The discretionary powers of welfare state professionals are in tension with the requirements of the democratic Rechtsstaat. Extensive use of discretion can threaten the principles of the rule of law and relinquish democratic control over the implementation of laws and policies. These two tensions are in principle ineradicable. But does this also mean that they are impossible to come to grips with? Are there measures that may ease these tensions?We introduce an understanding of discretion that adds an epistemic dimension (discretion as a mode of reasoning) to the common structural understanding of discretion (an area of judgment and decision). Accordingly we distinguish between structural and epistemic measures of accountability.The aim of the former is to constrain discretionary spaces or the behaviour within them while the aim of the latter is to improve the quality of discretionary reasoning.The focus in this article is on epistemic measures that are internally related to the main characteristic of accountability, namely justified use of discretionary power.What characterizes many welfare-state arrangements is that they confer discretionary powers upon professionals in their roles as 'street-level bureaucrats'. 2 Professionals then act as gatekeepers, deciding who gets what, when, and how. This fact has generated its share of criticism. 3 The discretionary powers of welfare-state professionals are troublesome for two main reasons. First, there is a tension between discretion and the formal demands of the rule of law. Extensive use of discretion in the application of law can threaten the principles of predictability, legality and equal treatment. Second, there is a tension between discretion and democratic control. Discretion is the black hole of democracy -to borrow Bo Rothstein's metaphor. 4 Entrusting street-level bureaucrats with extensive discretionary powers is by definition almost equal to relinquishing democratic control over these final steps.There is, of course, a lot of sloppy discretionary work. But that is not our point and not what basically makes discretion problematic from the point of view of rule of law and democracy. The two tensions are intrinsic and cannot be removed, only ameliorated. They follow from the very nature of discretion as a judgmental and decisional activity and can appear even if we presuppose that the activity is performed in a conscientious manner. 5 Our guiding idea is that discretion has both a structural and an epistemic aspect. On the one hand it designates a space where an agent has the autonomy to judge, decide and act according to his own judgment. In this sense discretion is an 'opportunity-concept'. On the other hand it designates the kind of reasoning that results in conclusions about what to do under conditions of indeterminacy. In this sense it is an 'exercise-concept'. 6
This article explores the democratizing role of strong publics, which are institutionalized bodies of deliberation and decision-making. Strong publics are important to modern democracy as they subject decision-making to justificatory debate. This article evaluates selected aspects of the institutional nexus of the EU in order to see if they qualify as strong publics. The focus is on comitology, the European Parliament and the Charter Convention. These bodies vary in their status as strong publics, but to various degrees they all inject the logic of impartial justification and reason-giving into the EU system.
In this article, we assess three explicit strategies (based on three logics of political integration) as possible solutions to the European Union’s legitimacy problems. The first strategy amounts to a scaling down of the ambitions of the polity-makers in the European Union (EU). The second strategy emphasizes the need to deepen the collective self-understanding of Europeans. These two modes of legitimation figure strongly in the debate on aspects of the EU, but both have become problematic. The third strategy concentrates on the need to readjust and heighten the ambitions of the polity-makers so as to make the EU into a federal multicultural union founded on basic rights and democratic decision-making procedures. Taking stock of the ongoing constitution-making process, the authors ask how robust such an alternative is and how salient it is, as opposed to the other two strategies.
There is a tension between democracy, which is limited to the nation-state, and human rights, which are universal and point to the ideal republic. The Charter of Fundamental Human Rights of the European Union is an important step in the process of institutionalising a framework of a cosmopolitan order where violations of human rights can be persecuted as criminal offences according to legal procedures. The principle of popular sovereignty is on its way to be transformed into a law for the citizens of the world. But as the process of Europeansation is tainted with juridification and executive dominance the EU is in need of democratization. The citizens have obtained rights but they have not been able to give these rights to themselves. The protracted Constitutionmaking process of the EU testifies to a promising yet unaccomplished mission of democratization.
The development of post-national democracy in Europe depends on the emergence of an overarching communicative space that functions as a public sphere. But can there be a public sphere when there is no collective identity? Despite the fact that the European Union (EU) is neither a state nor a nation its development as a new kind of polity is closely connected to the formation of a common communicative space. In this article it is argued that European cooperation and problem solving create public spaces but has not (as of yet) produced a single, general European public sphere. Rather what one finds are transnational, segmented publics evolving around policy networks constituted by the common interest in certain policy fields. They are found wanting with regard to political justification intrinsic to the democratic principle that requires a general non-exclusive public sphere. The EU also harbours many legally institutionalized discourses - strong publics - that are specialized on collective will-formation close to the centre of the political system and which have been promoters of democratic reforms.
scite is a Brooklyn-based organization that helps researchers better discover and understand research articles through Smart Citations–citations that display the context of the citation and describe whether the article provides supporting or contrasting evidence. scite is used by students and researchers from around the world and is funded in part by the National Science Foundation and the National Institute on Drug Abuse of the National Institutes of Health.
hi@scite.ai
10624 S. Eastern Ave., Ste. A-614
Henderson, NV 89052, USA
Copyright © 2024 scite LLC. All rights reserved.
Made with 💙 for researchers
Part of the Research Solutions Family.