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Allocation of Competences in a (Con)federal Setting: How to
Democratize a Perennial Conflict
Raf Geenens and Helder De Schutter
Prepared for the Canadian Political Science Association 2014 Annual Conference – Brock
University, St. Catherines, Ontario
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Early draft (Please do not quote or circulate. All comments welcome. )
Abstract
Certain contemporary (con)federations, like Belgium, the EU and Canada, suffer from deep
disagreement about what competences should be exercised at what level. Often, this
disagreement becomes so pervasive that it disrupts the working of democratic fora that should
actually concentrate on regular policy making.
In this paper, we argue in favour of setting up a separate democratic arena exclusively dedicated
to the (re)allocation of competences over different levels of government in federations. There are
several democratic reasons why competence conflicts need to be institutionalized separately.
i. When not contained in dedicated procedures, disagreement over the distribution of
competences can erupt elsewhere and might spoil regular democratic debates over substantial
policy issues.
ii. The interests opposing each other in competence conflicts do not necessarily match the
interests represented through existing procedures.
iii. The principles at stake do not linearly match the principles involved in “normal” politics. Rather
than a matter of left-right oppositions, the distribution of competences involves considerations of
subsidiarity and efficiency and often requires a judgement concerning feelings of national
belonging.
iv. Currently, the stakes and forces at play in competence conflicts are often insufficiently visible
and hence poorly understood by all those concerned.
Because of these four reasons, we propose a “tripartite” model of federalism, in which state and
sub-state level are supplemented by a third “branch” responsible for modulating the relation and
distribution of powers between the other two levels.
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The authors can be reached at [email protected] and [email protected] .
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Introduction
One of the chief reasons, if not the chief reason, why federalism is often put forward as an
appropriate constitutional arrangement, is its ability to create political stability. Within a
(con)federal structure, different nations, territories or substates can jointly inhabit one larger
political structure, thereby pacifying their mutual relations and combining their desire for local
autonomy with the need for central government. Many federations, however, are saddled with
one strongly destabilizing factor, to know: conflict about the allocation of competences. Of course,
not all federal systems are. But certain contemporary (con)federations, like Belgium, the EU or
Canada, do suffer from deep disagreement about what competences should be exercised at what
level. Sometimes, this disagreement becomes so pervasive that it disrupts the working of
democratic fora that should actually concentrate on regular policy making.
Surprisingly, existent theories of federalism make little room for conflicts about the distribution of
competences. Some theorists even believe that an “ideal” distribution of competences can be
found (and that their theory can provide the principles of it), can be implemented in political
reality, after which little further adjustment would be necessary. In this paper, we claim that this
conflict should be taken seriously as a permanent feature of federal systems. Rather than seeking
ways to end or to contain it, citizens and politicians in federal systems should accept this conflict
as an ineradicable aspect of what it means to live in a federation. Many current federations,
however, have an uneasy relationship with this conflict and some even see it as a threat to the
survival of the federation.
Going against such views, we argue that this conflict should be properly institutionalized and
given due space. We believe that, when properly institutionalized, keeping this conflict going can
actually be a boon to political stability. More specifically, we believe that this conflict should be
dealt with in a more democratic manner than is currently the case in existent federations. Almost
all federal structures have at least some institutional mechanisms in place that allow for the
reshuffling of competences from one decision level to another and that are able to somehow
resolve the competence conflicts that might arise between different decision levels. It is our
contention, however, that even if these institutional mechanisms are effective, they often suffer
from a considerable lack in democratic legitimacy. That is to say, citizens do not have adequate
democratic control over the process of competence (re)allocation.
This is why we argue in favour of setting up a separate democratic arena exclusively dedicated to
the (re)allocation of competences over different levels of government in federations. Below, we
discuss four specific reasons why comptence conflicts need to be institutionalized in a democratic
forum of their own (sections I through IV). In the text’s final section (V), we offer a rough outline of
what such a separate democratic forum could look like in practice.
The fact that we advocate the erection of a separate institutional platform to handle the
(re)allocation of competences, implies that we are opting for a “tripartite” vision of federalism.
Regular federal systems are “bipartite” in the sense that they are composed of two levels: a statewide unit (which can be a sovereign state, as in the case of Belgium or Canada, or supranational
entity, such as the European Union) and the underlying “sub-states” (which can be sovereign
states, as in the case of the EU, or provinces, territories or regions, as in Belgium and Canada).
We propose supplementing the state and sub-state level with a third “pillar” of “branch”,
responsible for modulating the relation and the distribution of competences between the other two
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levels. This third entity should function largely independently from the two traditional levels of
government, thus giving the federal system a “tripartite” structure. Rather than just being
composed of two levels opposing each other, a “tripartite” federal system would have three
distinct political centres. Certain seeds for such a “tripartite” model can be found in the theories of
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federalism developed by Albert Hänel (1873), Hans Kelsen (1966) and Olivier Beaud (2007).
The reader should forgive the authors of this paper for regularly indulging in using the Belgian
federation as an example. This is clearly due to the fact that Belgium is the case we are
personally most familiar with. But we also think that Belgium offers a paradigmatic example of a
federal system that would run smoother if it were to adopt our “tripartite” logic. This does not imply
(or so we hope) that the relevance of our discussion is limited to the Belgian case.
We see the next step of this paper to consist in fleshing out more properly how non-Belgian
examples may fit the same bill – any comments in this respect are much appreciated.
I. Spillover
A first and rather important reason for evacuating competence conflicts from the regular channels
of policy making, is the problem of “spillover”: when not contained in dedicated procedures,
disagreement over the distribution of competences might erupt elsewhere and might spoil regular
democratic debates over substantial policy issues.That is to say: this disagreement might come to
interfere with regular policy making and, in some cases, even prevent the proper functioning of
other policy levels.
A clear example (and the example that admittedly inspired our “tripartite” model) is the
government crisis that affected Belgium from 13 June 2010 until 6 December 2011. During the full
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length of this period, Belgium was without a federal government. Cabinet formation in
Belgium—a country that is famously divided by deep language and ethical differences—has a
history of being troublesome, but this was by a large margin the longest cabinet formation period
in Belgian history. The cause of this sad record was a profound disagreement over further
devolution (as well as a number of other institutional questions related to Belgium’s federal state
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structure ). Although there was also disagreement regarding the substance of the policies of the
next government, these disagreements were certainly more digestible and could have been
overcome in a much shorter span of time. In fact, hardly any attention was given to these
substantial policy issues during the lengthy negotations, as all attention was focussed on
institutional questions. This is exactly the problem of “spill-over”: disagreement about what
competence should be located at what level of government, comes to prevent the regular
functioning of democratic government levels that should actually focus on substantial policy
making. During this Belgian crisis, the whole business of governing Belgium came to a grinding
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For a more analytic discussion of “tripartite federalism” in contrast to “bipartite federalism”, see Helder De Schutter and
Raf Geenens, “The Federal Division of Powers: A Tripartite Proposal” (unpublished manuscript). Beaud and Kelsen
propose a theoretical distinction between the state as a whole and the state-wide federal political order, which, along with
the sub-state levels in a federal state makes for a tripartite theory of federalism. But they don’t give that third entity, the
state as a whole as distinct from the state-wide federal political order a concrete institutional existence, which is what we
advocate here.
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There was a care-taker government (as is usual in coalition systems: the old government formally continues to rule until
coalition talks have resulted in the successful formation of a new government), but its ambit was limited to ongoing affairs.
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In particular the splitting of one specific electoral district (Brussels-Halle-Vilvoorde), a leftover decision from a previous
step in Belgium’s ongoing process of state reform.
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halt because of irreconcilable differences, not regarding the substance of policies that the Belgian
government should implement, but regarding the “meta-question” of what competences should be
allocated to what level of government. There is no reason why this should be so, as there are no
compelling reasons why the allocation of competences should be decided at the same level and
at the same time as substantial policy issues. Yet the effect of doing so can be devastating, and
can deprive a political community—in this case: Belgium—from the very possibility of governing
itself. Thus, the proper functioning of democracy (roughly defined as the democratic exercise of
competences in line with the intentions of voters as expressed through elections) can be
threatened by improperly institutionalized competence conflicts.
This problem also has resonance beyond Belgium (or countries where a similar contamination of
competence exercise and competence allocation at the beginning of a new government exists), in
the following way. In many federal systems, competence allocation discussions need to be
sometimes had, and decisions need to be made. If you find yourself, however, in a minority
postion regarding a certain political discussion, but you know that after an envisioned or not
unlikely competence allocation reshuffling you may find yourself in a majority because more
people are of your opinion when the competence in question is either moved up or down a level,
then you have a clear incentive to seek to obstruct or postpone the current discussion, or to
invest all the political energy not into discussing the topic but into discussing the place where the
topic is to be discussed and to initiate a reshuffling of the competences. Perhaps nothing can be
done to entirely stop this dynamic, but there are ways to mitigate its negative effects. One way of
doing so would be to relocate the competence discussion to a separate forum.
In summary, the “spillover” argument reads that intense disagreements concerning changes in
the distribution of competences over different levels of government, should not be able to hinder
the proper functioning of these levels of government with regard to the competences which they
currently hold. The constitutional conversation concerning the appropriate allocation of
competences is important but needs to be evacuated from the fora where the competences are
actually exercised. This is a structural problem today in federal orders like the EU and
multinational federal states. Relocating competence discussions to a separate forum can remove
the competence allocation card from content discussions.
II. Different interests
A second reason to evacuate competence conflicts from regular fora of decision-making to a
separate, dedicated forum, concerns the adequate representation of interests. The interests
opposing each other in competence conflicts do not necessarily match the interests that are at
stake in conflicts concerning substantial policy issues.
When it comes to transferring a competence from its current location to another decision making
level, at least three different bundles of interests can be distinguished: the interests of all affected
citizens (their interests might or might not be aligned), the interests of representatives and
personnel of the decision making level currently exercising this competence, and the interests of
representatives and personnel of the “destination” decision making level.
Currently, there are few reasons to assume that all of these interests are adequately represented
in competence transfers, as these transfers are usually decided upon by politicians representing
only one policy level. In the Belgian case, for instance, competence transfers are decided at the
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Belgian level and are thus exclusively discussed and decided by politicians operating at this level.
In the case of the EU, competence transfers are decided through treaty changes in which the
national governments have a decisive voice and in which the EU’s supranational institutions
(such as the Parliament) hardly play a role at all. Whether interests other than those of
representatives and personnel of the level whre the decision is made get sufficient exposure and
attention, is by no means guaranteed.
With regard to the EU, this problem has repeatedly been exposed. Alan Milward and Vibeke
Sørensen, for instance, emphasize the role of national executives who, throughout several
rounds of institutional reform, have maintained their position in the EU’s driver’s seat and have
managed to keep key policy competences either in their own hands or within the hands of the
European Council (which is populated by national executives) (Milward and Sørensen 1993).
Similarly, Jürgen Habermas suggests that the process of European integration is unduly slowed
down by national elites, who have a direct interest in resisting the further transfer of competences
to the European level (Habermas 2013). He also predicts that if European populations would be
exposed to proper public debates and make their own considerate choice through referenda, they
might well strengthen the center of the EU at the expense of their own national governments:
The image of a mentally lethargic population ‘lagging behind’ the political elites in the
process of enlargement represents just one side of the coin. Once elites decide to make
existential questions such as the adoption of a European constitution into the focus of a
wide-ranging, informed public debate, a population can also outstrip its government. One
explanation for the unpredictability of referenda is that a politically mobilized population
can make decisions without concern for the interests of professional politicians in retaining
power. For example, the “European enthusiasm” of the national elites dwindles once their
own powers and opportunities for self-promotion are placed in question along with the
scope of action of national governments […]. (Habermas 2008: 454)
Cosmopolitan authors tend to surmise a similar tendency at the global level, with national
governments selfi-interestedly resisting institutional reforms that would transfer competences
upwards, for instance to a strengthened UN. Richard Falk talks of the “vested interests” of
sovereign governments in maintaining their own role in the global setup (Falk 1975: 4). In a
similar vein Daniele Archibugi speculates on the different policy preferences of national
representatives and (hypothetical) directly elected global representatives. He conjectures that,
when institutional questions are at stake, the former will always be “more inclined to sustain
‘state-centred’ policies”, whereas the latter can be expected to have “a greater propensity towards
‘global’ policies” (Archibugi 1995: 141) (cf. Geenens 2011).
The hopes of these authors might be too optimistic and too strongly biased in favour of
respectively the EU and the UN, yet the mechanism they describe is highly plausible. The
representatives of national policy levels, although they represent the interests of the citizens who
elected them and although they can generally be expected to do so in a faithful manner, might be
less faithful when it comes to questions regarding the allocation of competences. For in such
questions, they have a specific collective interest (maintaining competences—and that means
power—within their own hands), an interest that will not always be aligned with the interests of
their voters, and which their voters might or might not be able to discern.
Thus, as long as decisions concerning the distribution of competences are made at one of either
levels in a federal system, the interests of politicians operating at that specific level will be
overrepresented and will likely bias the decision process. It is not obvious how that tendency can
be checked and how other interests (those of politicians operating at the other level and those of
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the actual citizens) can get adequate representation at that level, as all representatives operating
at that level per definition fall within this same group. Depending on particular circumstances, this
mechanism might have less or more troubling consequences. But it seems clear that the most
robust way to prevent this mechanism from kicking in, would be to move decisions concerning
competence allocation to a separate forum.
III. Different principles
A third weakness in existent procedures leading up to competence transfers, concerns the
principles involved. The principles at stake in competence conflicts do not linearly match the
principles involved in “regular” politics. Rather than a matter of left-right oppositions, the
distribution of competences involves considerations of subsidiarity and efficiency. Moreover, it
often requires a judgement concerning feelings of national belonging and concerning the
importance of such feelings in the allocation of competences.
The current democratic decision and election mechanisms that eventually result in competence
reallocations, were not designed for this purpose. They were usually designed in “happier” times
when the reshuffling of competences between multiple levels was at best an exceptional event
that happened at times of constitutional crisis or (re)foundation of the state. Thus, these
mechanisms were predominantly designed, not to decide upon the allocation of competences, but
with the business of “regular” politics in mind: conflicts about social, economic or ethical
questions, as well as about questions of “traditional” foreign policy. These “regular” conflicts are
typically structured around such well-known ideological oppositions as left-right, progressiveconservative, or communitarianism-liberalism. Political parties are—allowing for local
specificities—structured around normative polarities of this kind.
The established positions in these conflicts, however, do not automatically align with the positions
involved in competence allocation conflicts. For when it comes to allocating competences, a
whole new set of normative issues comes into play. Some will for instance claim that priority
should be given to efficiency and thus that competences should be allocated on the basis of the
principle of subsidiarity—although what that principle dictates in concrete circumstances is often
not self-evident and rather a reason for further disagreement (cf. Follesdal 1998; 2013). Others,
however, will be inclined to claim that many or certain policy issues have an intimate connection
with collective identities, and hence that the competence to decide upon these issues should be
allocated, not on the basis of considerations of efficiency, but on the basis of considerations of
identity: what is the relevant community that needs to be able to decide autonomously in this
policy area if it is to recognize itself in these decisions and thus externalize its own identity? What
this would imply in practice will usually occasion further disagreements, as not all those
concerned will agree on how the relevant community should be delineated and what policies are
indeed crucial to that community’s collective self-image. Moreover, some participants might claim
that feelings of collective belonging are not relevant at all in assigning competences, so a prior
decision on the relevance of such considerations might be needed, a decision that will rarely be
made unanimously.
Given the lack of congruence between all such considerations and the classical ideological
positions, it is evident that existent democratic procedures are not well suited to express, channel
and resolve disagreement over the allocation of competences. The parties involved in existent
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democratic procedures embody clear positions in traditional, “substantial” political disagreements,
yet they do not at all embody clear positions in disagreements over the allocation of
competences. As a result, electoral competition between these classical parties—especially if this
competition is at the same time about traditional policy issues—is not very well suited to
accurately channel the preferences and opinions of voters with regard to the allocation of
competences. In fact, it is highy unlikely that voters will have a clear-cut choice regarding this at
all.
Again, this is already visible in Belgian and EU politics. Many Belgian parties (especially on the
Flemish side) are highly internally coherent when it comes to “regular” policy matters, but are
strongly divided (sometimes to the point of fissure) when it comes to questions regarding state
reform or regarding further competence transfers from the national (Belgian) level to the regional
(Flemish) level. Similar evidence is provided by the UK’s Conservative Party, which was (and still
is, albeit to a lesser degree) divided with regard to the EU. Obviously, a voter voting for such
parties gives a completely indeterminate signal with regard to competence allocation decisions.
This does not imply that deciding competence reallocations in regular, existent democratic arenas
is radically undemocratic. But it does suggest that these are not the most appropriate arenas to
give citizens a clear say over what policy domains should be allotted to what policy level. Parties
and individuals elected within currently existent democratic procedures are indeed elected and
hence might have the required formal legitimacy to decide upon competence transfers. Yet it
does not follow that, when it comes to the (re)allocation of competences, they are well placed or
even capable of giving citizens a clear view on the options that are open to them and the
normative principles involved.
IV. Visibility
Following up on the two previous points, it can now be stated more specifically just what is wrong
with most current procedures to reallocate competences. They fail to make visible the interests
and principles involved. They might have sufficient formal legitimacy to relocate competences
from one policy level to another one. Yet democracy involves more than formal procedures
creating formal legitimacy. If one holds a thin, procedural account of democracy, one could well
be of the opinion that current competence allocation practices are sufficiently legitimate. On a
richer conception, however, democratically legitimate decision making requires the presence of a
stage, visible to all citizens, where all relevant policy issues are laid out in a manner that is both
comprehensible to all citizens involved (i.e., the relevant issues should not be clouded in
technicalities) and that is sufficiently antagonistic (so as to generate a sufficient amount of
political energy and interest) (cf. Lefort 1988; Rummens 2012). This is best realized when the
conflict is structured “around a limited number of identifiable players and positions” (Rummens
2012) – provided, of course, that these players and positions do indeed embody the relevant
interests and principles involved. This is exactly what is currently missing: the principles and
forces at play in competence conflicts are insufficiently visible and hence poorly understood by all
those concerned. Existent procedures might bestow formal democratic legitimacy upon
competence (re)allocations. Yet they hardly function as a “stage”, where the allocation of
competences is openly discussed and where the normative issues and the different interests at
stake are visible on the table.
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Again, the examples of Belgium and the EU are particularly clear in this regard. In both cases,
one could claim that, from a formal perspective, all decisions concerning the distribution of
competences are democratically legitimate. In the Belgian case, the reshuffling of competences
requires modifications in the federal constitution, which can only be changed at the federal level
by elected politicians following specific rules (supermajoritarian arrangements apply for changes
to the constitution). In practice, decisions concerning competence reallocation are typically made
when a new federal government is formed, the redistribution of competences often being a key
issue in coalition talks. Thus, one could argue that since these changes are decided upon by
(freshly) elected representatives, they are perfecty legitimate.
In the European case, the transfer of competences to the EU-level (or the rare re-transfer of
competences to national governments) invariably requires treaty changes or amendments. Such
changes or amendments are unanimously decided upon by representatives of all national
governments and in certain cases and countries might need to be ratified by referendum. As
such, one could plausibly claim that changes in the distribution of competences between the EU
and its member states are generally decided upon in a perfectly democratic manner (cf. Risse
and Kleine 2007).
Yet it is hard to subdue the feeling that, even under these conditions, citizens do not have a
genuine say in the process. This is certainly how citizens often feel themselves about such
processes. The reason, we believe, is that the different principles involved are rarely laid out or
discussed separately from other policy issues, and only very rarely do citizens get to see a
genuine conflict between groups or individuals defending different interests in this regard.
V. What could it look like?
For these four reasons, then, we believe the allocation of competences should be evacuated to a
separate institutional pole that is sufficiently independent from a federation’s actual decision
making levels so as to allow for a proper, democratic institutionalization of competence transfers.
The fact that this third pole should be organized in a democratic manner does not preempt
decisions about how this pole should be institutionally organized in actual reality. Many different
options are available. It can or cannot be composed of indirectly elected members (representing
different levels of decision making), it can or cannot include directly elected members, its working
can be tied to another electoral cycle (the electoral cycle of another decision making level) or it
can have its own electoral cycle. The ultimate decision regarding competence transfers could
also be linked to a referendum, as referendums – when they come at the end of a sufficiently
robust public debate – are a good way to engage a very broad share of the citizenry (cf. Tierney
2012). One could also want to make this third pole institutionally more complete by not just giving
it legislative responsibilities, but adding an executive organ to it (so as to steer the implementation
of competence allocation decisions) and even a judiciary (so as to judge over competence
conflicts).
One key property this third pole should have – according to us – is independence: it should be a
visibly distinct institutional body that all citizens can clearly understand to de detached from the
federal system’s other institutional bodies. Of course, it already is different from the other
governing bodies simply because of its function: rather than exercising competences, this new
institutional entity deals exclusively with the allocation of competences. Yet we think it is
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advisable to make this difference visible in terms of time, space and people. First, at least some
of the representatives operating in this body should be elected in separate elections, organized at
different times and at a different frequency so as to clearly set them apart from regular elections.
The most natural choice – in light of political stability – would probably be for a much lower
frequency than “normal” elections. Secondly, it seems wise to establish the premises of this new
institution at a location that is distinct from both the state’s power center and the capitals of the
sub-state units, such as, say, Strasbourg instead of Brussels for the EU. Thirdly, one could think
of mixing the directly elected representatives (who have explicitly campaigned around
competence (re)allocation issues) with delegates from the various sub-state units and delegates
from the state-wide unit. Ideally, the complete decision body would be structured in such a way as
to prevent the dominance from any one group over the other. Specific rules would also have to be
stipulated as to how regularly and for how long this body is to convene.
But such institutional questions fall outside the scope of this paper. Moreover, these details will
differ from federation to federation as they should depend on the type, history, age and identity
structures that exist within the federal system. Yet no matter what shape this third pole concretely
assumes, we believe its operations should be such as to satisfy “strong” conditions of democratic
legitimacy, to know: it should function as a genuinely democratic “stage”, where the allocation of
competences is openly discussed and where all principles and interests at stake are visibly laid
out.
References
Archibugi, Daniele (1995), “From the UN to Cosmopolitan Democracy,” in Daniele Archibugi and
David Held (eds), Cosmopolitan Democracy. An Agenda for a New World Order. Cambridge:
Polity, pp. 121-162.
Beaud, Olivier (2007), Théorie de la Fédération. Paris: Presses Universitaires de France.
Falk, Richard (1975), A Global Approach to National Policy. Cambridge (Mass.) and London
(England): Harvard University Press.
Follesdal, Andreas (1998), “Survey Article: Subsidiarity”, in Journal of Political Philosophy, 6(2),
pp. 190-218.
Follesdal, Andreas (2013), “The principle of subsidiarity as a constitutional principle in
international law”, in Global Constitutionalism, 2(1), pp. 37-62.
Geenens, Raf (2011), “The Emergence of Supranational Politics: A New Breath of Life for the
Nation-State?”, in Telos 156, pp 24-46.
Habermas, Jürgen (2008), “The Constitutionalization of International Law and the Legitimation
Problems of a Constitution for World Society,” in Constellations 15, pp. 444-455.
10
Habermas, Jürgen (2013), “Democracy, Solidarity, and the European Crisis”, Public lecture at KU
Leuven, Belgium, 26 April 2013.
Hänel, Albert (1873), Die vertragsmässigen Elemente der deutschen Reichsverfassung. Leipzig:
H. Hässel Verlag.
Kelsen, Hans (1966), Principles of International Law. New York and Toronto: Holt, Rinehart &
Winston.
Lefort, Claude (1988), Democracy and Political Theory. Cambridge: Polity Press.
Milward, Alan and Sørensen, Vibeke (1993), “Interdependence or Integration? A National Choice”
in Alan Milward, Frances Lynch, Ruggero Ranieri, Federico Romero and Vibeke Sørensen, The
Frontier of National Sovereignty: History and Theory 1945-1992. New York: Routledge, pp. 1-32.
Risse, Thomas and Kleine, Mareike (2007), “Assessing the Legitimacy of the EU’s Treaty
Revision Methods”, Journal of Common Market Studies, 45(1), pp. 69-80.
Rummens, Stefan (2012), “Staging Deliberation: The Role of Representative Institutions in the
Deliberative Democratic Process”, in Journal of Political Philosophy 20(1), pp. 23-44.
Tierney, Stephen (2012), Constitutional Referendums. The Theory and Practice of Republican
Deliberation. Oxford: Oxford University Press.