2.8 Daniel Thürer, Deliberative Demokratie und Abstimmungsdemokratie, Zur Idee der demokratischen Gerechtigkeit im europäisch-staatlichen Spannungsfeld in Daniel Thürer, Kosmopolitisches Staatsrecht, Grundidee Gerechtigkeit, Band 1, Zürich/St. Gallen 2005
[Deliberative and Voting Democracy, About the idea of democratic justice in the European tensions of state hood]
The text at hand is an essay republished in volume 1 of Kosmopolitisches Staatsrecht (Cosmopolitan Public Law), Grundidee Gerechtigkeit (Fundamental Idea: Justice), the first volume of a systematic collection of the most important texts of Daniel Thürer in 2008. Volume 2 entitled, “Völkerrecht als Fortschritt und Chance (International Public Law as Progress and Opportunity), Fundamental Idea: Justice was published in 2009. The text describes and contrasts the dimension of deliberative democracy to the dimension of voting democracy. At the centre is the idea of “democratic justice” with the aspects decision and deliberation explored in the context of the intrinsic tensions in European integration in integrating the role of “democratic justice.” The text is written from a fundamental, global and comparative perspective also seeking a role of the Swiss democratic experience in the process of European integration. The text argues for an unlocking or unleashing of the specific democratic potentials of national and supranational organisations such as the EU from the historic experiences with decision and deliberation in Europe at large.
Daniel Thürer is an emerite Professor of International Law, European Law and Comparative Constitutional Law at the University of Zurich. He is a leading analyst and commentator of the developments in the legal relationship of the EU law and Swiss law. In the summer of 2011, he was mandated by the Swiss Federal Counsel to write a legal opinion on the opportunities and limitations of a further coordination and harmonization of Swiss law with EU or in connection with the next and crucial round of negotiations with the EU.
Thürer establishes “democratic justice” as an element of constitutions of nations and as an instrument of international public law, with a crucial element of human rights being the basis of liberty, justice and peace in the world. The protection of the basic laws and human rights nowadays include the “right to democracy”, which also has become a generally accepted element of the idea of justice. The United States, France and Switzerland were democratic states only in the nineteenth century. The principle of democracy after World War II has witnessed a triumphant success, the core idea of democracy always being that members of a community participate in the shaping of the polity based on the principle of equality. Thürer’s reasoning is based on a normative and value based notion of democracy.
Thürer then describes and contrasts the interdependent dimensions of the “voting democracy” and “the deliberative democracy” – the right to elect the representative and the right to participate in the decisions on substance. In Switzerland experience collected in the use of direct-democratic instruments brought about an incomparable laboratory and field of experimentations of direct democracy amounting to an element of national identity.
He identifies the roots of democracy, such as the fight against autocrats and the idea that all citizens are equally enabled to reason political decisions, along with direct democracy as a manifestation of political freedom. The negative potentials and the shadows of the realisations of the principle are addressed, for instance, in the area of foreign policy in which democratizing competence and judgement are often suboptimal. The “element of deliberative democracy” is introduced with the three dangers in the background – “tyranny of the majority”, “enlightenment” and “totalitarian temptation” – is characterised by three elements of deliberation: capacity, responsibility and reciprocity. Thürer then links decisions and deliberation and argues that the governmental form of direct democracy is not limited to the fact of majority decisions but is codetermined by a free and fair and informed process of its transformation. Deliberation provides for the constantly necessary self-reflection, self-critique and self-renewal, a rationality and the transparency of thinking and action, the reflection of origin, the existence of opinions of others, the modesty of relativity and maybe even the correction of one’s own opinion as well as the anticipating of long term effects of a political action.
The reality of the democratic structures in the process of European integration according to Thürer is a spectacular, deep and effective case of “constitutional engineering.” This network of European institutions has yet to be openly analysed by legal science.
In the contexts of the European Union, it is a astonishing phenomenon that the principle of democracy has become a supranational form and, from a sociological perspective, has enabled the mastering of the globalization of the capitalist economy by rules of law and democracy-based controls. The text deals with the peculiarities of these supranationality influenced forms of the principle of democracy and with the striking paradox, that the European Union does not have democratically convincing structures. Despite these deflects, it is astonishing to observe that in a long term perspective, the creative potential of the supranationality of the European Union has prevailed and introduced new legal regimes, legal systems and a new type of organisation, which are by far more structured than other systems safeguarding peace.
The texts ends with an outlook on the potential of the history of creativity and productivity of a fundamental democratic deliberation in Europe as described. In that context, he advises Switzerland to be modest vis-à-vis the European Union and not only to focus on the alleged encroachments on popular rights, but to be open for inspiration in these new spaces of imagination and experience. Based upon the longstanding experience of Switzerland with the principle of democracy, Thürer ends with the question: are we not in for a new theory, integrating the manifest interplay of deliberative and voting democracy of the old constitutions of nation states, as well as with in the new supranational systems of European integration?
You can find a scan (PDF) of the original text here: