In this conversation at the Review of Democracy, Tom Theuns – author of Protecting Democracy in Europe: Pluralism, Autocracy and the Future of the EU – reflects on EU institutions’ rather narrow conception of democracy and their complicity in democratic backsliding in EU member states; considers how a more coherent and effective response to the latter processes could be designed; critiques the EU’s ‘membership fatalism’ and explains why he has proposed an expulsion mechanism; and positions his approach within political theory and discusses the reception of his ideas also beyond that field.
Tom Theuns is a Senior Assistant Professor of Political Theory and European Politics at the Institute of Political Science, Leiden University.
Protecting Democracy in Europe: Pluralism, Autocracy and the Future of the EU has been published by Hurst Publishers and Oxford University Press (US).
Ferenc Laczó: Your new book makes several novel claims and draws some remarkable conclusions. I had the impression that your intention was to connect democratic theory to the study of the contemporary European Union and thereby develop a critical reassessment. You seem particularly critical of how EU institutions tend to conceive of democracy, what you call ‘democracy without politics’ in the book, and contrast that conception with a wider and richer understanding of ‘pluralist democracy.’ How would you characterize EU institutions’ current conception of democracy and what might be sourly absent from that conception?
Tom Theuns: This part of the book builds on work which I’ve done with Alvaro Oleart: we did a discourse analysis of speeches by European Commissioners within a certain framework and in my new book, I expand that a bit temporarily. We looked at all of the speeches by the most relevant Commissioners that use the word “democracy” and do a framing analysis whereby we try to find out what these Commissioners mean by that word. What we find is that Commissioners use democracy in a very specific, very technocratic sense. They use it extremely often to refer to the rule of law and fundamental rights. They also use it to refer to things like quality of information – which is unsurprising if you look at the specific things that they’ve been developing at the European level with regard to democratic instruments. The basic idea here is that the better the information the citizen has, the better democracy can function. It’s a very epistemic conception of democracy.
What’s even more striking is what is not there. You don’t have many references to parliaments – the European Parliament is referred to sometimes but always in a very abstract way. You basically never see references to political contestation and competition. There are very few references to elections and almost none to pluralism.
In speeches by Commissioners on democracy, you see an almost total absence of the core features of democracy, if you just take the standard definitions in political science.
We kind of expected we would find something like this, but the results went beyond our expectations.
Part of that is, of course, due to the nature of the beast – European Commissioners are not elected politicians in the standard sense of the word. But the results are interesting, I think, because they track quite closely the sort of approach that the Commission has employed in response to democratic backsliding in EU member states over the past years. They’ve taken a rather technocratic, legalistic, rule of law-focused approach to democratic backsliding while by and large sidelining questions of pluralism, competition between different ideas and ideologies, party politics, elections etc.
FL: In the second half of the book, you devote separate chapters to the questions of how to correct the EU’s complicity in democratic backsliding and how to cultivate pluralist democracy in Europe. What are some of the ways the latter could be done that have not been tried enough? Why do you consider the EU complicit in democratic backsliding in the first place and what implications should such complicity have when we try to design a more coherent and effective response?
TT: One of the reasons why I think EU actors should cultivate pluralist democracy to a far greater extent than they do is because they are complicit and have something to make up. There’s some really great work on the complicity of several actors in the EU in connection with specific instances of democratic backsliding – for example, Fabio Wolkenstein has done work on how the EPP is complicit in having protected Fidesz in a crucial period of backsliding in Hungary and Daniel Kelemen has developed similar points. What I wanted to show was that if we take seriously the idea of complicity, we can see that a far greater range of EU actors can be considered complicit in democratic backsliding.
I begin with reference to the book On Complicity and Compromise by Chiara Lepora and Robert E. Goodin. One of the things their complicity theory points out is that complicity by omission is equally relevant and equally weighty as complicity through positive contribution, i.e. through actions, even though complicity by omission works a little bit differently. It is about failing to respond appropriately to some wrongdoing when you had the duty to do so; it concerns a blameworthy failure to act. If you can be complicit for blameworthy failures to act just as you can be complicit for secondary contributions to a primary wrong, then the duties that derive from complicity apply there as well.
What kinds of duties are those? If you’re complicit in a primary wrongdoing as a secondary actor, you have responsibilities of redress, which are stopping the activity that makes you complicit, and you also have duties of reparation – to try to make good to some degree the harm that was done to those harmed by the primary wrong. This is the kind of structure that I use to think through complicity of EU actors.
Lots of EU actors – centrally the Commission but also member state governments and the European Council – are complicit for failing to act in the appropriate way given the kind of tools that they had available. If we take the member state level, which has barely been discussed: member states have the authorization under the Treaty on the Functioning of the European Union to take other member states to court for violating EU law – what is known as infringement procedure. In fact, it’s almost always the Commission that does it but member states also have that authority. So what I argue is that their failure to act, to respond to democratic and rule of law backsliding in other member states via, for example, the use of infringement procedures, makes them complicit to some degree. If that argument is convincing, then that means that a wide array of EU actors should behave differently for a start regarding those harmed by democratic backsliding and they should also act in terms of reparations.
Cultivating pluralist democracy then is one of the ways in which complicit actors can meet those duties of reparation. However, there are also independent reasons for why governments and EU actors, among others, should try to cultivate pluralist democracy in European Union member states.
Supranational integration means that if any member state becomes nondemocratic, that affects the democratic character not only of the Union as a whole through decision-making that incorporates and involves an autocratic member, but also the democratic character of every member state.
It means that the citizens of all those member states are bound by laws and policies that are co-decided by an autocratic government. In other words, member states have self-interested reasons to act and the self-protection of the EU system as a whole motivates action normatively. Cultivating pluralist democracy thus has different kinds of foundations that you can piece together.
What that implies is that there should be massive investment in democratic actors, such as civil society actors, critical academia, and critical media. I think it also implies, and that may sound more controversial, partisan support for opposition actors that are resisting democratic and rule of law backsliding. Generally speaking, we’re quite uncomfortable with that kind of support because the idea is that EU actors should be rather neutral when it comes to the domestic politics of member states.
I argue that, in the case of democratic backsliding, when the playing field is so distorted that we don’t have a fair democratic space anymore, partisan involvement is justified to the degree that it seeks to rectify that democratic playing field at least to some extent.
In practice, that can mean support for municipal councils led by the opposition, opposition politicians, opposition political parties, and so on.
FL: Next to depoliticization, your book also discusses what you call ‘membership fatalism,’ the somewhat curious idea that EU membership may be given up but cannot be revoked; that member states in a sense ‘own’ their membership. Remarkably, you are critical toward sanctions based on Article 7 procedures but also propose an expulsion mechanism. How would you justify those two at the same time? How come the heavier sanction, that is expulsion of a country from the EU, can be considered preferable from a democratic point of view over the lighter one which, after all, would only deprive governments of their voting rights?
TT: Let me try to make an analogy. When we think about domestic criminal law, there are certain types of sanctions which we consider illegitimate and there are other types of sanctions which we consider, generally speaking, legitimate. Think about the following: if I break criminal law, it’s a widely accepted view amongst criminal lawyers that it would be unacceptable for a state official to slap me in the face because of that, but it would be acceptable that I would go to prison, potentially even for quite a long time if my crime was very severe. If they could choose between the two sanctions, I think most people would choose getting slapped in the face over going to prison for a long time because it’s a much less severe sanction. We still consider that it’s off limits for a state official to slap us in the face when we break criminal law. The difference between a legitimate and an illegitimate sanction is not a question of severity.
My objection to Article 7 is not an objection based on its severity, which is something that some other people have objected to. My objection is based on it being anti-democratic. I argue that it’s anti-democratic because the sanction listed is a member state losing their right to vote in the Council while continuing to be held to their obligations under EU law and policy and continuing to be subject to them.
Sanctioning based on Article 7, I argue, violates a principle in democratic theory called the All-Subjected Principle, which is that all those that are subjected to a legal framework ought to have an equal stake in authorizing that framework.
I wouldn’t say the All-Subjected Principle is consensually accepted – which principle is? – but it’s a very widespread standard. It’s one of the main standards debated among democratic theorists as being the relevant inclusion standard for who should and who should not be included in a democratic community with the right to vote and to be elected. I think that the sanction listed in Article 7 violates that standard and that it’s anti-democratic for that reason.
I should add that there’s also a theoretical literature on when it might be legitimate for a sanction to be anti-democratic in defense of democracy: that’s the literature on militant democracy. In the last chapter of the book, I look at that literature and say that there are certain standards in that literature of militant democracy according to which militant sanctions may be legitimate. I try to identify two by drawing both on the classical literature on militant democracy like Karl Loewenstein back in the 1930s and more contemporary accounts like Alexander Kirshner’s account and Bastiaan Rijpkema’s account: one is that the response needs to be to an existential threat. If the threat to democracy is not existential, then you would say we don’t need to dirty ourselves by introducing anti-democratic sanctions, we can just respond with sanctions that are coherent with democratic values. The second condition is a kind of existential threat condition: it is a necessity condition that says that nothing else would possibly contain that threat, so the anti-democratic sanction becomes necessary to contain the existential threat.
That isn’t the case here because there is this other sanction which doesn’t violate fundamental democratic norms and would resolve the threat to the democratic character of the EU: that response would be expulsion when it comes to a frankly autocratic state.
I agree that in terms of severity, expulsion is the stronger response, but, differently from Article 7, it doesn’t violate fundamental democratic principles. It remains within the right of a supranational community to say to one of its members “we cannot countenance continuing supranational association with you because you do not respect minimal democratic criteria and thereby do not meet our inclusion criteria.”
FL: As we have discussed, you approach key questions of protecting democracy in the EU through the concerns and specific methods of political theory. How would you position your work within the field of political theory? Do you perhaps see yourself as the representative of a specific trend or school?
TT: The kind of political theory I do is often described as non-ideal theory. It’s not my favorite term because it immediately implies a lot of other debates about post-Rawlsian distributive justice, which my work doesn’t really engage with, but what I do can certainly be called applied political philosophy.
The idea is that I start from a deeply troubling real-world observations about the state of things – that can be the state of things within the EU or it can be the state of things regarding EU policy abroad, like democracy promotion in the neighborhood, which is what I did my PhD on.
My question then is how, given this context, ought we think through things like democratic legitimacy, both with a kind of critical edge (how do we critically engage what has happened and is happening on these normative criteria?) and prescriptively (what might that lead us to propose in terms of changes?).
Within that broad framework, the specific research I do is often focused on imminent critiques where you draw the standards from the practice itself. Within the EU context, a lot of the standard exercises come from looking at the treaties for the values and looking at how, for example, courts or theorists have interpreted those standards – such as, for example, Article Two of the Treaty of the European Union – and then seeing the degree to which certain policies or historical developments or legal proposals are coherent with those standards.
Even though I’m very interested in democratic theory more broadly, my research doesn’t engage the question of democratic legitimacy at a more fundamental level; I don’t try to justify for the most part why democracy might be a desirable system of government or whether it needs to have an absolute or relative foundation, etc. Those are things I find interesting, but the kind of academic community and the kind of readers I’m interested in when it comes to my book aren’t necessarily people who are specifically interested in those questions. Via imminent critique, I try to almost park those questions.
That, of course, also has its limitation, which is that if we reject the values that are put into the equation as being desirable, legitimate, or simply relevant, then we should also reject the argument. It’s not interesting to propose coherence type arguments if we reject the values from the first go. That is also to say that fundamental distinctions in how we interpret particular values might have consequences for the later, critical immanent analysis.
FL: In closing, I wanted to ask you a bit about the reception of your ideas and proposals. I realize this is a brand-new book, but it also draws on a number of important articles you have published in recent years. How have the criticisms and recommendations you articulate been received until now by scholars in other, adjacent fields, whether in political science or legal studies, and more broadly? What kind of reception would you hope for in the future? In other words, what do you see as your special contribution to the interdisciplinary study of the EU?
TT: In terms of academic reception, the book and the articles on which it’s based and which it develops have had the kind of impact that I was hoping for. A lot of the discussions in academia indeed concerned either empirical analysis of how to understand the causal mechanisms that might drive backsliding or how to understand when certain interventions may or may not be effective, or the legal analysis of when and which types of responses might be legally required or legally prescribed or proscribed, as the case might be, including a lot of interesting literature on what actually the norms themselves are, i.e. how to interpret the legal norms in question from a kind of black letter, jurisprudential perspective. There were very few people who were doing more normative political theory analyses of these sorts of developments.
As a political theorist, what I noticed – and that’s part of the reason why I started working on these sorts of things in the first place – is that often you’d have empirical or legal doctrinal analyses and then at some point near the end of an article or in the last chapter of a book, you’d have recommendations.
As part of my political theory training, I was always taught that once you move to the prescriptive, you’re making a normative claim, and a bridge needs to be built in terms of normative theory to the empirical or the doctrinal analysis. My sense was that no one was focusing on that step very seriously and that’s where I wanted to make a contribution.
Beyond the very small circle of political theorists who are interested in EU politics – whom I know well, read and are read by, and cite – I’m happy that my work is also referred to and contributes to debates in public law, in EU law, and in empirical political science. In terms of the reception of the book beyond that, this is a bit of a gamble. I’m writing a research monograph, but I also want to be read by people that are not necessarily university researchers. I don’t mean to say that my book is pitched to a broad public. It’s rather pitched to people who already have an interest in this area – and by that I mean people who are part of the ‘Brussels bubble,’ people who are analyzing EU policy on democracy and the rule of law, or indeed politicians themselves and journalists who are following these events etc.
It’s very early days as you mentioned – my book has only been out for a few weeks – but I was quite satisfied to see that there seems to such a broader interest. I have had interesting discussions and get interesting questions about the arguments I make from people who are engaged in civil society or in the EU institutional space or in the media. There’s obviously a risk to that too as it’s difficult to get the kind of in-depth attention and engagement and analysis from very busy people whose jobs don’t necessarily allow them specific time to get into specific literatures. But I’ve been greatly impressed and very humbled by people’s generosity and the time and attention they devote to the arguments I make in the book.
There’s a bunch of debates I want to move the needle on but I am especially devoted to responding to the kind of knee jerk reaction that an expulsion mechanism is impossible because it’s not in the treaty and therefore we should not even talk about it. For me, that reaction is membership fatalism in a nutshell.
It’s a fatalistic reaction not only because it means that we cannot have a conversation about the possible need to expel a member state who’s become frankly autocratic. It’s fatalistic also in that it empowers autocrats in EU member states: it empowers them to believe that they have total sovereignty over the EU membership of their state when they’re in government. That belief is deeply problematic and probably untrue.
One of the joys of our discipline is that things can be extremely unpredictable. When pressure builds up on a particular point, sometimes things happen quite quickly that used to be considered very unlikely, if not impossible. I’m not saying my critique of membership fatalism is going to be that thing, but I do hope it helps to think systematically, both normatively and empirically, about what that critique means in terms of expulsion.
Alina Young edited the audio recording.
