The Uncertain Structure of Process Review in the EU: Beyond the Debate on the CJEU’s Weiss Ruling and the German Federal Constitutional Court’s PSPP Ruling

The obligation to provide reasons (e.g. in Art. 296 TFEU) may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht (“BVG”) amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank (ECB). On the other side lies the concern with judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” (Sunstein / Vermeule) and democratic experimentalism (Sabel / Kessler)—this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review.

Democratic Remedies If Ignorance Threatens Democracy

Darby correctly argues that ordinary people often have more or better knowledge about some political matters than do elites, and that deficiencies in their knowledge can be addressed by creating conditions, typically material, that would provide them with opportunities to gain relevant knowledge. This constitutes an important locus for democratic experimentalism, yielding a democratic form of epistocracy. Any residual gaps in knowledge could then be treated as rational ignorance, a willingness to delegate—though not irrevocably— decisions to those who have greater knowledge.

The Democratic Constitution: Butler and Posner on Pragmatism, Democracy, and Adjudication

In this review essay, I offer a summary of Brian E. Butler’s The Democratic Constitution: Experimentalism and Interpretation. Butler’s democratic experimentalism offers the thesis that democracy needs to be protected democratically rather than by relying on the judicial supremacy over constitutional interpretation by the Supreme Court. Butler illustrates what democratic experimentalism looks like through a close reading of key cases showing the virtues of an on-going, open-ended, empirical, fallibilist, and collaborative approach to constitutional interpretation against rival formalist and exclusionary theories. Butler relies on Richard Posner’s iconoclastic empirical approach to adjudication in advancing his thesis. However, Posner is skeptical of the Deweyan democracy Butler deploys to illustrate the democratic constitution. Further, Posner dismisses the philosophical pragmatism of Peirce and Dewey that Butler uses to ground his theory. Because of Butler’s reliance on Posner’s judicial practice and his side-stepping of Posner’s views on democracy and philosophical pragmatism, I ask how Butler’s proposal stands in relation to the ways it departs from Posner’s theory, if not his practice.

Turning GOLD into EPG: Lessons from Low-Tech Democratic Experimentalism for Electronic Rulemaking and Other Ventures in Cyberdemocracy

Empowered Participatory Governance, or EPG, is a model of governance developed by Archon Fung and Erik Olin Wright that seeks to connect a set of normative commitments for strengthening democracy with a set of institutional design prescriptions intended to meet that objective. It is derived partly from democratic theory and partly from the study of real-world attempts to institutionalize transformative strategies for democratizing social and political decision making. This paper reviews Fung and Wright's recent volume, Deepening Democracy: Institutional Innovations in Empowered Participatory Governance, and considers the relevance of the authors' and other contributors' insights for the future of a phenomenon called electronic rulemaking. Electronic rulemaking is a species of government on-line deliberation, which I call GOLD, that seeks to facilitate greater citizen involvement in the formal processes of elaborating administrative rules to implement federal law. Although the volume hardly mentions information and communications technologies at all, there readily appears an extraordinary fit between the capacities of new ICTs and the needs of EPG, in terms of both accomplishing a supportive context and actually implementing the recommended institutional designs. Whether electronic rulemaking will prove a significant way station towards EPG is uncertain, but, given the promise of the EPG experimental agenda and the need to enlarge opportunities for meaningful citizen participation in decisions that affect their lives, EPG proponents should give more active consideration to the potential role of GOLD initiatives in achieving EPG aims.

The Constituting Value of a European Democratic Experimentalism

John Dewey conceived democracy as a cooperative problem-solving practice in which actors try out provisional solutions by means of social communication. His notion of experimental democracy as a specific form of life and an ethical enterprise rather than simply a form of government implies the constitution of a polity as a practical and complex process of exchanging and sharing experiences.The aim of this paper is to test the feasibility of using a Deweyan theoretical basis for democracy to assess the potential for a European process of political integration. The historical-conceptual presuppositions of the European Union’s institutional project preclude both a narrow local perspective and an illusory globalist scheme. To redirect Europe’s democratic vocation, a process of political and institutional communication must be developed that transcends the existing national paradigm.

Non-Finality and Dialogue in Constitutional Interpretation

By looking both at the European and contemporary US constitutional theory debates, this chapter proposes an analytic taxonomy of contemporary non-court centric approaches to constitutional interpretation: those that have concluded that the most promising response to persistent concerns about a democratic deficit is to shift the focus from courts as a forum of principle to the dialogue between courts and other actors, ranging from (other) courts to legislatures, administrative agencies, private actors, civil society stakeholders, and the wider public, in the jurisgenerative process. The goal is, by following the emergent literature on ‘weak’, proceduralist, and democratic-experimentalist forms of judicial review, to argue the virtues of the latter. Democratic experimentalism denotes a modality of judicial review that allows judges to enforce avowedly open-ended, fundamental, constitutional commitments in a way that institutionalizes—rather than excludes—continuing, social, and democratic determination and the progressive clarification of what constitutional commitments can and should come to mean in practice. Judicial review may deepen democracy rather than limit it by providing a focus and reason for public deliberation. The hope is to provide, by setting out contrasting positions, a foil for discussion and to show that the desirability of judicial review is not merely complacent assumption in contemporary constitutional and political thought, but can be supported on democratic grounds as deliberation-enhancing.

Democratic Experimentalism and the Public Sphere

This chapter argues that democratic-experimentalist forms of judicial review should not be confined to socioeconomic rights but can also be invoked with negative liberties and dignitarian personal rights. An apparent dilemma is this: on the one hand, modern, pluralist democracies are increasingly, and often irreconcilably, divided when it comes to fundamental choices which affect and express the self-understanding of a polity as a whole in matters such as, say, the right to religious freedom, free speech, the rights of transsexuals, and so forth. These matters have even become the subject of entrenched culture wars. And yet, on the other hand, there is an ever-accelerating reliance on courts and the judiciary for addressing those fundamental choices. The judiciary’s influence extends beyond settling disputes and seeps into all aspects of society, codifying the values of our times. But doesn’t this overstretch the resources of consensus-based legality? The concern is that judges are drawn into the crucible of pluralistic politics. By considering the jurisprudence of both the ECtHR and the CJEU, this chapter argues that even here courts can play a benign proceduralizing role, giving voice to the hitherto marginalized. The chapter addresses selected topical issues: the important example of freedom of conscience, which in Europe emerged after many centuries of religious persecution; the clash between free speech and personality rights; and personality rights in the context of (trans-) gender rights and same-sex marriage.