Participatory Citizenship: Towards a Reformulation of the Principle of Representation

I. Project 1. History. The article 42 of the Belgian Constitution states: "The members of the two Rooms represent the Nation, and not only those who have elected them." This article is traditionally interpreted as constituting the legal ground for the "principle of representation" proper to Belgian constitutional law (Velu, 1986). Following this traditional interpretation, which is taken from the French doctrine, the "principle of representation" is built upon four subsidiary principles (Carré de Malberg, 1921). - (1°) The principle of national representation: the representative, whatever the source of his election is, represents the whole nation, and not only those who have elected him. - (2°) The principle of irrevocability: the electors have no power of revocation, even if faults are committed by the representative. - (3°) The principle of legal irresponsibility: the elections are the only possible sanction for the faults committed by the representative. - (4°) The principle of the prohibition of the imperative mandate: the representative cannot be held liable for the desires expressed by his electors, even if he promised so. These four principles form together a whole conception of representation inherited from Otto von Gierke and Georg Jellinek: the organ theory of representation (Brunet, 2004). The organ theory has always been disputed. For a long time, the main source of this dispute has been the impossibility to apply this theory to another institutional body than the Parliament. It is why, in France, the question of the representativeness of the Président de la République has been raised, followed by the one of the representativeness of the constitutional judges (Hamon, Troper, 2005). But, in Belgium, the introduction of the organ theory by Oscar Orban in his Droit constitutionnel de la Belgique (Orban, 1906) has caused an almost exclusively theoretical discussion : nor the question of the representativeness of the King, nor the one of the members of the Arbitragehof has ever been considered. Moreover, the text of the law of August 8, 1980 (concerning the reform of the State) does not seem to foresee any disposition transposing to the level of the federated entities the principle applicable to the Federal State. The last mention, by a legal writer, of the disputed character of the organ theory and its consequences can be found in Pierre Wigny's Droit constitutionnel (Wigny, 1952). Since then, not only the content of the principle of representation, but also its domain of application have not been seriously analysed and discussed (Gilissen, 1958). The only attempt at launching such a discussion is a PhD in the making, by A.-E. Bourgaux (ULB). 2. Problem. The lack of interest, in Belgium, for the principle of representation is nevertheless put into question by some new events. These events concern the increasingly important - and heavily observed - development of claims concerning the participation of citizens to the political decision-making process (Ost, van de Kerchove, 2002; Chevallier, 2004). This development happens within two fields. - (1°) From a positive perspective: the multiplication of instances intervening at the first stages of the decision-making process. Example: the ViWTA at the Flemish Parliament in matters of scientific and technological innovation (De Sutter, 2006). - (2°) From a negative perspective: the multiplication of critiques concerning the lack of consideration for the point of view of the citizens themselves in this process. Example: the development of the controversy caused by the authorisation to experiment the culture of genetically modified plants on the Belgian territory (De Sutter, 2006). This development of claims concerning the participation of citizens is based on a ever-growing stream of political theory and philosophy, and accompanied by an increasing amount of activist practices. Together, they are at the origin of the emergence of the theme of participatory citizenship, considered as the main political theme of the beginning of the 21st century (Sintomer, 2007; Crépon, Stiegler, 2007). From a legal point of view, the development of the participation of citizens has lead to the formulation of a double critique addressed to the principle of representation. - (1°) First, it has lead to the theoretical formulation of a certain amount of claims ("doleances") concerning representation (Hardt, Negri, 2004). These claims are mainly targeting the principle of national representation which is its first aspect. Rather than to attach representation to an unified and abstract body such as the Nation, these claims intend to make compulsory the taking into account of the concrete diversity of those who are participating to it. - (2°) Second, it has lead to the practical formulation of a set of reforms ("program") concerning representation (Latour, 2005). This set of reforms is mainly targeting the principle of prohibition of the imperative mandate. Contrarily to what the organ theory is stating, the development of new forms of participation by the citizens would have to produce room for the hypothesis, in the constitutional order, of some sort of ad hoc representative, who would not be designated by mere elections anymore. A comparison could be made with the evolution of the organ theory in administrative law, which happened in order to provide some answer to the limitations of the theory of the mandate (De Becker, 2006). Except if one refuses to assume that Belgium is a representative democracy, this double critique has now to be taken into account from a technical perspective, as it is the case in France or in The Netherlands (Hermitte et alii, 2003; Lindahl, 2000). 3. Hypothesis. How to hold together, from the point of view of law, the requirements of the article 42 of the Constitution, the social requirements of citizens, and the political requirements of both institutional and non institutional actors (i.e. activists)? This is the legal question asked by the questioning of the principle of representation by the participation of citizens: the question to know how law can succeed in producing coexistence between heterogeneous practices. Such a question, however, is not an abstract one (De Sutter, 2008). - (1°) From the political philosophical perspective : I have been able to show, in my PhD thesis on the role of the ViWTA at the Flemish Parliament, that to ask the question of coexistence lead to concrete consequences concerning the legitimacy and the legal force of decisions taken by organisms that do not belong to the parliamentary institutions (De Sutter, 2006). - (2°) From the legal philosophical perspective: during the postdoctoral grant that I have been awarded by the VUB for the year 2007, I try to show that this problem also lead to concrete consequences concerning the legal acceptability of the judiciary strategies developed by activist groups such as anti-GMO's associations (Berns, De Sutter, 2008). - (3°) From the legal theoretical perspective, however, the work remain to be done: it is the goal of the present project. The hypothesis that I would like to follow in the framework of the present project is the following one. In order to find, in Belgium, an equilibrium between constitutional principle of representation, social demands of participation, political reception of these demands, and activism in favour of such a reception, it is necessary to reformulate this principle. At the level of the European Union, a similar concern has lead to the birth of an hybrid theory : the theory of interest representation (Greenwood, 2003; Giorgi, 2006). But this theory is not satisfactory, since it consists in the mere legalisation of the institutional situation (the monopoly of stakeholders) against which the social claims concerning the participation of citizens are precisely directed: it explicitly refuses to take into account the demands for participation expressed by the citizens. On the contrary, in order to produce a formulation of the principle of representation which can be able to produce the equilibrium that is at stake with the present project, a local and very determined access to the decision-making process should be rendered possible to new actors, such as the citizens. It is only in that case that the principle of representation could evolve in the direction of what one could name a principle of distributed representation. II. Objectives The objectives of the present project are as follows: A. To produce a complete analysis of the principle of representation in Belgian constitutional law B. To develop the complete legal analysis of the critiques which are addressed to this principle C. To draw the complete map of the problems of representation that are arising in Belgian constitutional law D. To examine the places where the transformation of the principle of representation is required by these problems E. To judge the legal necessity to adopt these transformations, compared to the political and social requirements which are formulated elsewhere F. To produce a credible formulation of the principle of representation which takes into account all these different elements