New policies but old politics: the pandemic and our democratic future

My paper aims to reconstruct and justify, with the help of the conceptual tools provided by Weber and Habermas, the central position of the constitution-making process that establishes the governmental institutions of political communities, with a focus on the EU democratisation. The legal-institutional integration determines the structure of democratic society, providing an answer to the questions of how legitimate norms can be produced and how legitimacy can be brought out from legality within a politically autonomous community. Looking closely at current political evolution, we must pay attention to the following question: "what democratic form has the EU taken and can it take?". From this perspective the integrative emerges the relevance of two processes: 1) the EU constitutionalism as a symbolic solidarity moment with which the European integration can enter into the collective consciousness of European society ("integration by constitutions"); 2) the prominence of the European Parliament as the institution that pursues European solidarity through the EU democratic principle (Articles 9-10 TEU), binding every national individual to European citizenship and representing him directly at EU level. An approach based on the comparative study of (European) Constitutional law, case-law of ECJ and national Constitutional Courts allows explaining that these two processes are closely linked, developing and reinforcing each other, building "an ever closer union among the peoples of Europe" that goes beyond the idea of the European Economic Community (economic integration): the constant transition from international treaties (relating to the economic sphere) to the attempt of a European constitution and the subsequent treaties produced the transition from a Parliament composed of national delegates (with a censure-motion power on the Commission) to a directly-elected Parliament with broad powers that the process of constitutionalization (legal-institutional integration). European integration, primarily focused on economic integration, only secondarily pursued the legal-institutional integration. This perspective allows us to criticize its prevalent theoretical framework: European integration cannot be driven by economic cooperation, but the latter must undergo institutional-legal integration. The European Parliament should therefore restrict the ever stronger technocratic claims of the Commission, the European Council, the ECJ, and the ECB, reinforcing its position as locus of European political problem-solving. The pandemic crisis is showing the formal European 'path-dependent' paradigm: an executive self-authorization combined with a legislative disempowerment, both at the national and the European level. If, from a functional viewpoint, European solidarity was the only measure needed to deal with a symmetrical shock, from a normative viewpoint we are witnessing a lack of democratic-parliamentary participation. The European policy shift cannot refer to a politics that prioritizes technocratic aspects over effective citizen participation in the name of the urgency of the problems to be addressed. What distinguishes demo(i)cratic politics from other types of politics is how decisions are formed and implemented, beyond their actual content. The match between the demands of the European Parliament and the proposals of the European Commission and the European Council is merely contingent, not structural. But democracy requires a strong structural link between policies (the “content”) and politics (the “how”).