Electronic copy available at: http://ssrn.com/abstract=1966395

The Cap on the Gap: Reflexive Governance vs. Democratic Deficit

Creating Theoretical Foundations for a Possible Common Fundamental Rights

Policy in the EU

Sulyok, Márton1

Abstract

As a forerunner to current efforts in governance research, the project ‘Reflexive

Governance in the Public Interest’ (hereinafter: REFGOV) was initiated within the 6th

European Framework Program.2 This article was conceived, in part, having studied the

conclusions drawn by this project and aims to highlight important challenge facing

fundamental rights protection policies in the EU member states that is relevant to newly

emerging reflexive governance mechanisms applied in present solutions of conflict-

resolution and administrative proceedings. In light of a possible common fundamental

rights policy in the EU as a result of reflexive governance, the article will describe (i) the

transformation of control societies into surveillance societies, (ii) the paradigm that

asserts that distrust in government in surveillance societies is the force that formulates

new methods of governance, and (iii) the importance, aims and prerequisites of reflexive

governance in the ensuing changes.

Through the analysis and presentation of the foundations of reflexive governance, the

article will (i) touch upon electronic governance and electronic democracy as the new

way of existing in an “Information Society for all”3 and (ii) draw up a theoretical basis

centered upon the assertion that the EU and member state fundamental right protection

policies are effective means to cover the ever widening gap between the government

and those governed that is a result of democratic deficit.

As a conclusion I theorize that properly safeguarded and regulated core fundamental

rights like privacy, data protection and freedom of information can serve as an engine to

boost political participation in political cultures struck by the “feeling” of democratic

deficit.

1 Graduate of Law PhD student of the Department of Constitutional Law of the Faculty of Law of the University

of Szeged. The article was conceived when working as a visiting researcher at the Academie de Louvain,

Facultés Universitaires Notre Dame de la Paix, Centre de Recherche Informatique et Droit. Author wishes to

extend his gratitude to Prof. Yves Poullet and his colleagues for the opportunity and the inspiring thoughts. 2 The full outline of the project is available at: http://refgov.cpdr.ucl.ac.be For a list of all relevant publications in

this subject visit: http://refgov.cpdr.ucl.ac.be/?go=publications 3 Motto for the eEurope 2005 Action Plan entitled “An Information Society for all”.

Electronic copy available at: http://ssrn.com/abstract=1966395

“Always connect.” (David Howes: E-Lawmaking in the Digital Age)

Paradigm-shift in the Theory of Governance

The contemporary concept of governance4 encompasses reformed structures and

mechanisms of surveillance and control for the sake of effective conflict resolution and

management of social, political and economic matters in the course of a state’s

administration. Hence the recent denomination ‘surveillance society’, which refers to

the application of ICTs in the extensive control over Citizens, often infringing the balance

between state secrecy and freedom of information, sometimes even penetrating their

core privacy.

Control and Network Societies: Command or Cooperate?

The application of ICTs caused a paradigm-shift and changed the former content and

context of the ‘control society’5 and the adjacent notion of government both in

administrative and in constitutional terms.

Nowadays multi-scalar (multi-level) governance systems are created by international

cooperation and global decision-making building from the local, municipal level up to a

global scale thus creating new forms of control (assisted by cooperation) in the form

of international fora promoting interconnection. This conflict-resolution scheme has the

ability to efficiently address newly emerging problems and expectations brought about

by globalization and the rise of ‘network societies’, such as the transformed content

and context of the public interest notion.

When engaging in discourse about governance present in conflict resolution (problem-

solving) frameworks of a state or a community of states as the EU; a short historical

context should be provided. Let us now turn to the examination of the ‘command-and-

control’ regulation model, as (chronologically) it was the first to appear.

Originally, due to obvious historical reasons that supported the superiority and

separation of the State (the ‘sovereign’) from the Citizens (the ‘subordinates’) this model

and its variations determined administrative control until about the beginning of the

20th century in general. Driven supposedly by the incentive to avoid conflicts instead of

resolving them and to strengthen the overall economic influence of the State, public

administration authoritatively positions itself over society and simultaneously it

presumes

(i) capacity and

(ii) competency to successfully identify core societal needs, in other words the

‘public interest’.

Lobel argues6 that this path of command-and-control was beneficial at the time of

historical moments like the Great Depression, in and around 1929, when this regulatory

4 http://ec.europa.eu/governance/index_en.htm.

5 Yves POULLET -- Antoinette ROUVROY: The right to informational self-determination and the value of self-development. Reassessing the importance of privacy for democracy (in: S. GUTWIRTH -- Y. POULLET -- P. DE

HERT -- C. DE TERWANGNE -- S. NOUWT (eds.): Reinventing Data Protection? (Springer, 2009, Forthcoming)

model was introduced for the first time in order to help the United States out of the

economic descent. NB This model was introduced to avoid further damage and not to

resolve emerging conflicts. The ‘slippery slope’ of the Depression’s crisis at the time

called for such solution. The Keynesian New Deal introduced by Franklin Delano

Roosevelt envisaged a way out of the economic freefall by creating a top-down,

regulatory state, i.e. a government centralizing control of expert organs responsible for

social, economic and political matters.

Mayntz argues in connection with regulatory models typically characteristic to

interventionist states (such as the US was in the 1930s), that the present

terminological change from “government” to “governance” is also apparent in a

theoretical paradigm-shift. She posited that the term governance “is most often used to

indicate a mode of governing [that is] distinct from the hierarchical control model”.7 I

would like to point out certain points of view in the following as to how distinct or

different it really is.

Lobel refers to the appearance of the new governance paradigm as the ’Renew Deal’,

meaning by that the appearance of social outreach programs and non-binding

guidelines instead of regulation and control. Social outreach is quintessential due to

the principles set forth by the ‘toolbox’ of good governance, where we can find

susceptibility and adaptability to the needs of the social mainstream as prerequisites to

modern democracies. The importance of guidelines is later elaborated.

By the end of the 20th century, it became fairly clear to decision-makers that application

of strict, top-down regulation diminishes and distorts the set of values that should be

promoted in democratic societies. Public interest cannot be sufficiently identified,

even if one ‘knows the ropes’ of the administrative model specific to a state. Generally,

the ability to create rules that consider, respect and serve the public interest is

presumed by the state representing administrative authority on grounds of its

superiority in a vertical perspective. These models, however, are not supported by the

horizontal dimension, i.e. neither by participation, civic engagement nor by the

contributions of the ‘advisor effect’ of such activities.

The regulatory state of the New Deal and the validity and legitimacy of authoritative,

top-down regulatory measures was already questioned in 1952, in a landmark case

before the United States Supreme Court, scrutinizing the ‘commander-in-chief’ powers

of the head of the Executive. The conclusion of Youngstown Sheet & Tube Co. v. Sawyer8

declared that Executive Order 10340 issued to direct the Secretary of Commerce to seize

and operate most of the steel mills to avert a nationwide strike of steel workers (in

short, a federal interest) on grounds that it was believed to jeopardize national defense

(compelling federal interest) cannot be legitimized nor sustained by aforementioned

federal interest. The Court held: for the Order was not based on the powers vested in the

6 Orly LOBEL: The Renew Deal: The Fall of Regulation and the Rise of Governance in the Contemporary Legal Thought (89 Minn. L. Rev. 2004, p. 342) 7 cited in Jacques LENOBLE -- Marc MAESSCHALCK: REFGOV Synthesis Report 2 (Center for Philosphy of Law,

UCLouvain, 2006) (R. MAYNTZ: Common Good and Governance, in A. HERITIER (ed.): Common Goods: Reinventing European and International Governance (New York - London: Rowman&Littlefield Publishers,

2002) p.21 8 343 U.S. 579

President of The United States by the Constitution, even if such an exercise of

authoritative power was “based generally upon all powers vested in the President by the

Constitution and laws of the United States and as President of the United States and

Commander in Chief of the Armed Forces”. Authoritative (top-down imposed) regulation

was thus brought into question early after the creation of the archetype of command-

and-control regulation.

Due to ‘short leash rules’ in command-and-control, civic contribution to setting out or

formulating the rules in the redistribution and allocation of resources (previously

christened as the ‘advisor effect’) is not taken into account. Thus, the people’s chance to

actively participate in democratic processes diminishes gradually, and as a result, a lack

of confidence (or distrust) in government appears, commonly referred to as

‘democratic deficit’.

If we observe this problem through the looking glass and provide historical foundation

for its analysis, it becomes clear-cut that the former regulatory model is indeed contrary

to the basic principles set out in the archetype of democratic paramount laws: the

Constitution of the United States. Its Preamble contains: ‘We the People of the United

States […] to promote the General Welfare […] do ordain and establish this Constitution

[…].’

It is self-explanatory that to best serve the public interest of Citizens and the

redistribution of resources at the disposal of the State for the benefit of the public the

State should welcome any contribution the public or the public opinion shall make in

terms of their own interests and the Citizens shall have an opportunity to offer a

determinative, ‘advisor effect’ on the content of the rules governing their coexistence

with the State. However, the appearance of globalization (besides changing the focus of

formerly national-level conflicts) embodies the need to reidentify and reevaluate

preexistent, we may say, ‘conventional’ contexts and contents of ‘law’ and ‘governance’

and calls for proposals in terms of new structural models in regulation.9

In this new era, Citizens not only coexist with fellow citizens and national

administrations but are living in an environment that is borderless, interactive, multi-

centric and multi-level. The expanded frameworks of coexistence need extensive

regulation not necessarily on a statutory level. Guidelines formulated with large-scale

cooperation between different layers of society could have the similar effect as statutory

regulation.10

However, globalization only changes the focus on national and lower level conflicts due

to an upward-outward responsibility transfer in terms of conflict resolution that is

characteristic of international organizations dealing with global problems. The ability to

create such new frameworks presupposes the identification of the modern aspects of

public interest, focusing on the newly represented societal need for better public

9 On new forms of governance see: http://www.eu-governance.org/

10 The EU conducted and fostered several research programs on this subject, besides REFGOV, among others in

the 6th Framework Program Priority 7, we can mention the Integrated Projects CONNEX (Connecting

Excellence on European Governance) and NEWGOV (New Modes Of Governance).

services identified by Clift11 in the transformed framework of the knowledge based

Information Society.

The relevant determinations of REFGOV with regard to the identification of the modern

aspects of public interest pertain to the issue of creating Public Interest Assessment

Protocols (hereinafter: PIAPs). According to REFGOV, establishing PIAPs is the first step

in the elementary phase of the identification of the modern sense of public interest,

leading to the achievement and provision of better public services and consciously

formulated guidelines of governance.

In modern governance, PIAPs should be considered as equivalent to SWOT-

assessments in the command-and-control lawmaking process. As SWOT is an analysis

preceding legislation and trying to predict (i) Strengths, (ii) Weaknesses, (iii)

Opportunities, and (iv) Threats in terms of forthcoming laws, PIAPs are as well

preliminary endeavors to examine elementary prerequisites in terms of successful,

legitimized and respected future legislation. Their objective is to uncover and define

basic societal needs, on which public interest is based, and to provide suggestions in

terms of the best possible service of the public interest. The function of SWOT and PIAP

is the same, but the latter must be applied in a much wider sphere of application.

Obviously, thus, they must precede SWOT assessments. PIAPs are quintessential in

determining the goals and main objectives of a legally conscious, reflexive legislation

that is based on feedback from the citizens. PIAPs create grounds for the evaluation and

consideration of civic feedback and therefore provide reflexivity in the regulation.

Regulatory flaws and incoherent legislation can be easily precluded by application and

adherence to PIAPs. Howes posits that the use of ICTs in preparatory phases of

legislation amplifies that activity, and he underlines the beneficial effects of legal

interactivism provided for by multi-centric authority and enhanced participation by

cooperation as opposed to the legal positivism of top-down authority. 12 Lobel

emphasizes the importance of conscious planning as well. ’The opportunity for private

parties to manage their environment through collaborative and dynamic planning’ is key

to reflexive governance.13 She distinguishes two main factors: (i) collaboration, and (ii)

dynamism, the importance of which must be particularly accented in the context of

reflexive governance.

Reflexive Governance and the Modern-Sense Social Contract

Reflexive governance is built on

(i) collaboration between formerly isolated sectors of society not to cross paths in

the old top-down, command-and-control model and

(ii) increased dynamism that is realized through the efficiency brought about by

collaboration.

11 Better public services: a reference to the improved needs of democratic citizenship (the ‘e-citizenship’) in the

Information Society, a main factor influencing the framework of electronic democracy (Steven CLIFT: E-democracy, E-Governance, and Public Net-work; the article is available at:

www.publicus.net/articles/edempublicnetwork.html) 12

In connection with ICTs being able to amplify legislation and the effects of legal interactivism provided for by

multi-centric authority and enhanced participation by cooperation as opposed to the legal positivism of top-down

authority, see: David HOWES: e-Legislation: Law-Making in the Digital Age (2001, 47 McGill. L. J. 39) 13

See: LOBEL: op. cit. p. 343.

This presupposes the formation of a collective social (or socio-economic) conscience

that is premeditatedly willing to take steps in the furtherance of a new legal regime to

control the environment in which it wishes to exist.

That said, reflecting to Lobel’s argument that the need for a stable legal regulatory model

is still existing; I have to underline that the role of sensu strictu regulation (in the former

sense) needs to change and transform into a structure that has more and more

supervisory features and provides guidelines which build on the common

understanding of the common good. The common legal conscience presupposes the

elevated level of respect towards regulation (willingness to follow the rules) in this

governance model: the cooperate-and-control model.

If both ends of the ‘control tug of war’ are in possession of the information that is

necessary to exercise their rights and provide feedback to one another, then we can talk

about effective cooperation. Hence, broad freedom of information as well as the

introduction of measures in order to renew the trust in governing institutions shall be

established in such frameworks.

Emanating from a modern sense Enlightenment -- as a result of which the private

sector realized that it deserves a role in the assessment, management and service of

public interests -- the strict scrutiny of the original top-down model of the

paternalistic command-and-control state continued in the 1970s. Due to the fresh

societal ability and willingness to identify societal interests, Citizens began to doubt the

authority of the top-down regulatory state, also in terms of its capacity to provide such

services, which could not have been, according to them, effectively identified by the

State. Hierarchy, centralization and ‘red tape’, the lack of transparency, accountability

and long duration of claims-management of the administrative system, were identified

as main problems.

This was the moment when new cooperate-and-control models came to life. ‘Many

services that were formerly directly delivered by public entities are now being organized

through complex networks of public and private actors characterized by market, >>quasi

market<<, and regulatory relationships between different entities.’14 The significance of

this kind of inter-societal cooperation first appears in the work of Niklas Luhmann, who

established the theoretical framework of the interdependence of the different subsets,

subnetworks of the society as a whole. Amongst the major subsystems that were

identified we find politics and media as well. This concept of interdependence seems to

evolve into a relation of interconnectivity in the age of the Internet and ICT. This brand

new technological framework called Information Society establishes easier ways for

Citizens to get involved in the management and evaluation -- be it a priori or a posteriori

-- of the affairs of the state, as the basic (rule of law) principle of democracy assures

their right to do so.

*

14 REFGOV, Part B, p.24

In the next chapters, through examining the concept of the general, public interest and

deriving from it models of cooperation, I draw conclusions that would facilitate

necessary fundamental rights protection issues concerning the balance of freedom of

information and secrecy on the European level.

Mutual Reinforcement: The ‘Right to Participate’ and the Role of NGOs

Before getting to the point of the role of NGOs in terms of the newly found right to

participate in the information society, we have to define the ‘service of general

interest’ in the plain sense of the expression. I will adhere to the definition that it is

synonymous to a service provided for the public, by a public entity or by a private entity

in some way under the control (or surveillance) of a public body, i.e. public service.

Private stakes in the public sector are apparent: actors of the private sector infiltrated

the public sphere of a society operated on the basis of market economy long ago,

nourishing their efforts from the recent acknowledgment that Public Interest Pressure

Groups (PIPGs) possess a larger degree of an ability to create ‘social awareness’ and to

develop new content and context for law and governance in accordance with identified

societal needs. PIPGs are more competent when it comes to identify societal issues in

need of political or legal support, and as such perfect tools in the preparation of PIAPs.

The Lobbies of the White House where the ’lobbyists’ swarmed the representatives of

the House with their policy proposals was the cradle of the fight for the common good

by civic engagement. On 28 September 1987, Senate Majority Leader Sen. Robert C. Byrd

held a speech entitled “Lobbyists” on the origins of lobby activity: “in 1869, a newspaper

correspondent published this vivid description of a monster in the Capitol building:

‘Winding in and out through the long, devious basement passage, crawling through the

corridors, trailing its slimy length from gallery to committee room, […] this huge, scaly

serpent of the lobby." What was this awful creature?[…] [T]he embodiment of lobbyists,

who were […] corrupting the Congress. Even today, the media tend to portray legislative

lobbyists as some form of monster. And yet, we realize that lobbyists play an important and

essential role in the legislative process. […]’”15

However, some scholars also envisage and emphasize the increasing importance of

direct democracy institutions in the Information Society that would diminish the

importance of NGOs and alike “awful creatures” of lobby. Their conclusion with regard

to electronic democracy: Due to the evolution of ICT, “intermediary organizations, such

as political parties and pressure groups, will lose their functions and representative

institutions may disappear. Citizens can become self-governing and will no longer need to

transfer decision making power to political representatives. A direct, plebiscitarian

democracy becomes feasible, when the >>demos<< […] can come together virtually.’16 Self-

governance is an important element in this vision, which must be preexisting, if well-

founded direct societal pressure (by means provided for direct democracy) would

replace the functions of representative bodies. This kind of ‘auto-regulation’ should be:

(i) Reflexive (meaning: considering information from all sources, all branches of the

distribution and separation of powers: Legislative, Judiciary and Executive,

Media, e-Citizenship in a way that it should not only focus on the ‘will of the

15 www.senate.gov/legislative/common/briefing/Byrd_History_Lobbying.htm

16 W.B.H.J. van DE HONK, I.Th.M. SNELLEN, P.W. TOPS (eds.): Orwell in Athens – A Perspective on

Informatization and Democracy (Amsterdam: IOS Press 1995), See: p. 16.

people’, as the original meaning of the Hellenic words ‘demos’ -- ‘people’ and

‘kratos’ -- ‘will’ or ‘power’ signify); and

(ii) Contractual (meaning: the will and the rights of Citizens shall be balanced with

the will and the right of the State, as part of a social contract created by the

reidentification of its core.)

In connection with the interrelation of NGOs and the promotion of effective freedom of

information legislation and as part of another possible angle approaching the

problematic at hand, it is noteworthy to emphasize that the traditional top-down,

command-and-control state has already transformed into a bottom-up, cooperate-and-

control governing system for the benefit of the public.

In a state that is prone to secrecy in the pursuit of its own safety (national interests),

NGOs as enhanced models of civil and political cooperation can lead with example

and set the pace of transition into a governance system that builds from the bottom up

in resolving policy conflicts such as the collision of public and state interests regarding

fundamental issues of freedom of information regulation. The framework of an NGO

is to the greatest extent fit for such a purpose based on its interconnectedness with a

large scale of societal interest groups and the policy-making contributors of a nation’s

leadership as well.17

As concluded before: the increased availability of information from every possible

source as a basis for meaningful societal debates is a quintessential prerequisite for

reflexive methods of governance. NGOs or INGOs building from cooperation within

citizens obviously contribute to a more systematic fight for public interest in various

forms, e.g. promotion of access to justice or even ICT-based lobby.18

As part of a practical approach, a set of more tangible factors shall now be set forth

with regard to the EU:

(i) the watchdog role of NGOs and other pressure groups shall be reinforced and

supported both on the national and on the international level: either by

inventing new frameworks for financing or rethink the existing models;

(ii) efforts shall be made to supra- and transnationalize initiatives of such

organizations as part of the joint efforts of creating the reflexivity and

cooperation mentioned above;

(iii) basic ideas of freedom of information laws shall be revisited in forms of

wide-spread public debate.

17 SULYOK, Márton -- PAP, András: The Role of NGOs in the Access to Public Information: Extraordinary

Renditions and the Absence of Transparency in: Canada and the EU: Mapping Transatlantic Security Relations, Mark B. SALTER (ed.) Forthcoming, Routledge, May 2010 18

As an incentive for ICT-based lobbying, the role of electronic political campaigning is also mentioned is

several work about e-democracy as well. In terms of the United States’ status on e-campaigning, see e.g. in:

Viviane SERFATY (ed.): L’Internet et politique des États-Unis á l’Europe (Strasbourg: Presses Universitaires de

Strasbourg 2002), pp. 15-129, or in terms of the European prospects and results ibid. pp. 155-250. The concept

of electronic democracy and its dilemmas are analyzed, among others, in the following literature: Viviane

SERFATY (ed.) op. cit. pp. 253-290, and W.B.H.J. van DE HONK, I.Th.M. SNELLEN, P.W. TOPS (eds.): op. cit.

This way the traditional top-down, command-and-control state will transform into a

more modern bottom-up, cooperate-and-control governance system for the benefit of

the public.

The traditional setting of the distribution and separation of powers must be

transformed in the Information Society. Since the beginning of the 1960s, legal academia

is of the opinion that mass media already assumed the role of a fourth branch, therefore

the former trinity shall be ‘completed’ with a fifth branch comprising citizens

empowered by the use of ICT to control the functions of the above four structural

subsystems of the state by possessing power to influence the flow of information.

E-Citizens, empowered equally by a much larger share of the digital divide, shall also

have the right to further involve themselves in democratic processes by means of direct

democracy. In addition to this, it shall be clarified that if inclusion or participation is

supported by reuse or dissemination of public sector information19 then the citizens

shall respect the rights of control on the side of the State in its sphere of authority, that

is, the three traditional branches of power.

Diverting, by splitting, the attention of political role-players through immense increase

of lobby activity (due to the wide-spread application of ICTs) may appear as a malicious

variable in the policymaking equation.

Enjoying the means provided for by the freedom of assembly and freedom of

information, lot of interest groups appear recently, sometimes even solely existing on

the Internet, expressing themselves via manifestos and proclamations, applying

information technology in their ‘crusades’ to convince the political leadership to support

their demands. This has a trivial ripple effect. Since the legal checks and balances are

yet to be created in terms of the Internet and the freedom of speech and opinion, the

propaganda of certain interest groups could lead to the communication of incendiary

thoughts, as the currently arising issues of hate-speech indicate.

Jensen points out,20 that “the new media can also invent new ways to deceive and mislead

through abuse and manipulation, promoting anti-cosmopolitan values and interests like

nationalism, xenophobia and exclusion [and that ICTs] perpetuate antidemocratic power

relations by eroding social contexts for developing and expressing citizenship.” New social

contexts should therefore be created around the notion of citizenship in e-democracies,

rather than trying to preserve existing ones. Globalization affects the conceptual

framework of all ‘conventional’ legal systems and several notions shall be adapted to the

changes of circumstances in order to be able to maintain order.

Kleve and De Mulder conclude, in connection with network societies, that “participation

is survival”.21 Howes determines the rationale of information societies briefly: “always

connect.”22

19 e.g. Directive 98/2003/EC on the reuse of public sector information.

20 Jody JENSEN: Netizens of the Blogosphere: E-democracy or E-ristocracy? in: Central European Political

Science Review, 31/2008, p.87 21

Pieter KLEVE -- Richard DE MULDER: Privacy protection and the right to information: In search of a new balance in: Computer Law & Security Report 24 (2008), pp. 223-232, quote: p. 228. 22

David HOWES: e-Lawmaking in the Digital Age (2001, 47 McGill L. J. 39) p.10

The involvement of actors, other than state and political, in the process of policymaking

and conflict resolution is quintessential in democratically legitimized information

societies. Kleve and De Mulder touch upon the ‘right to participate’ which “seems to

become the new constitutional right in the information society.”23

New governance models through these enhanced structures of cooperation are useful by

stimulating dynamic change as a part of which economic efficiency and democratic

legitimacy are mutually reinforcing each other. Mutual reinforcement is one of the

most characteristic features of such systems based on the interconnectedness of public

and private actors. We can affirmatively see the ’turning point’ examining the past 10

years’ practice: the actors of the private sector -- in the name of economic efficiency

(minimizing, rationalizing their own costs) -- exploited the opportunities lying in the

recent technology boom of ICTs.

Thus, having made their way to levels of policymaking never before achieved, by

exploiting the toolbox of the e-lobby, they managed to find new pressure points on

other policymaking parties to promote their respective agendas and in the meantime

reinforcing civic engagement through the exercise of fundamental liberties. This

newborn ability to exercise pressure obviously reinforces the democratic legitimacy of

the system by reestablishing the trust of the governed.

Truth of Contradiction in Terms?: Distrust in Government as the Force

that Creates Governance?

In connection with the distrust in government and its re-establishment by new,

democratically legitimized models of governance, the following question shall be

answered: what are the main constructive factors that governing systems build upon?

If we follow the line of the historical context outlined in the introduction and the logic

therein; then from a historical standpoint, it seems to be theoretically verified that a

system of freedoms could be founded upon distrust in government. Cooperation

formulating as an antagonist of a ‘traditional’ form of government is apparent in

frameworks of conflict-resolution in the EU taking national interests and own present

agendas into consideration in the course of applying unconventional and transformed

governance mechanisms.

The analogy of the United States federal system is evidencing above assertions: the

foreign colonists had a clear intent to limit the powers of the government at the time

being, as it was elaborated in the Declaration of Independence and later in the

Constitution under ‘enumerated powers’.24 They wanted to emphasize individual

freedoms based on their own contemporaneous agendas; and the system they envisaged

is still in motion and functions.

23 KLEVE -- DE MULDER: op. cit. supra.

24 See: the rationale of the Youngstown case presented above on p.3

Clark25 identifies four main constructive factors as part of the original vision of the

Founders:

(i) Liberty,

(ii) Distrust in Government,

(iii) Tolerance and

(iv) Optimism.

In an EU on its way towards Unity out of Diversity, some might even say towards a

federalistic system, these four factors are considerable in planning future frameworks

for European cooperation based on two additional ones:

(v) Freedom of Information and

(vi) Reflexivity.

The member states significantly differ in linguistic, cultural, legal and social etc. aspects,

which phenomenon obviously translates into the need of a common denominator

which shall be formed while cleverly exhausting the benefits of being different from one

another. The thought of the common goal of the acceptance of Diversity within the EU

shall drive such initiatives in the formulation of national and community policies

that are aware of and willing to build on the advantages that could result from Diversity.

Only then could the Unity stemming from Diversity be a blessing of Liberties and

Tolerance towards each other. Only then can the path to follow be set forth ‘in order to

form a more perfect Union’26 and to really secure the blessings of fundamental rights and

maintain the balance necessary in an information society.

Lobel underlines that the achievement of such new policy goals is the result of the

cooperation of government, society and industry who also share not just the burden

but the responsibility of the achievement of such objectives as well,27 and she also points

out an important ‘temporal dimension’ in this new governance model.28

As he argues: ICTs facilitate constant innovation in the new era of governance, which de

facto triggers changes leading to greater adaptability to the shifts in society (as required

by the principles of good governance), politics and economy as well. However, this

dimension is not necessarily temporal but more importantly structural, based on the

two following reasons:

(i) the speed of the technological innovation is always a constant: state-of-the-art; us

being unable to exert any influence on the current stance of technology, it

seems unstoppable; and

(ii) with the introduction of newer and newer technologies the methods of the

problem-solving structure evolve in the first place (e.g. consider the

appearance of online ADR).

25 David S. CLARK - Tugrul ANSAY (eds.): Introduction to the Law of the United States (2nd

ed. The Hague:

Kluwer, 2002) 26

Excerpt from the Preamble of the Constitution of the United States of America. 27

See: LOBEL: op cit, p. 344 28

See: LOBEL: op cit, p. 348

Hand in Hand?: Cooperation and Governance

Mayntz refers to new governance models as public/private policy networks. Considering

the application of an economic approach and an analysis of certain econo-legal factors

of an apparent efficiency enhancement stimulus behind the PPP-like structures29 that

formulate as part of new governance methods, it needs to be clarified that the exclusion

of the private sector in dealing with national, societal questions could result in the

sudden development of market inefficiencies, besides the obvious democratic deficit.

However, at the same time, when the private sector begins to integrate in the

identification and management of public interest, conflicts of interest appear in this

private-public cooperative interventionist model resulting from the above described

market inefficiencies. The need for profit maximization appears on both sides of the

cooperation (considering both the state and private agents as rational actors), which is

likely to distort the intent of the intervening parties to their benefit, respectively. The

continuing contribution of private agents to public interest management has a malicious

side-effect on the private stakeholders themselves distorting the service provision itself.

This is an obvious market-barrier generated by the fact that private role-players have

their own financial and economic interests, which hinder their whole-hearted

contribution to the impartial representation and service of public interest. As pointed

out in REFGOV, such a scenario is avoidable by creating strong incentives for private

stakeholders to be willing to pursue their activity. (Such strong stimulus can be the

promise of all-encompassing and reflexive fundamental rights provision and protection.)

Strong incentives are parts of the market as a conceptual whole, and the market is

determined in its foundations by some sort of framework that relates to its operation,

fuels it. This way the existence of reflexive governance mechanisms (a kind of ‘market

soft law’) in terms of the market itself seems well-founded. As a result of the unfortunate

constellation of facts the private sector will not be willing to share the collective risk of

the general interest services in case it constitutes a detriment or hindrance to its further

functions. However, on the other hand, it needs to be clarified that the allocation of

resources is obviously more efficiently feasible in decentralized forms, i.e. with the

help of integrating private sector liaisons on the local levels. NB Strong incentives can

only be created by consciously acknowledging the needs that are presented, by

analyzing feedback.

As for this matter of decentralization, Lobel draws up a model of responsibility-

transfer in terms of regulatory levels. She argues that the transfer of responsibility is

two-fold: vertical and horizontal, simultaneously. This of course means that in the

vertical dimension, downwards it concentrates more and more to the local level (see my

point of view in terms of subsidiarity hereinafter) and the in horizontal dimensions

there is an outwardness present: inclusion of other, formerly excluded sectors to

29 The relation of the PPP-structure and the e-government services is comprehensively elaborated in Steven DE

KEYSER: Pubic-Private Partnership (PPP) and E-Government, In: Jos DUMORTIER, Frank ROBBEN, Marc

TAEYMANS (eds.): A Decade of Research @ the Crossroads of Law and ICT (Brussels: Larcier 2001), pp. 71-85.

contribute to the governing processes and the setting of basic principles.30 What is the

reason behind this solution? They are closer -- in territorial sense -- to the source of

conflicts and the zones of interest (obviously to the citizens themselves) than the State

organs are or can be.

Peixoto argues that “the local sphere is considered by the literature as a privileged arena

for e-democracy innovations, and is simultaneously where the majority of experiences take

place.”31 However, global governance mechanisms also exist. In a global structure the

transfer of responsibility is much more likely to go upward-outward in the sense that

global problem-solving (e.g. credit crunch, climate change, violation of human rights in

certain states, food crisis) gets a bigger emphasis in non-state and supra- or

transnational international organizations which promote, among others, the principles

of good governance and try to prevent further escalation of existing local, territorial or

national conflicts.

The principle of subsidiarity and the experience drawn from its application

throughout international organizations constitutes an adequate level of proof to uphold

this previous point of view. It is beyond the reasonable doubt: the application of PPP

‘success stories’ creates tension with preexisting centralized and uniform (command-

and-control) regulatory models in terms of public services, due to the integration of local

agents.32 In order to avoid such a tension we must keep in mind the importance of

contractual governance.

Mutual? Assent?: Contractual Elements in Reflexive Governance

The contract law approach applied on the relation of State and Citizens gave rise to the

theory of contractual governance, the first appearance of which dates back to the

beginning of the Enlightenment movement at the turning point of 17th and the 18th

century. Contractual governance, in short, encompasses the inclusion of negotiating and

bargain techniques manifesting in the connection between the society and public

administration, concerning the purpose of ‘the Agreement’ (or rather ‘social contract’?)

which in this case is: public interest.

Applying techniques of negotiation means to learn to react, to reflect to the other

parties’ suggestions and points of view.33 The name ‘contractarian law’ is also often used

in relevant literature, which refers to my question briefly mentioned before: Does the

concept of contractual governance really imply that there is still a tangible underlying

social contract in the Information Society which determines the rights and covenants of

role players?

Examination of this question should extend to cases where claims of violation of

Citizens’ fundamental rights (would) arise, incriminating the State in the infringement

30 See: LOBEL: op. cit. p. 344.

31 Tiago PEIXOTO: e-Participatory Budgeting: e-Democracy from theory to success? (in: e-Working Papers

2008, http://ssrn.com/abstract=1273554, visited on 18. 03. 2009.) p. 6 32

The importance of the local level, the ‘political locus’ is also mentioned ibid. 33

Jan KOOIMAN calls this method of governing ’communicative governance’ in his 1993 book ’Modern Governance: New Government – Society Interaction (Jan KOOIMAN, ed.)

of e.g. freedom of information, or privacy. In laymen’s terms, if a contract is concluded,

i.e. mutual assent between the parties has manifested in consideration of the purpose of

the agreement, then the parties shall be aware of their own obligations and covenants

during the force and effect of the contract. The Citizens shall abide by the laws of the

State, but the Laws of the State should promote fundamental rights in order to enable

the Citizens to fully contribute to democracy. This is the analogy of the social contract

created by Jean-Jacques Rousseau.

Going further along the line, if Citizens exercise their fundamental rights in order to

perform what they deem as a (direct) contribution to democracy and political pluralism

within the boundaries of the social contract, they are expected to be aware of the

consequences of such actions in addition to the obligation of respect in terms of the

State’s duties in maintaining and promoting democracy and safeguarding its own

authority and sovereignty. In this scenario, Citizens would lose their right to assert

claims in terms of the violation of a constitutional, fundamental right because of the

balance created by the social contract.

Let me hereby infer to my point of view previously argued: the e-citizenship is the

means to equilibrate the inner structure of the Information Society and the balance is

‘surveilled’ by the guidelines of the social contract. Above formula in itself reveals the

modern-sense social contract, which has a fundamental role in the information society

and in its contractual governance. Krawiec refers to reflexive governance as

’contractarian’ or ’negotiated’, based on the existence of this modern-sense social

contract underlying governance. 34

The European concept of ’social contracting’ has the same natural law roots as the

American; bear in mind the text of the United States Constitution (Article I, Section 8,

Clause 1) for that matter, where we can expressly find these ‘Enumerated Rights’ under

the title ’Powers of Congress -- Taxation’. This signifies the existence of an assent

manifested between ‘governed’ and ‘government’ as well. In terms of certain rights

restrictions are made and considered respected due to constitutional regulation. These

are:

(i) ’Rights retained by people’ in the 9th Amendment, and

(ii) the 10th Amendment contains the ’Powers reserved to states or people’.

The contractual approach is clearly embedded in the concept of the U.S. Constitution as

both sides sacrificed some of their rights so that the federal system would function. The

conceptual examination of fundamental rights’ assurance in a democracy unveils the

major consideration behind the creation of guarantees such as fundamental rights: such

rights shall serve the public interest, which embodies the need for measures protecting

the rights relevant to the public interest.

Implementation of core fundamental rights empowers the Citizens (as stated before)

and provides them with means to articulate and to enforce public interest; besides

stimulating their participation-intent. Yet another aspect that diminishes democratic

34 Kimberly D. KRAWIEC: Cosmetic Compliance and Failure of Negotiated Governance, 81 Wash U. L. Q. 2003,

p. 487 and following

deficit and contributes to upholding the existence of the modern-sense social

contract.

The other angle from which this question could be interpreted is much more logical

rather than empirical. Logics dictates that the existence of a fundamental right (policy)

presupposes that of a fundamental public interest (and its appreciation by the policy-

makers), because the basic public interest is safeguarded by the assurance of

fundamental rights as a feedback to the acknowledgement of that interest. The

fundamental rights are deemed the ’core rights’ (meaning: the point of origin) of the

people which are essential to the survival and self-development of the society.35 NB:

“participation is survival” and the right to participate is rendered as part of a functional

fundamental rights policy.

Now, in terms of the citizens’ direct contribution to democracy by exercising their

rights as part of their half of the social contract, I would like to quote Van de Honk and

Tops on possible impacts of new media (ICT) on the ’functioning of democracy’: “The

central point is the idea that new life could be breathed into the long cherished ideal of

direct democracy by means of interactive media.”36

Interactivity presupposes responsiveness and reflexivity of both sides of political

communication, therefore an efficiently functioning political (and mostly direct)

democracy presupposes reflexive governance mechanisms at a societal level in order

to engage citizens in the debate, or engage them by the means available of electronic

direct democracy in enforcing or reinforcing their constitutional rights.

The other aspect of governance in terms of reflexivity or ‘contractuality’ is that all the

actors37 must provide feedback to each other. Feedback could be provided through

negotiation and this way a reflexive organizational and institutional learning process is

enabled. This process, if present in governance mechanisms, contributes to the

improvement of serving public interest, for it is based on more information from more

sources, i.e. it is better founded, of broader spectrum and more reflexive. Flow of

information must be present as we already pointed out by referring to Lobel. (See:

supra.) Collaboration by way of increasing civic engagement is a prerequisite of

effective contractual, as well as reflexive governance.38

Eventually, as the basis for democratization through cooperation, reflexive negotiations

boil down to collective learning about each other replacing former functions of control

by top-down regulation. What do we gain if we learn? Knowledge. Possessing necessary

knowledge we get to identify issues that need to be reinforced in our contemporary

knowledge-based society.

35 Introduction of R.E. LEENES, B.J. KOOPS and P. DE HERT (eds.): Constitutional Rights and New Technologies

(The Hague: T M C Asser Press, 2008). 36

W.B.H.J. VAN DE HONK - P.W. TOPS: Orwell or Athens? Informatization and the Future of Democracy, In:

W.B.H.J. VAN DE HONK, I.Th.M. SNELLEN, P.W. TOPS (eds.): op. cit, p. 15. 37

These actors include private stakeholders and the public stakeholders for all the branches of power as well. 38

On ‘collaborative governance’ see Judy FREEMAN: Collaborative Governance in the Administrative State, 45

UCLA L. Rev. 1, 1997

This self-preserving mechanism can contribute to the evolution of democracy in case the

freedom to express such revelations is assured to the citizens by paramount laws. We

can conclude with certainty that reflexive governance shall result in reflexive law and

reflexive law shall result in reflexive legislation, which in itself fulfills the requirements

of good governance imposed on democratic constitutional states.

A relevant definition of reflexive law is given by Weiner, according to whom it

“represents negotiation protocols, that is, the mutual understandings by which actors

engage in practical situations within the social space/civil spheres they share”.39 The

identification and interpretation of social mainstream needs is ensured, which enforces

the trust of citizens in governments. The principles of democratization by

informatization -- as information is the means that enables the collective learning

process -- shall therefore be included in all constitutions as safeguards to abate

democratic deficit. This of course means more effective adaptation and promotion of

freedom of information legislation and introducing effective systems for the reuse of

public sector information. The involvement of civil society has duly increased in the past

years, but is still marginal, constituting a circulus vitiosus as a result partially of state

secrecy policies and ‘old-fashioned’ public information management lacking adequate

digital capacities.

Lost or Found?: The ’Fundamental’ Question in the EU

Certain problems and inefficiencies of fundamental rights regulation on the European

level are pointed out in the REFGOV in connection with the determination of the modern

sense of public interest. The first step in the analysis stems from the determination that

services of general interests (public services) provide citizens possibility of making use

of their fundamental rights.40 The REFGOV research concentrated on the dilemma of the

current definition of public interest and its constituents (as e.g. in the case of universal

service, which is clearly of public interest in the Information Society according to

current EU legislation) and whether it could be derived from the current regulation of

fundamental rights at the European level? The answer provided was No.

There is no Common Fundamental Rights Policy (CFRP) like CFSP41 due to -- in great

extent -- the negative approach of fundamental rights throughout the Union. The

member states are only obliged to respect such rights but on the other hand they are not

necessarily obliged to actively realize them (their duty remains abstract). This

consideration aside, it is clear that each member state has its own fundamental rights

policy to pursue, set out in their respective constitutions; but, the problem is that it

remains unknown to other stakeholders in the Union. Therefore, there is no way to

evolve a set of common principles (such as e.g. good governance42) that could contribute

39 Richard R. WEINER: Complementary Institutions and Reflexive Governance in Autonomous Social Law (in:

Central European Political Science Review, 29/2007, p. 31.) 40

European Commission COM (2003) 270 report on services of general interest. Remark: Is it not possible that

fundamental rights provide citizens the enjoyment of the profit of their general interests? (See: hypothesis,

elaborated in the foregoing sections.) 41

Common Foreign and Security Policy 42

Remark: such good governance principles or codified good/best practices are present and applied in other

international organizations, e.g. OECD, United Nations.

to some extent to forming a general, universal, European policy framework of

fundamental rights.

However, an adequate EU-centric and carefully constructed common fundamental

rights governance policy could be formed if based on ‘contractual’ and reflexive

dialogue between the member states. The paradigm that lies at the heart of the

problem is, that throughout the institutional system of the EU and that of the member

states fundamental rights are considered as limitations restraining the Union and

the several states from exercising powers to handle certain problems. Albeit, in reality

fundamental rights represent a set of values (cf. good governance) that need to be

considered and respected in the course of actions by any state both in the national and

international context. (This evidently brings us to the exercise of power over the

conflicts emerging on the ‘global playground’, in other words: global governance).

As opposed to this general practice, fundamental rights policies should be better

coordinated on every different level of governance, reflexivity and re-action (not just

action) ought to appear in consideration of the different state best practices in the

national context.

This utopia of course presupposes the existence of reflexive governance methods

throughout the European Union, as previously elaborated. In addition, the willingness of

actors being open to the opinion of other actors of reflexive governance shall exist as a

fix variable. Other actors are e.g. civil society organizations, who -- being aware of the

needs and rights of their constituents (the governed) -- can more effectively contribute

to the evolution of democracy and basically the creation of a human rights based,

reflexive governance.

Openness to the exchange of information and opinions is what makes the evaluation of

the feedback provided very effective in the development of governance. As previously

stated, the lack of disclosure, interoperability and cooperation between and within

member state governments causes the absence of knowledge about member state best

practices in terms of fundamental rights policies, accruing to the lack of a sufficient base

for closing up on a European approach of common principles of fundamental rights as

part of reflexive (good) governance principles. I hereby united the two concepts because

reflexivity is a requirement stated by the principles of good governance.

Bear in mind, that there is a notion that sheds light on the values of constitutionalism in

the European sense: the domain of the common constitutional heritage of the

member states serves as a proxy for CFRP for the moment.

It was created through several decisions of the European Court of Justice (ECJ), but its

concrete content and context is yet to be determined. In Internationale

Handelsgesellschaft v Einfuhr und Vorratstelle fur Getreide und Futtermittel43 the Court

dealt with the conflict between Community law and certain fundamental principles

within the EU. They had to decide whether an administrative measure imposing

financial penalties on exporters could be struck on grounds of disproportionality. The

ECJ mentioned in the conclusion, that constitutional traditions common to member

43 Case 11/70. ECR 1970

states (i.e. the common constitutional heritage) could be a source of ’inspiration’ of

Community law.

The ECJ determined the origin of these principles first in Nold v Commission,44 where two

main sources were identified and recognized:

(i) the constitutional traditions of the member states, and

(ii) the international treaties to which the member states were signatories.

Judgments can be based on such fundamental principles -- embedded e.g. in the

European Convention on Human Rights and the EU Treaty or the European Charter of

Fundamental Rights -- that are common and intertwined in all democratic systems

throughout Europe, but the explicit content of the common constitutional heritage is yet

to be determined.

The common constitutional heritage in its current state it is too vague and abstract: the

constitutional traditions of the member states are quite different in all aspects except

maybe in terms of the few quintessential fundamental rights. When faced with issues

that have different constitutional emphasis in different member states the ECJ would

find itself cornered and forced to determine the boundaries of the de facto common

constitutional heritage that is to be used as means to protect fundamental rights.

Finally, the last question remains to be addressed:

Should the ECJ set European standards for safeguarding fundamental rights as the

lowest common denominator for the member states to abide by?

Such a solution could raise issues leading to rethinking the conventional boundaries of

decision making and sovereignty if the case may be that a member state is by ECJ

judgment forced into a position to accept and respect fundamental principles that would

not necessarily exist under its national law.

Obviously, the existence of the Accession Criteria (Copenhagen) also signifies the

recognition of certain common fundamental principles that were set forth as

prerequisites to all candidate country to achieve before becoming a member to the

Community. The political pillar of Copenhagen criteria could be construed as a

foundation to a future common fundamental rights policy that sets out basic

requirements for the prospective members: “stability of institutions guaranteeing

democracy, the rule of law, human rights and respect for and protection of minorities”.45

It is noteworthy to add here that the Charter, ratified as part of the Lisbon Treaty in

2009, might serve as basis for a CFRP-like framework in the future. It has already

been invoked on several occasions as reference by the ECJ but its final place in

substantive EU law is still formulating. Since now the Charter has significant legal effect

aside from being a strictly political document, it can lead to the very first step in the

formation of the basics of CFRP. The Charter could be construed as the common

denominator that was called for already in the course of my analysis. With the help of

44 Case 4/73 ECR 1974

45 http://europa.eu/scadplus/glossary/accession_criteria_copenhague_en.htm

the principles laid out therein, European Courts can start basing judgments not only on

the common constitutional heritage but also on the commonly accepted basic rights set

forth in the Charter.

Conclusions: Common Fundamental Rights Policy by Reflexive Law

Summing up I conclude that the exact legal content of the common constitutional

heritage shall be filled by creating reflexive law through reflexive governance in the

public interest, and the system must be put in motion without infringing the sovereignty

of the member states, merely on the basis of a universal service to promote the

evolution of democratic mechanisms and political inclusion within Europe.

This process should generate regulatory competition between the member states

unifying them under the goal of achieving “better rulemaking”, and assuming liability for

legislative acts passed in consideration of everything that has been stated hereinbefore.

Eventually, such a competition will lead to the identification of the most recent

dilemmas and the most adequate solutions to handle the question of fundamental rights

governance in the EU. This way, through reflexive political processes, the formation of

common European principles, a real constitutional heritage could be easily ‘kick-started’

in terms of fundamental rights policies.

For this to happen, fundamental rights policies within the EU shall be analyzed

(i) outside their original national contexts,

(ii) in terms of the ‘common good’

(iii) with obvious respect to respective national characteristics of fundamental rights

protections and policies.

Diversity must serve as the basis for the Unity contemplated by the motto of the EU. For

the investigation and familiarization of the original, national context of each member

state’s fundamental rights policy is highly time-consuming and economically inefficient

the solution which can be problematic, however, significantly facilitated by the

engagement of citizens in form of NGOs. Should this problem otherwise be solved, yet

another remains, stemming from the hereinbefore mentioned negative approach to

fundamental rights on the European level.

In my view, the outline of the obstacle to be tackled consists of two elements:

(i) First, fundamental rights are always examined not in the European context but in

terms of the regulatory framework of a member state; and

(ii) Second, the investigation never extends to quintessential questions of

implementation, which are by definition basic in the establishment of a national

governance framework in terms of fundamental rights.

Should analysis extend to the examination of such factors it would ease the compilation

of a catalogue of principles that would help unify certain implementation principles as

the basis of a comprehensive governance mechanism of fundamental rights throughout

the European Union.