Deflating the Problem of Democratic Deficit by Reconceptualising the Agential Role of the Demos

Globalization has rendered the question of the legitimacy of transnational political authority increasingly salient (Buchanan and Keohane 2006, 406). The difficulty in arriving at an affirmative answer has been a central theme of descriptions of the post-Maastricht European legal order. On the one hand, the EU’s claim to consequentialist legitimacy (e.g., MacCormick 1997; Majone 1998) has been undercut by the repercussions of the 2008 financial crisis (e.g., Weiler 2012). On the other, the EU’s claim to democratic legitimacy lacks an ostensible prerequisite, namely, the existence of a unitary EU demos. The normative importance of the demos lies in its role, however qualified or attenuated, as agent of the applicable laws. Existing strategies for reconciling the EU’s legitimacy with the absence of an EU demos concede that this agential role will not be performed (e.g., Habermas 2001; Liebert 2012). An alternative approach is to seek to reconceptualise the agential role itself. Accordingly, I look to the theory of group agency to explore the possibility that, insofar as it applies to each of their respective jurisdictions, a set of several peoples might be the agent of the same law. In principle, such an approach would permit a transnational institution such as the EU to invoke, ‘the… primacy of the national communities as the… source of [its] “legitimacy”’ (Weiler 2012, 268). The two most pertinent theories of group agency are substantive majoritarianism, which holds that a group decides on the act that is preferred by a majority (e.g., Levine and Plott 1977; Austen-Smith 2006; Arrow 2010), and procedural unanimitarianism, which holds that a group decides according to the unanimously preferred procedure for settling inter-member disagreement over the group’s act (e.g., Tuomela 1995; Copp 1995; Bratman 2017). Crucially, substantive majoritarianism and procedural unanimitarianism yield a hitherto overlooked synthesis, namely, procedural majoritarianism: the theory that a group decides according to the decision procedure that is majority preferred. I propose to investigate the potential of procedural majoritarianism, understood as a theory of the agency of a demos, to solve the puzzle of how Europeans are committed both to democracy and to pan-European governance. For the procedural majoritarian, it is the popularity of the decision procedure that counts, not the popularity of its outcomes or the provenance of its specified decision-makers; a demos is the author of its laws just in case its laws are determined in accordance with a popular constitutional regime. Accordingly, an institution’s democratic legitimacy does not depend on its relation to a single demos, but, rather, on its relation to any and every demos for which it forms part of the procedure for resolving domestic policy disagreement. Thus, policy outcomes that partially share the same provenance in the act of a transnational institution may be democratically legitimate for different peoples. It follows that the democratic authority that the EU may claim for its acts derives from the popularity of the individual constitutions that accord it authority over its constituent European demoi. The absence of any pan-EU demos need therefore entail no democratic deficit.