Non-Majoritarian Instruments and Institutions: Dissensus and Democracy in Europe

It has become common place to lament that democracy is in decline and that disagreement, polarisation, or even dissensus is mounting.[1] Democracy means different things to different people,[2] but one important characteristic of democracies in Europe is its combination of majoritarian and non-majoritarian institutions and instruments. Drawing on Thatcher and Stone Sweet, we understand non-majoritarian institutions as ‘those governmental entities that a) possess and exercise some grant of specialised public authority, separate from that of other institutions, but (b) are neither directly elected by the people, nor directly managed by elected officials’.[3] As regards instruments, international and EU law while endorsed and ratified through national Parliamentary processes, bind EU Member States and therefore may take a non-majoritarian role.

This Special Section constitutes a collective academic effort from a number of European legal scholars engaged in the REDSPINEL Project. As an EU-funded project, REDSPINEL focuses on ‘tensions and synergies between democratic legitimacy, participation, expert-led mechanisms, and judicial review when addressing rights violations, inequality, and discrimination’.[4]Within a system of separated powers, non-majoritarian instruments and institutions have a central role in allowing constructive as well as disruptive dissensus, not only on individual policies but also on the values underpinning them. We broadly align with the conceptualisation of dissensus within the RED SPINEL community as ‘a conflict between different types of actors, either about the fundamental principles of liberal democracy (its institutions or polity) and rights or about their implementation through specific policies, or both’.  

In this Special Section, we critically analyse the role of non-majoritarian instruments and institutions with respect to three challenges that shape contemporary democracies in Europe: economic inequality and discrimination, growing authoritarianism, and the pressing climate crisis.

This collection focuses on two illustrative types of non-majoritarian actors, i.e., independent regulatory bodies and courts, but we acknowledge the richer tapestry of entities that would align with this characterisation in EU law. Regulatory actors involved in policy-making are a primary example of non-majoritarian institutions, insofar as they act prospectively and are sometimes able to exercise an agenda-setting function. Conversely, courts act retrospectively, and at times even in a counter-majoritarian way, but only when litigation is brought to them. We bring together contributions discussing different forms of non-majoritarian instruments and institutions as channels to express dissensus and counterbalance, discipline, and complement majoritarian decision-making. From this perspective, our case studies investigate whether and how non-majoritarian instruments and institutions contribute to establishing or undermining elements of a robust democratic space with adequate de facto levels of fundamental rights protection and equality. 

Refraining from making specific claims for generalisation, our work is exploratory in nature. It aims at identifying communalities and differences in role, practice and impact between these two types of institutions. It intends to engage with the question of how they contribute or simply engage with Europe’s argued democratic erosion and growing dissensus.[5] While we focus on the law, we are sensitive to the context in which legal institutions operate. Our work is constantly challenged by the question of how the recourse to non-majoritarian institutions is shaped by external political factors – such as alleged breach of the rule of law, the ecological crises, or growing political dissensus. 

1.   Understanding European non-majoritarian institutions in time of dissensus

This Special Section offers a series of case studies on the role of non-majoritarian institutions in advancing substantive policies, protecting institutional interaction, and ensuring a level playing field in practice. Particular attention is given to Europe’s multilayered legal landscape, where not only national but also regional regulatory agencies and courts are in the position to reign in and even counter majoritarian decision-making.

Majoritarian decision-making is not limited to, but can be best captured by the egalitarian idea of one-person-one-vote in democracies with a strong representative dimension.[6] We can observe it in qualified majority voting within the Council, Parliamentary votes, but also votes within non-majoritarian bodies, such as expert committees and courts. All contemporary democracies in Europe make a strong, usually constitutional commitment both to representative democracy and majoritarian decision-making.

Conversely, non-majoritarian institutions are not based on a majoritarian logic but draw on independent – legal or non-legal – expertise removed from day-to-day politics.[7] These include for example courts, regulatory and non-regulatory authorities. The common trait of non-majoritarian institutions is that their exercise of public authority is not controlled either ex ante or ex post by affected stakeholders or elected institutions such as governments and parliaments.^[8]

Non-majoritarian instruments are usually associated with: i) judicial and administrative review mechanisms; ii) mechanisms of stakeholder and citizen participation; iii) policy-making and agenda-setting of regulatory authorities. The first category often draws on additional restraining layers of law (i.e. constitutional law, EU law, or the European Convention on Human Rights (ECHR)) to reign in decisions supported by parliamentary majorities. The second category is present in all contemporary European democracies that draw their legitimacy not only from majoritarian processes, but also from somewhat entrenched sources removed from politics of the day. The third category is arguably strengthened in EU decision-making as compared to national decision-making.[9]

2.   Inequality, climate change and authoritarianism

Through different overlapping crises, non-majoritarian actors have gained even greater powers in contemporary Europe.[10] In examining this trend, we focus on climate change, inequality and discrimination, and authoritarianism, as partially overlapping and politically salient contemporary crises. Here, non-majoritarian instruments and institutions are either clashing with or reinforcing decision-making by the majority. 

By focusing on both European and national courts and regulatory authorities, this Special Section constitutes an original contribution to the European and national legal scholarship. Our focus on courts and regulatory bodies allows for an interesting scholarly exercise of contrasting the different case studies and identifying how dissensus is voiced through law and institutions.

In more detail, the contributions to this Special Section are structured as follows: One group of three papers engages with prospective regulatory authorities in relation to economic inequality and sustainability: (national) competition authorities (Kati Cseres), EU market regulation (Giacomo Tagiuri), and the role of experts (centrally including the European Commission) in shaping trade in the climate crisis (Piotr Krajewski). The influence of non-majoritarian institutions and instruments on climate policies is then taken up in a paper (Christina Eckes) that focuses on the interactions between the European and national judiciaries (institutions) and the ECHR, EU law, and national law (instruments). The climate crisis is singled out in two papers as the greatest challenge for human rights globally in the 21^st century[11] and an area where a lot more non-majoritarian pushback is to be expected. A second group of four papers further investigates the institutional interaction in the multilayered legal landscape of Europe in a different substantive area. It engages with the institutional interactions between the national and European judiciaries in relation to Poland: one takes a conceptual, constitutional approach (Aleksandra Kustra-Rogatka) and one on the ability of the courts to protect equality rights (Iwona Wróblewska). Poland is singled out as an example in which the institutional crisis of European democracy has manifested in an illustrative manner, where the threat of authoritarianism was present and has eased. The final paper examines the European Stability Mechanism Treaty and the EU-Turkey Statement as hybrid acts, revealing the European Court of Justice (ECJ)’s ambiguous jurisdictional role. The paper engages with the ECJ’s divergent decisions on these types of international agreements to propose a revised approach to the criteria for determining whether such acts are attributable solely to Member States or jointly to Member States and EU institutions, thereby triggering ECJ oversight (Sabine Mair). 

The common thread in all papers is that they examine whether and how dissenting voices are capable of challenging majoritarian decision-making (national legal choices, climate policies); how they are integrated into the decision-making process; and whether and how the examined non-majoritarian institutions and instruments are able to protect fundamental commitments of liberal democracy (human rights, equality). 

This Special Section is a significant contribution to better understanding the role and relevance of non-majoritarian actors and legal mechanisms in liberal democracy. This is ever more important at a time when liberal democracy is itself in crisis (internal dimension), while facing overlapping substantive crises (external dimensions). This dual perspective is likely to intensify both dissensus and reliance on non-majoritarian instruments and institutions in the future. We do not give conclusive answers on how to conceptualise non-majoritarian elements in our contemporary European democracies and their legal order. However, contrasting the findings in several fields and jurisdictions allows us to leave the familiar dichotomies between democracy and technocracy, law and politics.