he shares with many in the European
debate―is his assumption that the EU is a nation-state in the making and therefore ought to be
held to the same democratic standards as its member states.”
5
LE Cederman, “Nationalism and Bounded Integration: What it Would Take to Construct a
European Demos” (2001) 7 European Journal of International Relations, 139-174.
6
M Jolly, “A Demos for the European Union?” (2005) 25 Politics, 12.
7
J Habermas, The Inclusion of the Other: Studies in Political Theory, C Cronin (tr),
(Cambridge, Mass, MIT Press, 1999), 107.

Legisprudence Vol I, No 2
 Hong Quoc Loc 157

terms “nation”, “people” and “demos” can be used interchangeably in political

discourse to refer to a relatively cohesive body of citizens that could serve as the
foundation of a self-governing polity.
From the perspective of the nation’s proven record, it becomes perfectly clear
why the spell of the demos is so problematic for the EU. There is, after all, no
European nation that would be able to play the role of the European people upon
whom the democratic credentials of EU legislation could be established.8 The
recent expansion of the EU has further worsened its legitimacy problem. In order
to keep the expanded Union governable, it may become necessary to take
recourse to the majority principle much more often than is the case now in the
governance of this immense polity. According to classical democratic theory, the
majority principle, however, can only be legitimately applied within a demos.9 It
is unable to confer legitimacy on any government measure taken in the absence
thereof. “If there is a desire to maintain and indeed increase majoritarian
decision-making in the European Union, it is necessary to start thinking about
how it is intended that the EU should construct a demos,” a political scientist has
recently concluded.10
In this article, we shall argue that the spell of the demos must be broken, lest
we cannot even take the first step to the eventual neutralization of the legitimacy
crisis faced by the EU. Through this argument we seek to drive home the oft-
overlooked insight that the EU is a polity fundamentally different from the nation
states of which it is composed,11 and that the democratic basis of this “mega-
leviathan,”12 therefore, must be constructed in a way other than the way that has
been done in the case of national polities.13
Given the necessity to rely on the majority principle to keep the
administration of the vastly enlarged EU running at a tolerably efficient level, it is
obvious that the attempt to arrive at an alternative foundation thereof only makes
sense if it would enable us to contend that recourse to majority legislation is even

8
Weiler, “Does Europe Need a Constitution?”, supra, n 3, 276.
9
R A Dahl, Democracy and Its Critics (New Haven, Yale University Press, 1989), 204.
10
Jolly, “A Demos for the European Union?”, supra, n 6, 16.
11
K Nicolaïdis, “We, the Peoples of Europe….” (2004) 83 Foreign Affairs, 97-110.
12
This term is borrowed from W M Reisman, “Allocating Competences to Use Coercion in the
Post-Cold War World: Practices, Conditions, and Prospects”, in L F Damrosch and D J Scheffer
(eds), Law and Force in the New International Order (Boulder, Westview Press, 1991), 27:
“But, as yet, there has been no incorporation of the various states of the world into a single
mega-Leviathan ... paralleling the incorporation of the various feudal entities into modern
nation-states.”
13
Nicolaïdis, “We, the Peoples of Europe…”, supra, n 11, 101: “The EU is neither a union of
democracies nor a union as democracy; it is a union of states and of peoples―a
‘demoicracy’―in the making. It appeals to a political philosophy of its own―transnational
pluralism―rather than to some extended notion of the nation-state.”

Legisprudence Vol I, No 2
158 The Mega-Leviathan and Its Democratic Basis

legitimate within a body of citizens that is much less cohesive than the traditional
nation.
In order to make possible that contention, our argument will be structured as
follows. First, we shall discuss why, according to democratic orthodoxy, the
majority principle can only be applied within a demos, and why the nation has
been so successful in its performance as the demos of a self-governing polity.
Then, we shall combine the insight that emerges from this discussion with a
reinterpretation of the majority principle advanced by Hans Kelsen in the 1920s
to arrive at our alternative basis for the EU.
The strategy which Kelsen has pursued to justify this principle will not only
enable us to establish the democratic credentials of the EU’s majority legislation
in the absence of a European demos, but will yield another advantage as well.
Thanks to his strategy, it will also become possible for us to argue that the
generally low voter turn-out at elections for the European Parliament does not
need to imply that EU legislation governing EU citizens is somehow
democratically illegitimate―an argument which, in fact, amounts to the
neutralization of a key objection that Euroskeptics love to throw at “Brussels”.

B. THE SCOPE OF RECIPROCAL SOLIDARITY

1. The Contractualist Case for Majority Rule

National democracy has usually been understood as self-legislation by the people.
Since the people include all the polity’s citizens, laws authored by this body
would, so the theory roughly runs, not violate the political autonomy of anybody
among them.14 Herein resides, then, the origin of the conviction that only their
authorship could confer legitimacy on a system of coercive public rules
governing the conduct of every polity member.15
Despite the theoretical demand for popular self-legislation, laws promulgated
by a majority of either voters or parliamentarians have, in general, been accepted
by outvoted supporters of the minority standpoint as democratically legitimate.
These laws are considered legitimate in the sense that minority members are
willing to perceive them as laws of which they themselves and the governing
majority have been the collective author.16

14
A Keenan, Democracy in Question: Democratic Openness in a Time of Political Closure
(Stanford, Stanford University Press, 2003), 9.
15
S F Midtgaard, “Justice, the Basic Structure, and Stability” (2003) 38 Acta Politica, 125: “By
laws, I mean a system of coercive public rules.”
16
C Kutz, “The Collective Work of Citizenship” (2002) 8 Legal Theory, 471-494; B van
Roermund, “Sovereignty: Unpopular and Popular”, in N Walker (ed), Sovereignty in Transition

Legisprudence Vol I, No 2
 Hong Quoc Loc 159

The explanation for this willingness should be sought in, among other things,
the prevalence of the social contract theory with the help of which the practice of
majority legislation could be reconciled with the principle of popular self-
legislation.17 If, social contract theorists have pointed out, we were to assume that
all those who are going to be affected by democratically enacted laws, through
the contract that they concluded with one another at the foundation of the
democratic polity, have agreed to adopt the majority principle as the principle
according to which laws from then on must be enacted, then we would be able to
argue that majority legislation is self-legislation, since it could ultimately be
traced back to the consent of those who are affected by it.18 Laws enacted by the
majority could, in other words, be construed as self-imposed laws, if it could be
assumed that the majority principle has been unanimously accepted from the
outset by those who are going to be governed by such laws.19
In a democracy understood as popular self-legislation, this initial unanimity is
constitutive to the democratic legitimacy of majority legislation. “In fact, if there
were no earlier agreement, how (…) could there be any obligation on the minority
to accept the decision of the majority,” Rousseau rhetorically asked in The Social
Contract.20

“What right have the hundred who want to have a master to vote on behalf of
the ten who do not? The law of the majority-voting itself rests on an
agreement, and implies that there has been on at least one occasion
unanimity.”21

Underlying the requirement that the covenant establishing the majority

principle be unanimously concluded is the notion that everybody is equal, and
that everybody should, therefore, possess an equal right to autonomy or self-
determination. This means, in turn, that nobody is entitled to impose his will upon
others.22 When a person voluntarily decides to enter the social contract, he
therefore is not only exercising his own right to self-determination, but also, by
his consent to that agreement, he is indirectly recognizing the right to self-

(Oxford, Hart Publishing, 2003), 33-54; H K Lindahl, “Zelfregulering: Rechtsvorming,

Democratie en Reflexieve Identiteit”, (2006) 2 Rechtsgeleerd Magazijn Themis, 39-48.
17
See, for instance, D Lefkowitz, “A Contractualist Defense of Democratic Authority” (2005)
18 Ratio Juris, 346-364.
18
R A Burt, The Constitution in Conflict (Cambridge, Mass, Belknap Press of Harvard
University Press, 1992), 27-28.
19
Ibid, 28: “This is the basic theoretical justification, the ex ante argument, for majority rule as
the instrument for honoring the democratic norms of equality and self-determination.”
20
J J Rousseau, The Social Contract, M Cranston (tr), (London, Penguin Books, 1968), 59.
21
Ibid.
22
Ibid, 152.

Legisprudence Vol I, No 2
160 The Mega-Leviathan and Its Democratic Basis

determination of other contractors with whom he, in the words of Jürgen

Habermas, will constitute, “an association [that] is structured by relations of
mutual recognition in which each person can expect to be respected by all as free
and equal.”23 The key notion expressed in the unanimously concluded social
contract, in other words, is not simply the notion that each party to the contract is
politically autonomous, but rather, the notion that the political autonomy of the
one should be reconciled with that of the other.24 “[T]he initial decision to engage
in democratic self-legislation can,’’ writes Habermas,

“only be carried out by realizing the rights that the participants must mutually
grant one another if they want to legitimately regulate their life in common by
means of positive law.”25

Since unanimity is the voting rule by means of which this political reciprocity
among all members of a democratic community is to be secured,26 it becomes
clear why the majority principle must be established by unanimous consent in
order to avoid the perception that laws enacted in accordance with this principle
constitute a violation by the majority of the right to self-determination that
belongs to minority members. If the majority principle were accepted from the
outset by all parties to the social contract as the principle according to which the
democratic game from that moment on must be played, then it cannot be said that
majority legislation somehow constitutes an invasion into the minority’s sphere of
autonomy.27 Through their initial consent to the covenant that establishes the
majority principle, those who happen to belong to the minority have, arguably,
already consented to the laws that are subsequently enacted by the majority,
which, in turn, means that majority legislation at the level of day-to-day practice
could be reconciled with the principle that law must be imposed by the people
themselves at the theoretical level.
Thanks to the social contract, it becomes, in other words, possible to attribute
the authorship of majority legislation to the people.28 Should this attribution be
successful, then we are able to contend that the majority has been authorized by

23
J Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and
Democracy, W Rehg (tr), (Cambridge, Mass, MIT Press, 1999), 496.
24
Rousseau, The Social Contract, supra, n 20, 4 and 75-76.
25
Habermas, The Inclusion of the Other, supra, n 7, 137.
26
Burt, The Constitution in Conflict, supra, n 18, 45: “Actual unanimity is…the only voting rule
that consistently vindicates the democratic principles of equality and self-determination.”
27
J Feinberg, The Moral Limits of Criminal Law, volume 1: Harm to Others (Oxford University
Press, 1984), 52: “An invasion is a (usually hostile) crossing of another person’s boundaries, an
encroachment on the other’s territory. To enter wrongly the sphere of another person’s self-
government is to violate his autonomy, that is to infringe his right of self-determination.”
28
See Van Roermund, “Sovereignty”, supra, n 16, 44.

Legisprudence Vol I, No 2
 Hong Quoc Loc 161

the people to make laws for the whole polity so that these laws could be
considered democratically legitimate.

2. The Validity of the Contractualist Argument

It goes without saying that the attribution of majority legislation to the people
could only succeed if minority members have reasons to believe that their
political autonomy would not be violated by the laws that the majority has
enacted. They could, in other words, only accept the social contract theory briefly
outlined above as valid in the case that they were able to assume that majority
legislation would not boil down to an encroachment of their right to self-
determination. Since this right amounts, at a less abstract level, to the right of
every citizen in the polity to pursue his interests in the way he sees fit, the case
could be made that minority members would only be prepared to accept the
validity of the contractualist argument in defense of majority legislation if the
majority were able to convince them that their interests are safe in its hands.
Representation is, then, the technique that the majority, according to social
contract theory, ought to apply to engender and sustain this conviction among
minority members.29 In order to persuade them that their interests are taken care
of, the majority, first of all, shall have to claim to act in the general interest of
whole people. Whether the majority’s claim is plausible remains to be seen, but a
majority that does not make this claim, has already forfeited its claim to
democratic legitimacy. Without the claim to legislate in the general interest of the
whole people, that is, the claim to represent the whole people, majority legislation
would, after all, appear to be nothing more than measures that the prevailing
majority enacts to advance its particular interests at the cost of the vanquished
minority. Only by claiming that it also acts in the name and to the benefit of
defeated minority members could the legislative majority initiate the
legitimization of its laws. The claim to do so, in other words, is the first step the
majority has to take to reconcile the fact that laws are made by just a particular
section of the people, with the principle that only the whole people is entitled to
legislate in the general interest of the whole people.30

29
L J Wintgens, “Sovereignty and Representation” (2001) 14 Ratio Juris, 272-280; H Lindahl,
“The Purposiveness of Law: Two Concepts of Representation in the European Union” (1998) 17
Law and Philosophy, 481-507.
30
Wintgens, “Sovereignty and Representation”, supra, n 29, 276: “Since the whole of the
people agrees on a specific way of agreement―the binding character of the majority
decision―without knowing in advance what the content of these majority decisions will be, the
social contract can be said to contain a proxy of the minority. They unanimously agree to abide
by the results of a majority decision which is, by that agreement, formally legitimated. It follows
from that that the majority represents the minority.”

Legisprudence Vol I, No 2
162 The Mega-Leviathan and Its Democratic Basis

Since the ability of this claim to confer democratic legitimacy on majority

legislation depends on the willingness of minority members to accept it as
plausible, the majority shall have to take a second step in the process of
representation to ensure its plausibility in their eyes.31 That step amounts to a
guarantee by the majority that minority members be able to judge whether, and if
so, to what extent, laws enacted by the majority have taken their interests into
account. Should they, for whatever reasons, be dissatisfied with the results
achieved by the incumbent majority, then minority members must have the
opportunity to transform themselves into a new majority so that they could turn
their own vision of the general interest into laws for the whole polity. In other
words, legislative claims raised by the majority cannot be persuasive to minority
members, unless they are able to verify, and if necessary, to rectify them. As long
as minority members retain the opportunity to do so, we could safely assume that
they would be prepared to accept legislative decisions made by the majority as
laws enacted by a body politic to which they themselves also belong. Herein
resides the main reason why general elections have to be held periodically. For
the risk of being thrown out of office at the next elections should constitute a
sufficient stimulus for the governing majority to take seriously its own claim that
minority interests are not being neglected. 32 From this point of view, it can, then,
be said that periodic elections are occasions during which law authors could be
held accountable by law addressees, which, in turn, explains why this cyclic
process must be kept open permanently in a polity that aspires to be called
democratic.
Inherent to the concept of representation outlined above is, as we can see, the
duty of the legislative majority to act in the general interest of the whole people.
For only in the case that this interest is actually being served, would defeated
minority members be prepared not to perceive laws promulgated by the majority
as a violation of their right to pursue their interests, which, in turn, enables them
to accept these laws as, more or less, self-imposed laws. This implies, then, that
the pursuit of the general interest is the sole way through which members of
either the majority or the minority could legitimately advance their political
agenda, because only a successful pursuit thereof is able to reconcile their own
interests with those of their fellow citizens.
Given the duty to serve the general interest, we could contend that in the day-
to-day practice of democracy the reciprocal right of every polity member to
pursue his interests has become the right of majority and minority members to
transform what they see as the general interest into laws for the whole polity. The

31
W Witteveen, “De Nuttige Fictie van het Algemene Belang” (1997) 2 Feit en Fictie, 15-34.
32
This argument, it should be pointed out, is only valid if there were no permanent majorities
and structural minorities. See C Schmitt, Legality and Legitimacy, J Seitzer (tr), (Durham, NC,
Duke University Press, 2004), 28.

Legisprudence Vol I, No 2
 Hong Quoc Loc 163

willingness of both factions to grant one another this right is the reason why, in
most cases, the vanquished minority is prepared to accept its defeat, and why the
governing majority is able to live with the possibility of being voted out of power
at the next election.33 The acceptance of defeat or loss of power, after all, is the
recognition that others are in possession of an equal right to translate their
particular conception of the common good into public rules.34 Without this
acceptance, the cyclic process of majority formation would not be able to operate,
let alone could it confer democratic legitimacy on majority legislation.
If, as outlined above, the validity of the contractualist argument ultimately
depends on the willingness of minority members to perceive majority legislation
as self-imposed, then the case could be made that they would be prepared to do so
should the cyclic process of majority formation remain open. For, thanks to this
process, defeated minority members would retain the possibility to codify their
own vision of the general interest at a later moment in the democratic cycle, while
the prevailing majority does not need to fear that it would suffer from a
permanent loss of political autonomy should an electoral defeat relegate it to the
status of a minority in the future.35
In other words, as long as minority members could rely on this cyclic process
of majority formation to enact their political program for the whole polity, we
(and they themselves) are permitted to assume that majority legislation has been
authorized by a covenant concluded at the birth of democracy by all those who
from then on would be affected by its rule. The reciprocity or mutual recognition
of political autonomy symbolized by the social contract could, then, be said to
have received its institutionalization in the shape of general elections that are held
periodically. This insight would, in turn, imply that democracy that is conceived
as popular self-legislation at the theoretical level could be defined at the
operational level as a system of government under which the majority is entitled
to govern the whole polity through the laws it enacts, on the condition that the

33
C Mouffe, The Return of the Political (London, Verso, 1993), 4.
34
Ibid: “[A pluralistic democratic order] is based on a distinction between ‘enemy’ and
‘adversary’. It requires that, within the context of the political community, the opponent should
be considered not as an enemy to be destroyed, but as an adversary whose existence is
legitimate and must be tolerated. We will fight against his ideas but we will not question his
right to defend them.”
35
See Lindahl, “The Purposiveness of Law”, supra, n 29, 500: “Every (democratic) polity
relates to and orders itself from the point of view or ‘horizon’ of the common good. The
majority party or coalition that exercises power perforce presents its legislation as oriented
toward the common good, but such legislation inevitably particularizes the common good,
giving it a determinate content. Far from effacing the unfinished character of the relation
between the legal order and the common good, democracy institutionalizes the openness of this
relation as the guiding principle of politics.”

Legisprudence Vol I, No 2
164 The Mega-Leviathan and Its Democratic Basis

minority possesses the legally institutionalized opportunity to become a new

legislative majority itself.

3. Democracy and the Nation

The notion that democracy is a system of government that is running on
reciprocity among all polity members carries the implication that the people or
demos of a self-legislating polity could be compared to a network of reciprocal
relationships. It is this network which enables law addressees in general, and law
addressees belonging to the outvoted minority in particular, to attribute the
authorship of majority legislation to the whole demos. When democratic theorists
contend that the majority principle can only be legitimately applied within a
demos,36 they, therefore, mean that its application must take place within the
scope of reciprocity or “reciprocal solidarity,” as Ferenc Fehér has so felicitously
put it.37 Without this kind of solidarity as its basis, no form of majority rule can
ever be democratically legitimate.
Thanks to this insight, it becomes possible for us to understand the success
that the nation enjoys in the performance of its role as the people of a self-
legislating state. For better or worse, a community shaped by common descent,
language, or shared culture has been the community which could generate a level
of reciprocal solidarity that is high enough to make possible the perception of
laws promulgated by the majority as legislative decisions arrived at by the people
themselves. The fact that most Western democracies have been founded on
nations could, then, be cited as the reason why, in general, democracy has been a
particularly successful form of government in this part of the world.
The flip side of this success story is, of course, the inability of the majority
principle to legitimize legislation in the case that reciprocity among members of a
polity either has evaporated or cannot yet be generated at a sufficiently high level.
Whether we like it or not, it is a fact that, up to now, the nation has been the
largest community that could engender enough reciprocal solidarity to ensure the
viability of democratic government. This means that, in practical terms, it is
exceedingly difficult to extend the scope of democracy in general and that of the
majority principle in particular beyond the outer limit of a nation. Herein resides

36
Dahl, Democracy and Its Critics, supra, n 9, 204: “The majority principle itself depends on
prior assumptions about the unit: that the unit within which it is to operate is itself legitimate
and that the matters on which it is employed properly fall within the jurisdiction of that unit. In
other words, whether the scope and domain of majority rule are appropriate in a particular unit
depends on assumptions that the majority principle itself can do nothing to justify. The
justification for the unit lies beyond the reach of the majority principle and, for that matter,
mostly beyond the reach of democratic theory itself.”
37
F Fehér, The Frozen Revolution: An Essay on Jacobinism (Cambridge University Press,
1987), 107.

Legisprudence Vol I, No 2
 Hong Quoc Loc 165

the contractualist explanation for the lack of legitimacy that majority rule tends to
suffer in a polity which aspires to be democratic but whose population is
composed of different nations―a lack which might eventually lead to the break-
up of that multinational polity. “People in Quebec,” writes Robert Dahl,

“insist on greater autonomy, perhaps even independence, not because they

reject majority rule but because they do not believe they should be governed
by English-speaking majorities of Canadians. In 1905 the Norwegian people
insisted on and gained full independence from Sweden because they wanted
their country to be governed by majorities of their own people, and their own
people were Norwegians.”38

Precisely because members of a particular nation inside a multinational polity

are not prepared to grant an equal level of political autonomy to those who do not
share their ethnic, linguistic, religious or cultural background, they cannot accept
majority legislation promulgated by those outside their nation as laws that could
and should be construed as a form of self-legislation. The claim by the majority to
represent the polity’s general interest would ring very hollow in that case.
Minority members would consequently not be able to recognize laws enacted by
the majority as decisions made by the people as a whole, which, in turn, leads
them to perceive these laws as a manifestation of alien domination rather than as
a joint exercise of political autonomy. As long as democracy is understood as
popular self-legislation, it remains virtually impossible to confer democratic
legitimacy on any form of majority rule in the absence of the level of reciprocal
solidarity that is usually available within a nation.39 “The connection between the
nation and democracy, then, should be seen as contingent though far from
arbitrary.”40

4. Habermas and His Alternative Source of Reciprocal Solidarity

It can be argued that the lack of reciprocal solidarity that bedevils a multinational
polity like Canada is precisely what gives rise to the democratic deficit in the EU.
Due to this lack, citizens of the EU are unable to perceive European legislation in
general and majority decisions in particular as coercive public rules of which they
themselves have been the collective author. Should this argument be valid, then it

38
R A Dahl, Toward Democracy: A Journey. Reflections: 1940-1997 (Berkeley, Institute of
Governmental Studies Press, University of California, 1997), 444.
39
This is the main political challenge facing Belgium at the moment. The evaporation of
reciprocal solidarity among its population has rendered this multinational kingdom at the heart
of Europe increasingly ungovernable.
40
Cederman, “Nationalism and Bounded Integration”, supra, n 5, 157.

Legisprudence Vol I, No 2
166 The Mega-Leviathan and Its Democratic Basis

would imply that no level of improvement in either participation by European

voters or transparency in the governance of the EU could ever eliminate the
democratic deficit suffered by the European mega-leviathan. These measures,
after all, cannot do anything to solve the fundamental problem that members of
the nations that comprise the EU are not (yet) willing to extend to Europeans
outside their respective nations the same right to self-determination that they
claim for themselves.41
Their unwillingness to do so reveals the key reason why the social contract
theory can make possible the perception of majority legislation as popular self-
legislation in national leviathans like Denmark and Germany, but is unable to
perform the same feat in a multinational mega-leviathan like the EU. This theory,
to reiterate the point, can only “democratize” majority rule in the presence of
sufficient reciprocity, something that is not (yet) available among citizens of the
different nations of which the EU’s population is composed. The absence thereof
among them is, arguably, the main cause for their tendency to view majority
legislation at a European scale as a sign of foreign or alien domination rather than
as a set of public rules that they have jointly imposed upon themselves. “To drive
this point home,” writes Joseph Weiler,

“imagine an Anschluss between Germany and Denmark. Try and tell the
Danes that they should not worry since they will have full representation in
the Bundestag. Their screams of grief will be shrill not simply because they
will be condemned, as Danes, to permanent minorityship (that may be true for
the German Greens too), but because the way nationality, in this style of
thinking, meshes with democracy is such that even majority rule is legitimate
only within a demos, when Danes rule Danes.”42

Though sobering at first sight, the indissoluble connection between reciprocal

solidarity and popular self-legislation also seems to carry a hopeful implication
for the viability of a democratic mega-leviathan in Europe. In light of their
connection, it could, after all, be argued that we would be able to extend this form
of democracy beyond the boundaries of the nation-state, should we somehow be
able to generate the level of reciprocity that such an extension requires.
This insight is what may have given rise to the well-known attempt by
Habermas to devise an alternative for the nation as the main source of reciprocal
solidarity. He argues that we would be able to decouple democracy from this
community, should we conceive democracy as a discourse. In his discursive
theory, law could be considered as self-legislation if it were rational. Discourse,

41
M Shinn, “Express Yourself”, Times Literary Supplement (2003, June 13), 25.
42
Weiler, “Does Europe Need a Constitution?”, supra, n 3, 272. Weiler, it should be noted, is
only describing this view. He does not subscribe to it.

Legisprudence Vol I, No 2
 Hong Quoc Loc 167

then, to put it very crudely, is an idealized form of public deliberation by means

of which the rationality thereof could be established. A law is deemed to be
rational and therefore self-imposed if it were enacted on the basis of reasons (1)
which have been contested and defended in an uninhibited discussion and (2)
which could gain the approval of all participants in that discussion at the end of
the day. Should the citizens of a democratic polis rely on this discursive
requirement of deliberative unanimity to make laws, then they would guarantee
that everybody among them has the opportunity to advance his interests and voice
his concerns in the legislative process, and that the laws that are ultimately
enacted, are enacted for reasons which are “acceptable to each and everyone.”43
Thanks to the argument that whether a law is self-imposed ultimately depends
on its rational character, Habermas is able to make the case that the demos of a
self-legislating polity could be expanded far beyond the membership of the
traditional nation. For, if it is possible to contend that self-legislation is legislation
promulgated on the basis of reasons that every participant to a discourse could
accept, then it is also possible to assert that democracy as popular self-legislation
could be practiced in a mega-polity whose vast demos consist of citizens who are
strangers to one another. What counts, after all, is not whether these citizens share
a same ethnic or cultural background, but whether they could arrive at an
agreement via a path paved with reasons.44 If that were the case, then this rational
agreement would be able to serve as the

“source of solidarity among strangers―strangers who renounce violence and,

in the cooperative regulation of their common life, also concede one another
the right to remain strangers.”45

The reciprocal solidarity generated by rational agreement between discourse

participants who are strangers for one another would, Habermas contends, be
strong enough to make possible the circulation of majorities and minorities,
which confers democratic legitimacy on laws promulgated in accordance with the
majority principle. Despite the circumstance that it is evidently not based on the
full consensus required by the discourse, majority legislation could nevertheless
be presumed rational and, therefore to a large extent, self-imposed, if it were
enacted after an unimpeded debate, and if it could be amended in case its
presumed rationality turns out to be baseless. A legislative decision reached by
the majority, he elaborates,

43
Habermas, Between Facts and Norms, supra, n 23, 108.
44
Habermas, The Inclusion of the Other, supra, n 7, 137-138.
45
Habermas, Between Facts and Norms, supra, n 23, 308 (emphasis supplied).

Legisprudence Vol I, No 2
168 The Mega-Leviathan and Its Democratic Basis

“only represents a caesura in an ongoing discussion; the decision records, so

to speak, the interim result of a discursive opinion-forming process. To be
sure, in that case the majority decision must be premised on a competent
discussion of the disputed issues, that is, a discussion conducted according to
the communicative presuppositions of a corresponding discourse. Only then
can its content be viewed as rationally motivated yet fallible result of a
process of argumentation that has been interrupted in view of institutional
pressures to decide, but is in principle resumable. Doubts about the legitimacy
of majority decisions on matters with irreversible consequences are revealing
in this regard. Such doubts are based on the view that the outnumbered
minority give their consent to the empowerment of the majority only with the
proviso that they themselves retain the opportunity in the future of winning
over the majority with better arguments and thus of revising the previous
decision.”46

Because the discursive process of opinion- and will-formation briefly outlined

above makes “possible rational agreement even between strangers,”47 it will,
according to Habermas, constitute an adequate response to the claim by
Eurosceptics that it is impossible to turn the EU into a democratic polity in the
absence of a European nation that could serve as its demos. For, the discourse’s
ability to forge bonds of solidarity among strangers carries the implication that
the required nation could be brought about by the discourse itself. The nation, in
this view, is not a given community upon which democracy could be established,
but is an association called into being by those who want to regulate their
common life on the basis of reciprocity. It is, in other words, not a precondition
for, but rather, a product of democratic politics. If the discursive path of
deliberation and consensus were followed, then Europeans may eventually be
able to transform themselves into a “nation of citizens” that, in turn, could be
regarded as the self-legislating demos of the EU. This nation, Habermas explains,

“must not be confused with a community of fate shaped by common descent,

language and history. This confusion fails to capture the voluntaristic
character of a civic nation, the collective identity of which exists neither
independent of nor prior to the democratic process from which it springs.
Such a civic, as opposed to ethnic, conception of ‘the nation’ reflects (…) the
fact that democratic citizenship establishes an abstract, legally mediated
solidarity between strangers.”48

46
Ibid, 179.
47
Habermas, The Inclusion of the Other, supra, n 7, 137-138.
48
J Habermas, “Why Europe Needs a Constitution” (2001) 11 New Left Review, 15-16.

Legisprudence Vol I, No 2
 Hong Quoc Loc 169

Though political scientists are quick to point out to a host of practical

problems which the discursive method of demos creation would encounter should
it ever be applied, the most fundamental objection to this method seems to reside
in what Habermas himself has called the “voluntaristic gap” among Europeans.49
In order to jumpstart the discourse that would eventually transform the EU into a
true democracy, it is necessary that Europeans “reciprocally recognize one
another as free and equal” first.50 Only if they were willing to radically expand
their national network of mutual recognitions, may it be possible to arrive at the
transnational European democracy envisioned by Habermas in the end. The
prevalence or resurgence of Euroscepticism in many EU member states, however,
strongly suggests that the will to do so cannot be safely assumed among EU
citizens.51 The attempt to generate democratic legitimacy for EU legislation
through discourse, therefore, appears to be a project whose prospect of success is
extremely uncertain.
In view of this and other problems, it seems much more practical to explore
whether European law in general and European majority legislation in particular
could be democratically legitimized on the basis of the low level of reciprocity
currently available in the Union. We should, in other words, find out whether it is
possible to arrive at democratic law if there were no European demos that are
capable of self-legislation. The question to be answered, then, is not the question
what it would take to construct a sufficiently cohesive European people “that can
carry the weight of effective and democratic governance.”52 It is rather the
question whether it is possible to establish the democratic credentials of EU
legislation in the absence thereof. A theory of democracy elaborated by Kelsen
during the Weimar Republic indicates that this possibility certainly cannot be
ruled out.

C. DEMOCRACY BEYOND THE NATION-STATE

1. Kelsen’s Reinterpretation of the Majority Principle

In this theory, Kelsen seeks to reconcile the principle that every citizen in a
democracy is politically autonomous, with the fact that laws in such a polity are

49
As cited in J P McCormick, Weber, Habermas, and Transformations of the European State:
Constitutional, Social, and Supranational Democracy (Cambridge University Press, 2007), 219.
50
Habermas, The Inclusion of the Other, supra, n 7, 135.
51
McCormick, Weber, Habermas, and Transformations of the European State, supra, n 49, 213.
52
Cederman, “Nationalism and Bounded Integration”, supra, n 5, 157.

Legisprudence Vol I, No 2
170 The Mega-Leviathan and Its Democratic Basis

usually enacted by the majority.53 Politically autonomous is, in Kelsen’s view, the
individual who is only subject to the laws that he has enacted himself and not to
those made by others.54 The fact, however, is that virtually nobody is autonomous
in this sense when he or she enters the world. Everybody is usually born into a
legal order that already exists, a legal order that one, for obvious reasons, could
not have helped to create, but that one is nevertheless compelled to obey.55 Thus,
from the very moment of their birth, citizens are already ruled by laws that others
have enacted, before they have the opportunity to enact their own laws
themselves.56 They are, in other words, already governed, before they get the
chance to be governors. In order to be politically autonomous, each of these
citizens must, therefore, have the possibility to abolish or amend the legislative
decisions that others have taken and that he or she does not like.57 Or to reverse
Rousseau’s famous words: Man is generally born “in chains”, so his liberation
must be the ultimate aim of democratic politics.58 The essence of political
autonomy is, then, not primarily the ability to make one’s own laws, but rather the
capacity to replace laws that others have made with self-legislation. Viewed from
this perspective, from the perspective of those who want to liberate themselves by
changing the existing legal order, the majority principle constitutes, Kelsen points
out, the shortest route to their goal, because under the reign of this principle the
number of votes that those who want to achieve legal change are required to get,
is considerably smaller than the number of votes that they would have to gain, if
unanimity were the principle by which the game must be played.59 It is true that,
viewed from the perspective of democracy understood as popular self-legislation,
an individual could only be considered really autonomous if the legal norms
governing him were enacted on the basis of unanimity. This is the reason why the
social contract that established both the democratic polity and the majority
principle must be unanimously concluded. The drawback of the unanimity

53
H Kelsen, “On the Essence and Value of Democracy”, B Cooper and S Hemetsberger (tr), in
A J Jacobson and B Schlink (eds), Weimar: A Jurisprudence of Crisis (Berkeley, University of
California Press, 2000), 84-109.
54
Ibid, 85: “A politically free person is one who is subject only to his own, not to an alien,
will.”
55
Ibid, 87: ‘‘Generally, one is born into a finished state order, in whose creation one did not take
part, and which one therefore approaches from the start as an alien will. Only the furtherance
and modification of this order is at issue. From this point of view, however, the principle of
absolute (and not super) majority represents the relatively closest approach to the idea of
freedom.’’ (emphases supplied).
56
Ibid.
57
Ibid.
58
Rousseau, The Social Contract, supra, n 20, I, 1, 49: “Man was born free, and he is
everywhere in chains.”
59
See D Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller
in Weimar (Oxford University Press, 1999), 139-140.

Legisprudence Vol I, No 2
 Hong Quoc Loc 171

principle would, however, reveal itself in a dramatic manner at the moment that
amendments to these norms must be made. It would, then, turn out that the level
of individual autonomy is much higher under the majority principle than under
the principle of unanimity.60 In the day-to-day reality of democratic politics, says
Kelsen, “the individual is free only at one moment, only while voting, and only if
he votes with the majority and not with the outvoted minority.”61

“But even one who votes with the majority is no longer subject to his own
will alone. He discovers this as soon as he changes the will expressed in the
vote. The legal irrelevance of such a change of will reveals only too clearly
the alien will, or―speaking nonmetaphorically the objective validity of the
social order to which he is subject. He must find a majority for his change of
will if he, the individual, is once again to be free. And this accord between the
will of the individual and the governing will of the state becomes more
difficult, this guarantee of individual freedom lessens, the higher the majority
necessary to create a change in the will of the state. It would be as good as
eliminated, were unanimity required. Here we see a highly peculiar ambiguity
of the political mechanism. That which earlier, at the founding of the state
order, served to protect individual freedom (...), becomes its shackle if it is no
longer possible to escape the order.”62

Since the unanimity principle constitutes a virtually insurmountable obstacle

to any change in the status quo, and since political autonomy is conceived as the
ability to escape from the existing legal order by changing it, Kelsen concludes
that it is the majority principle, rather than the unanimity principle, which is most
conducive to the right to self-determination that every citizen of a democratic
state is entitled to enjoy.63 Expressed in the more general terms of democratic
theory, it could then be said that the majority principle is the principle that is most
protective to the political autonomy of those citizens who belong to the minority.
The position of a minority, which is defeated by the majority in the political arena
could, after all, be compared to that of citizens who have been born “in chains”:
They too want to escape from the laws that the prevailing majority has enacted. In
order to do so, defeated minority members only need to win enough votes to form
a new legislative majority―a goal that, for obvious reasons, is much easier to
achieve than when unanimity is required in order to make possible amendments

60
Kelsen, “On the Essence and Value of Democracy”, supra, n 53, 87.
61
Ibid, 86.
62
Ibid, 87 (emphases supplied).
63
Dyzenhaus, Legality and Legitimacy, supra, n 59, 139-140: “Only the alteration of this order
can be in question, and for this reason the simple majority principle is relatively speaking the
best approximation to the idea of liberty.”

Legisprudence Vol I, No 2
172 The Mega-Leviathan and Its Democratic Basis

to the rule of existing laws. For them, the majority principle is simply the
principle that is able to generate the relatively highest level of political autonomy.
Viewed from this perspective, it could then be argued that the fact that majority
legislation is accepted as democratic is not simply due to the impossibility of
achieving unanimity in practice.64 The acceptance thereof is based on the insight
that under the majority principle, citizens are actually more politically
autonomous than under the unanimity principle, which means that it is much
easier for them to escape from the laws that others have enacted and to make their
own laws themselves. “From this idea,” writes Kelsen,

“the majority principle is to be derived. Not, however,―as tends to happen

―from the idea of equality. That human wills are equal is indeed a
precondition of the majority principle. But this being equal is only figurative;
it cannot mean that human wills or personalities can actually be measured or
added together. It would be impossible to justify the majority principle by
saying that more votes have a greater total weight than fewer votes. We cannot
conclude positively, from the purely negative presumption that one person is
worth no more than another, that the will of the majority should prevail. If one
attempts to derive the majority principle only from the idea of equality, it does
indeed have that purely mechanical, even senseless, character with which the
autocratic side reproaches it. It would only be the roughly formalized
expression of the experience that the many are stronger than the few; the
maxim ‘might makes right’ would be overcome only insofar as it would be
raised to a legal principle.”65

In the light of Kelsen’s reinterpretation of the majority principle, it could be

argued that this principle should primarily be viewed as a mechanism of
liberation that enables minority members to break free from the alien will
expressed in the laws that others have imposed upon them, rather than as a device
through which the ideal of popular self-legislation could be realized. Given the
fact that in a national democracy, laws are usually enacted by

1. the majority of legislators who, in general, are voted into office by

2. the majority of the electorate, which, in turn, is

64
As that has been claimed in, for instance, Burt, The Constitution in Conflict, supra, n 18, 374:
“Unanimous consent is itself, however, not a working rule that satisfies democratic principle so
long as one dissenter, by withholding consent, can impose his will on others. This is the
inescapable dilemma at the core of democratic principle: that unforced unanimity is the only
legitimate basis for an equal relationship and that this state is almost impossible to obtain in
practice.”
65
Kelsen, “On the Essence and Value of Democracy”, supra, n 53, 87.

Legisprudence Vol I, No 2
 Hong Quoc Loc 173

3. the majority of citizens who constitute the people,

liberation amounts in practice to an opportunity for

1. the oppositional minority in the legislature to become a new legislative

majority,
2. the minority of the electorate to transform itself into a majority of voters, and
3. the minority of citizens among the people who do not have voting rights yet to
join the majority of those who do.

The Kelsenian insight that, viewed from the perspective of day-to-day

practice, the majority principle is the principle of legislation comparatively most
conducive to the political autonomy of minority members in the triple sense of
the word outlined above, suggests that the legitimacy of majority legislation could
be established on the basis of a conception of democracy other than democracy
that is understood as popular self-legislation. Within the framework of this
alternative conception, laws promulgated by the majority are considered
legitimate, not because they could ultimately be traced back to the consent of the
minority that opposes their promulgation, but rather, because the majority
principle in accordance to which they are promulgated constitutes the relatively
shortest route via which the three categories of minority members listed above
could liberate themselves from these laws by modifying them.
The essence of that alternative conception is, in fact, already discernible in the
argument that law’s democratic legitimacy flows from the opportunity law
subjects have to achieve their liberation therefrom: This opportunity must be
granted to them by those who happen to possess the power to impose it upon
them in the first place. The changes in the existing legal order could, in other
words, only be achieved through the process of majority formation discussed
above if governing lawmakers are willing to permit those who are subject to their
laws to amend them. The willingness of incumbent law authors to allow law
addressees to achieve liberation from laws that are imposed upon them could,
then, be construed to signify an exercise of self-restraint on the part of these law
authors,66 which means that they do not intend to make their legislative
imposition upon others permanent, but instead provide those who are subject to it

66
Compare Kelsen, “On the Essence and Value of Democracy”, supra, n 53, 101: “Where the
people assembles, the presence of physical power is still too noticeable to allow more than
submission to the absolute majority, and the absolute majority cannot refrain from imposing its
will on a minority solely because it is somehow qualified. Only in parliamentary procedure is
such rational self-restraint possible as a constitutional institution. It means that the catalogue of
basic rights and rights of freedom turns from protection of the individual from the state to
protection of a minority, a qualified minority, from the absolute majority.” (emphases supplied).

Legisprudence Vol I, No 2
174 The Mega-Leviathan and Its Democratic Basis

the opportunity to escape therefrom through the majority formation process. If

self-restraint by law authors towards law addressees were what makes laws
democratically legitimate, then we may call the democracy within the normative
framework of which the legitimacy of laws is conceived in terms of amendments
that law subjects could make to these laws, democracy understood as legislative
self-restraint. Since this democracy conception requires that law authors make it
possible for law addressees to amend or abolish the laws to which they are subject
through the process of majority formation in order to render these laws legitimate,
we may, on the basis of what has been discussed above, define democracy so
understood as follows: It is a political system in which all the three categories of
majority among the polity’s demos are entitled to govern the whole polity through
the laws that they enact, on the condition that the three corresponding categories
of minority are granted a legally guaranteed opportunity to become members of
the new legislative majorities. This definition of democracy is, as you can see, not
only very similar to the operational definition of democracy traditionally
understood, it also corresponds neatly to the way democratic government works
in practice. The rationale behind both the definition and the practice, however,
has changed. The legally institutionalized circulation of majorities and minorities
is no longer intended to approach the ideal of popular self-legislation, but to make
possible the liberation of law subjects.

2. The Democratic Basis of the European Mega-Leviathan

Kelsen’s reinterpretation of the majority principle and the related argument that
legal norms owe their democratic legitimacy to the ease with which they could be
either changed or nullified have not been able to convince everybody in the
community of legal theorists. Wocjiech Sadurski, for instance, is particularly
critical of the way in which Kelsen has attempted to establish the democratic
credentials of legislation promulgated on the basis of that principle. “While it is
an important virtue of a democratic law-making system that it leaves open the
avenues for the revisions of enacted laws, it would be ironic,” he elaborates,

“to see the sources of political autonomy (as it was ironic to see the sources of
legitimacy of laws) in the ease of the repeal of disliked laws. I find it an
unattractive conception of political freedom to be told that, while the laws
which govern my behavior are repulsive (ex hypothesi), I can nevertheless
work towards repealing them, and the repeal is easier than in any other

Legisprudence Vol I, No 2
 Hong Quoc Loc 175

alternative system of law-making. This sounds to me like an excessively thin,

negative, and defensive account of what political autonomy is grounded in.”67

Sadurski’s case against Kelsen might be valid in a nation-state where a

sufficiently high level of reciprocal solidarity tends to exist among the citizens
thereof, but it is far from convincing in a multinational polity populated by
strangers who, in general, want to remain strangers for one another.68 In light of
the fact that the necessary kind of solidarity is only available at a very low level
in a mega-leviathan like the EU, it is decidedly wise to opt for Kelsen’s negative
account of political autonomy as the democratic justification for laws
promulgated therein. Indeed, the “thin, negative, and defensive account” of
political autonomy decried by Sadurski seems to fit quite well with the “thin”
demos that, according to Neil MacCormick, is currently available on a European
scale.69
Given the lack of sufficient reciprocal solidarity among the European citizens
who comprise this “thin” demos, European law in general and European majority
legislation in particular would, as already pointed out, inevitably be perceived by
law subjects as a form of heteronomy if the EU were conceived as a self-
legislating polity. Should this mega-leviathan, however, be established on the
basis of democracy as legislative self-restraint, then we would be able to argue
that the aforementioned legitimacy problem could be significantly reduced if not
completely neutralized.
Underlying our argument is the insight that this alternative conception of
democracy could confer legitimacy on law at a much lower level of reciprocity
than is the case with the traditional conception of democracy as popular self-
legislation. The fact that within the normative framework of democracy as
legislative self-restraint law subjects are permitted to liberate themselves from
undesirable laws means that their right to self-determination is recognized by
those who have imposed these laws upon them. This recognition, in turn, implies
that our alternative conception of democracy, like its traditional rival, is based on
reciprocity. The liberation strategy that it employs to give concrete shape to
reciprocal relationships among all polity members, however, brings about a
particularly fortunate consequence for the use of majority legislation in the
administration of a multinational polity: The fact that it will be perceived as alien
domination by outvoted minority members does not necessarily yield the

67
W Sadurski, “Majority Rule, Legitimacy and Political Equality” (Florence, European
University Institute Working Paper, LAW No. 2005/21, 2005), 17. This paper can be accessed
via this link: http://cadmus.iue.it/dspace/handle/1814/3925, last accessed on 10 October, 2007.
68
Habermas, The Inclusion of the Other, supra, n 7, xxxvi.
69
N MacCormick, “Democracy, Subsidiarity, and Citizenship in the ‘European
Commonwealth’” (1997) 16 Law and Philosophy, 342.

Legisprudence Vol I, No 2
176 The Mega-Leviathan and Its Democratic Basis

conclusion that this legislation is democratically illegitimate. On the contrary, this

perception constitutes the point of departure for a political process that should
culminate in the liberation of those who do not want to be governed by laws that
the prevailing majority has imposed upon them. The factor decisive for law’s
democratic legitimacy is not that law addressees could refer to themselves as the
collective author of laws under whose governance they have to live.70 What
counts in the end is their possession of the opportunity to repeal (or amend parts
of) legislation that they no longer deem to be desirable.
This means, then, that the required level of reciprocal solidarity in a
democratic leviathan does not need to be so high that members thereof could
recognize majority legislation governing their conduct as a set of collective
decisions that they themselves have jointly made. It is sufficient that they are
prepared to grant to fellow members who are strangers to them the right to escape
from the reign of their legislation should these strangers wish to do so. The lower
level of reciprocal solidarity required, in turn, yields the implication that the circle
of law addressees could be expanded far beyond the people in the sense of a
relatively cohesive body of citizens that is able to shoulder the weight of
democratic politics. Should democracy, in other words, be conceived as
legislative self-restraint, then it would no longer be necessary to attain the level of
reciprocal solidarity normally available only in a nation in order to sustain the
process of majority formation.
Viewed from the perspective of this conception of democracy, the fact that the
EU is a vast polity that cannot be established on a body of citizens comparable to
a nation does not need to constitute an insurmountable difficulty. For, it is
possible to make the case that the population thereof could serve as the
democratic basis upon which its administration is to be established.71 European
democracy could, then, be defined as a system of government in which the
majority of the EU population is authorized to govern the whole Union through
its legislation, on the condition that the minority thereof is permitted to become a
new legislative majority itself. This definition of European democracy, however,
does not imply that the requirement of qualified majority should no longer be
adhered to in the EU’s legislative process. There may be special cases in which

70
Lindahl, “Zelfregulering”, supra, n 16, 42: “Aansluitend op een inzicht van Van Roermund
zou ik de stelling willen verdedigen dat het ‘zelf’ van zelfregulering veeleer een reflexieve
verhouding van een collectief betreft, een verhouding waarbij een groep individuen aan zichzelf
refereert als degene die gezamelijk – als ‘wij’ – handelt door een rechtsnorm in zijn eigen belang
te stellen.” (“Drawing on an insight by Van Roermund, I would like to defend the proposition
that the ‘self’ of self-regulation rather indicates the reflexive relationship of a collective body,
whereby a manifold of individuals refer to themselves as the body that acts jointly - as a ‘we’-
by positing a legal norm in its own interest.”)
71
G van Roermund, “Wetgeving in de Eerste Persoon Meervoud: Identiteit, Representatie en
Reflexiviteit” (2004) Nederlands Tijdschrift voor Rechtsfilosofie en Rechtstheorie, 177-179.

Legisprudence Vol I, No 2
 Hong Quoc Loc 177

collective decisions must be arrived at on the basis of a qualified majority:

Adherence to this requirement may (occasionally) be necessary to protect
permanent minorities, that is to say, minorities who, in general, have principled
policy preferences that are not shared by the polity’s majority. For that reason,
they may not always be able to find (enough) coalition partners with whose
support they could liberate themselves from laws they dislike through the
formation of an absolute majority. Because of this inability, the Kelsenian
promise of liberation would remain largely an empty shell for them, which, in
turn, implies that they stand in need of a higher level of protection against the
ebbs and flows of democratic politics.72 The use of qualified majority in cases
concerning these minorities, therefore, ought not to be viewed as a contradiction
of, but rather, as an indispensable complement to the principle that the
construction of a simple majority is the main route via which the repeal or
modification of undesirable legislation is to be achieved.
Should this Kelsenian principle be adopted as the democratic foundation of
the EU, then several hundred millions of its citizens may, arguably, be able to
maintain their status as the major determinant of law’s content without getting
caught in the democratic dilemma which would certainly materialize in the case
that European democracy is understood as popular self-legislation:73

“If this great mass of individual persons is excluded from any say in the
conduct of their commonwealth’s affairs, we have indeed a serious democratic
deficit. Yet finding ways of including them all on fair and equal terms seems
vastly difficult.”74

It may be possible to avoid this dilemma, because the Kelsenian conception of

democracy as legislative self-restraint harbors the promise that democratic
legitimacy of law in general and that of majority legislation in particular could be
established without requiring those who have to live under its governance to
always take part in its promulgation. The mass participation of law subjects is
only necessary in the case that the authorship of (majority) legislation must be
attributed to the people as a whole. Their participation, after all, is what lends
credence to the argument that, in the final analysis, the people are the author of all
laws. The strategy through which our alternative conception is made operational
72
Habermas, “Why Europe Needs a Constitution”, supra, n 48, 23: “Structural minorities limit
the range of valid majority decisions. In such situations, legitimacy can only be secured on the
condition that some areas are reserved for consensual negotiations.” See also K van der Wal,
“Democratie als Politiek Systeem, als Idee en als Levenshouding” (2007) Tijdschrift voor
Rechtsfilosofie en Rechtstheorie, 44.
73
Jolly, “A Demos for the European Union?”, supra, n 6, 14.
74
MacCormick, “Democracy, Subsidiarity, and Citizenship in the ‘European Commonwealth’”,
supra, n 69, 343.

Legisprudence Vol I, No 2
178 The Mega-Leviathan and Its Democratic Basis

in the practice of democratic politics, however, implies that the main source of
law’s legitimacy has been relocated from authorship by the people to the
liberation of law addressees. This relocation renders less relevant the mass
involvement of European voters in the enactment of laws, which, in turn, makes
European legislation less vulnerable to Eurosceptics, who often attempt to
impugn its democratic credentials by referring to “the absence of European-wide
political parties and general voter apathy in the elections of the European
Parliament.”75
The general lack of public involvement, in whatever shape or form, does not
need to be problematic to the democratic legitimacy of EU laws as a whole,
because what counts in the end is not the mass participation of law subjects in the
enactment of “run of the mill” legislation, but their ability to liberate themselves
from those specific measures that they no longer want to keep on the book. This
liberation strategy could plausibly be construed to include as well the right of
European citizens to block the codification of political designs, which they, for
whatever reasons, fiercely oppose. Voters from EU member states may be
reluctant to take part in customary matters like the elections of the European
Parliament, but they do not seem to display a similar reluctance, when they want
to obstruct the promulgation of EU measures whose content they find particularly
repulsive. This is a “negative” form of democratic participation that we should
welcome. It is, after all, neither necessary nor possible to generate among citizens
of a continental empire like the EU a high level of public involvement in the
routine governance thereof. Why should they be involved in the creation of laws
to which, in general, hardly anybody seriously objects? Their democratic
prerogative as the supreme legislator is only really at stake in the exceptional
instance that they want to nullify a repugnant law. Should that exception therefore
occur, then it is imperative that EU citizens could deploy their sovereign power to
veto the law in question.76 Their ability to invalidate laws they deem
objectionable is what marks them as the true sovereign of a democratic unit. From
this point of view, the case could be made that the referenda by means of which
the French and Dutch electorates have voted down the “Treaty establishing a
Constitution for Europe” should not be interpreted as major setbacks signifying a
deep crisis in the EU, but rather, as indispensable reaffirmations of its democratic
credentials. Without these occasional vetoes, it would, arguably, become
extremely difficult, if not virtually impossible, to sustain the conviction among

75
J Bowman, “The European Union Democratic Deficit” (2006) 5 European Journal of Political
Theory, 197.
76
C Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, G Schwab (tr),
(Cambridge, Mass, MIT Press, 1988), 5-15.

Legisprudence Vol I, No 2
 Hong Quoc Loc 179

European citizens that they are and remain the ultimate determinant of the EU
laws that govern them.77
In turn, this argument would yield the inference that the democratic deficit
suffered by the EU ought not to be attributed to the absence of a European demos
and the related lack of public interest for European affairs, but rather, to the
unwillingness of the Union’s political elites to grant citizens thereof the
opportunity to express their voice in matters that they deem to be truly important
to them.78 The practical implication of this inference, then, is that the question of
whether Turkey should be admitted to the EU could be considered the litmus test
for the professed commitment by European politicians to overcome the
democratic deficit.79 If they were sincere in their wish to bridge the gap
separating them from their electoral constituencies, then they should provide
European voters with an occasion by means of which they could wield their
decisive influence on the outcome of this crucial affair.80 Proponents of Turkey’s
accession to the EU may be able to cite thousand and one technocratic reasons,
ranging from economics to geopolitics, to support their point of view, but the
judgment as to whether these reasons are strong enough to justify its accession is,
in the end, an intensely political judgment,81 which, therefore, should be left to
the Union’s sovereign electorates.82

77
Cf W H Riker, Liberalism Against Populism: A Confrontation between the Theory of
Democracy and the Theory of Social Choice (San Francisco, W H Freeman, 1982), 244.
78
G Parker, “EU Citizens Want Referendum on Treaty”, Financial Times (2007, June 18), 2.
79
For a detailed survey of the EU’s public opinion concerning this issue, see N Monceau, “Vers
l’Adhésion de la Turquie à l’UE: Une Candidature à Rebondissements”, in C Bélot and B
Cautrès (eds), La Vie Démocratique de l’Union Européenne (Paris, La Documentation
Française, 2006), 139-152.
80
Ibid, 148. Referring to a set of interview questions regarding the cultural differences between
EU member states and Turkey, Monceau writes: “Les citoyens européens ont une opinion plutôt
négative sur l’ensemble de ces questions. 54% d’entre eux jugent en effet que les différences
culturelles entre la Turquie et les Étas membres de l’Union européenne sont trop importantes
pour permettre l’adhésion turque (33 % pensent le contraire).” (“European citizens have a rather
negative opinion on this set of questions. 54 % among them judge effectively that the cultural
differences between Turkey and the Union’s member states are too important to permit the
Turkish accession (33 % think the opposite).”
81
C Schmitt, The Concept of the Political, George Schwab (tr), (Chicago, University of
Chicago Press, 1996), 27.
82
Monceau, “Vers l’Adhésion de la Turquie à l’UE”, supra, n 79, 149: “Suite à une révision de
la Constitution adoptée en janvier 2005 sur l’initiative du Président de la République française
Jacques Chirac, tout nouvel élargissement qui suivra les adhésions de la Bulgarie et de la
Roumanie (prévues en 2007) sera en effet soumis à l’organisation d’un référendum en France.”
(“As a result of an amendment to the Constitution, adopted in January, 2005 at the initiative of
Jacques Chirac, President of the French Republic, every new enlargement which follows the
accession of Bulgaria and that of Rumania (expected in 2007), shall have to be submitted to a
referendum in France.”)

Legisprudence Vol I, No 2
180 The Mega-Leviathan and Its Democratic Basis

D. KELSEN AND THE SPELL OF THE DEMOS

The conclusion that can be drawn on the basis of the argument outlined above
should be clear by now: It is entirely possible to break the spell of the demos that
has haunted the European debate for so long. Thanks to Kelsen, it is no longer
necessary to attribute the general authorship of EU legislation to a European
people that have yet to come into existence. It is sufficient that European citizens
be able to accomplish the liberation from or block the enactment of those EU
measures that engender in them a particular dislike. As long as they could
exercise their sovereignty in those exceptional cases, when their voice truly
matters, we are entitled to maintain that their Union, indeed, is a democratic
mega-leviathan.
In spite of the allegation that it is excessively negative, Kelsen’s alternative
theory of democratic legislation, in fact, shares a remarkable similarity with the
theory of democracy advanced by Karl Popper, who, like Kelsen, was a former
subject of the multinational Habsburg Empire. As is the case with Kelsen, Popper
went out of his way to emphasize that democratic legitimacy is to be generated in
a negative way. The democratic essence of a government resides, according to
him, precisely in the legally institutionalized opportunity that the governed
possess to dismiss their governors.83 It is through the threat of dismissal that
citizens of a democratic polity may be able to influence the actions of those who
rule them, he contends.84
The negative approach defended by Kelsen and Popper, arguably, constitutes
an alternative tradition of democracy in the West, one which has long been
overshadowed by the more affirmative doctrines elaborated by, for instance,
Habermas. This approach, as we have seen, gives rise to the insight that
democracy could be established on a basis other than a cohesive demos capable
of self-legislation. It could be borne as well by a body of citizens who are
strangers for one another, but who nevertheless are prepared to grant one another
the right to liberation. Should this insight become prevalent among the population
of Europe, then we may be able to accomplish the political ideal pursued by
Habermas, without having to confront any problem which we would have to
address within the framework of his theory: The construction of a mega-leviathan
populated by “strangers who renounce violence and, in the cooperative regulation
of their common life, also concede one another the right to remain strangers.”

83
K Popper, The Open Society and Its Enemies, volume 1 (London, Routledge, 1974), 124.
84
Ibid, 125: “For although ‘the people’ may influence the actions of their rulers by the threat of
dismissal, they never rule themselves in any concrete, practical sense.”

Legisprudence Vol I, No 2