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European Union Citizenship as an Experimental Institution

Dora Kostakopoulou

Scholarship on the role of the European Court of Justice in shaping the polycentric European governance and the law and politics of 'sovereign' national authorities contains plenty of discords. Yet its role as a driving force of European integration is probably beyond dispute. Not just jurists but also political scientists have acknowledged its authoritative reasoning on matters of integration and principle, notwithstanding the existence of concerns about growing judicial power and the perennial disagreement over whether judicial processes are less legitimate than democratic ones. Certainly, if the meaning of the latter is confined to majoritarian processes, then the assumption of a quasi-legislative role by courts, that is, their ability to bypass political and legislative processes appears to be problematic. But since democratic systems are built upon both majoritarian electoral processes and reflective values and rights which place constraints on governments' powers, the judicial protection and advancement of these values and rights are normatively and empirically justified. Courts normally function as 'fora of principle' (Dworkin 1996) and are seen to be reliable agents for securing equitable settlements within and above the nation-state. Seen from the perspective of achieving rights-enhancing and fairer settlements, ensuring non-discrimination and promoting human welfare, the role of the courts, be they national constitutional courts or the ECJ, is commendable. Seen from the (narrower) perspective of the actually existing world of majoritarian democracy, which entails the promotion of 'the right' and 'the good' through the exercise of governmental power, any institution which might call into question the 'undisputed' sovereign authority of the state, is bound to be seen as having an adverse effect on democratic decision-making. To some extent, this debate exemplifies contrasting conceptions of democracy held by political and legal scholars. But the debate could also be seen to reflect a different emphasis on how far and in what ways governance should be responsive to the governed, pro-actively address their needs and promote their welfare.

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