A N DREAS FOLLESDAL

and reas.follesd al@nchr.uio.no

051005

"If Union Citizenship is the Right Answer, What is the

Question?"*
A lad y asked Dr. [Benjam in] Franklin
Well Doctor w hat have w e got a rep u blic or a m onarchy.
A rep u blic rep lied the Doctor
if you can keep it.

Jam es McH enry, rep resentative of Maryland at the Constitu tional

Convention in Philad elp hia, 17 Sep tem ber 1787

Introduction
The m ost com m on office in the EU is at the sam e tim e hotly contested . Ever since Union
citizenship w as introd uced in the Maastricht Treaty, its content and role has been opaque
and challenged by scholars. 1,2 The Constitutional Treaty for Europe confirm ed that Union
Citizenship provid ed little clarification. Union citizenship is not m eant to replace national
citizenship, but is held by every national of a Mem ber State:
Citizens of the Union shall enjoy the rights and be su bject to the d u ties
p rovid ed for in the Constitu tion. They shall have:
(a) the right to m ove and resid e freely w ithin the territory of the Me m ber
States;
(b) the right to vote and to stand as cand id ates in elections to the Eu rop ean
Parliam ent and in m u nicip al elections in their Mem ber State of resid ence,
u ner the sam e cond itions as nationals of that State;
(c) the right to enjoy, in the territory of a third cou ntry in w hich the
Mem ber State of w hich they are nationals is not rep resented , the p rotection
of the d ip lom atic and consu lar au thorities of any Mem ber State on the sam e
cond itions as the nationals of that State;
(d ) the right to p etition the Eu rop ean Parliam ent, to ap p ly to the Eu rop ean
Om bu d sm an, and to ad d ress the institu tions and ad visory bod ies of the
Union in any of the Constitu tion's langu ages and to obtain a rep ly in the
sam e langu age. These rights shall be exercised in accord ance w ith the
cond itions and lim its d efined by the Constitu tion and by the m easu res
ad op ted thereu nd er.
Article 1-10 2 Cou ncil of the Eu rop ean Union 2004
Beyond this som ew hat anem ic list of rights, d uties are still barely m entioned , and the
point of the office of citizenship is still obscure. Crucial questions are left unansw ered .
What should be required of citizens, on w hat ground s? For instance, w hat need , if any, is
there to insist that they share European values and objectives, and respect d iverse national
values, culture, history? May Union citizens be required to learn about, respect, and even
be socialized to, the facts, beliefs and com m on European values - and each others’
‘national culture’? Should they be m ad e to accept the values and objectives stated in the
Pream ble?
the cu ltu ral, religiou s and hu m anist inheritance of Eu rop e,… CON VIN CED
that, w hile rem aining p rou d of their ow n national id entities and history, the

*
Ap p roxim ately as ap p ears in Sim ona Piattoni and R Scartezzini, ed s. European Citizenship: Theories, A renas,
Levels 2007. N om os Verlagsgesellchaft 123-134.

Electronic copy available at: http://ssrn.com/abstract=1704414

 p eop les of Eu rop e are d eterm ined to transcend their form er d ivisions and ,
u nited ever m ore closely, to forge a com m on d estiny,
(Pream ble)

A political theory of Union Citizenship has little to build on to answ er such questions
about the m ost d efensible role and contents of the office of Union citizenship . The
follow ing rem arks present and d efend som e com ponents of such an account. 3 It interprets
Union citizenship as one m eans to provid e much need ed assurance and trust in a m ulti-
level political ord er w ith d em ocratic proced ures. This fits w ith the received view am ong
scholars, that Union Citizenship w as introd uced in an attem pt to create a closer bond
betw een Europeans and the Union institutions. 4

Section 1 sketches the increased need for com plex form s of trust among ever m ore
interd epend ent Europeans. Section 2 d raw s on the literature on Assurance Gam es to
explain one im portant role of citizens’ socialization to cer tain civic d uties. Section 3
id entifies som e elem ents of such civic d uties in the EU on the basis of a d istinct Liberal
Contractualist norm ative theory. Section 4 contrasts this account w ith those of Jürgen
H aberm as and David Miller.
.

1 Citizenship and trust in multilevel political orders

Few d efend the present list of rights as sufficient for a conception of Union citizenship .
Ind eed , som e critics observe that the package of rights is too m eagre even as a PR stunt. 5
Defend ers m ay rebut that a full accou nt m ust also includ e the w hole legal and
constitutional ord er laid out in the Constitutional Treaty, w ith the Charter of Fund am ental
Rights (now in Part Tw o of the Constitution), and other rights scattered in the
Constitutional Treaty.6 H ow ever, m any of these rights are not exclusive to Union citizen s,
and others are exercised as national citizens.
When it com es to d uties, the Constitutional Treaty only m entions that they exist, w ithout
specification.7 This tem porary silence is und erstand able given the governm ents’ aim to
foster citizens’ affective attachm ent to the Union . Som e scholars question the need and
w isd om of creating su ch attachm ents in the first place. Yet a political ord er cannot be
sustained u nless citizens have d uties and civic virtues in ad d ition to rights. Every political
ord er m ust foster a
'sense of com m u nity' and [w ith] … institu tions and p ractices strong enou gh
and w id esp read enou gh to assu re, for a 'long' tim e, d ep end able
8
exp ectations of 'p eacefu l change' am ong its p op u lation" .
What should those d uties and civic virtues be? The follow ing rem arks explore the
im plications of one und erstand ing of the role of Union Citizenship , as an im portant trust-
build ing m echanism for Europ ean integration.
On this view , Union citizenship should be fostered , an d be built on certain shared civic
9
values and d uties -"som e thin but effectual sense of com m unity ".
Such a sense of com m unity is sorely need ed in the European Union, as in other
m ulti-level political ord ers; especially w ith the increased use of majority and Qualified
m ajority d ecisions.

Multi-level political orders

For our purposes, a fed eration is a political ord er w here com petences are constitutionally

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Electronic copy available at: http://ssrn.com/abstract=1704414

split betw een su b-units and central authorities. The Constitutional Treaty enhances these
features of the EU, since it specifies m ore carefully the exclusive com petences of the Union
institutions and of m em ber states. The EU has features clearly at odd s w ith ‘confed eral’
m od els: Central legislation has direct effect over not only Mem ber States but also citizens.
And d ecisions by qualified majority voting (QMV) in the Union bod ies bind the citizenry
and Mem ber States, even w hen they vote against. This is not to d eny that there are also
confed eral elem ents, but the fed eral features should m ake us heed som e lessons from
com parative fed eralism about m ulti-level system s.10
These p olitical ord ers are typically m arked by higher levels of d eep or
‘constitutional’ conflicts am ong population groups. Ind eed , such conflicts w ithin or
am ong previous unitary states often gave rise to such m ulti-level solutions, rather than
com plete separation or centralisation.11 In ad d ition, the d ivision of pow ers am ong levels in
their constitutional structure is inherently unstable and contested , w ith risks both of
com plete centralization and secession. Many scholars point to the need for w id ely shared
d ispositions am ong citizens and elites to m aintain such political ord ers over tim e. Citizens
need a shared sense of belonging to tw o political com m u nities, as citizens of tw o
com m onw ealths 12: loyalty to m em bers of their ow n sub-unit and an ‘overarching loyalty’
to other citizens in the political ord er.
I subm it that European institutions m ust seek to foster such d ispositions. In
particular, these d ispositions m ust alleviate certain kind s of mistrust likely to arise in the
European setting. The particular need s for trust have d eveloped over tim e, as new m ulti-
level arrangem ents have been introd uced to ad d ress new com m on problem s am ong states
that seek to prevent nationalistic w ars, to achieve econom ic grow th through a com m on
m arket, and w ho now seek com m on d ecisions by m ajority rule.

European institutions as creators and consumers of trust

The institutions of w hat is now the European Union w ere in part d eliberately
created to resolve several collective action problem s. They sought to provid e trust, and
thereby both acknow led ged and reshaped Eu ropean citizens’ and politicians’ end s and
preferences. From the post-w ar beginnings, these arrangem ents w ere typical of ‘com ing
together’ fed eral arrangem ents to secure com m on interests by pooling sovereignty. One
express goal of the 1952 European Coal and Steel Com m unity w as to provid e assurance
that even hostile aggressive states could not pose serious threats to neighbours, by putting
crucial resources und er com m on com m and :
The solid arity in p rod u ction thu s established w ill m ake it p lain that any
w ar betw een France and Germ any becom es not m erely u nthinkable, bu t
m aterially im p ossible. (Schu m an 1950)
The ECSC w ould red uce m istrust about Germ any’s future actions by both pu blicly shift
the opportunity space and payoffs for agents w ith aggressive end s, and by fostering and
supporting agents’ peaceful end s: “the leaven from w hich m ay grow a w id er and d eeper
com m unity betw een countries long opposed to one another by sanguinary d ivisions.”
(ibid ). The ECSC thus facilitated certain contingent strategies of cooperation. It
acknow led ged fear of som e agents’ aggressive end s, and sought to shape incentives and
socialisation efforts in response to possible aggressive strategies. This treaty enhanced
trust both regard ing others’ cooperative strategies and their cooperative end s regard ing
peace – but at the sam e tim e acknow led ged that fears of aggression w ere not unfound ed .

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 The ECSC and later treaties also ad d ressed collective action problems am ong actors
w ith com m on preferences for a com m on m arket that w ould secure econom ic expansion,
low unem ploym ent and rising stand ard s of living. Defection in Prisoner’s d ilem m a
situations had to be prevented , since each governm ent w ould have a d om inant strategy to
protect ow n ind ustries from com petition . Monitored and enforced treaties provid e m eans
for cred ible com m itm ents and red uce risks of suckers’ payoff by m aking such
com m itm ents cond itional on general com pliance through ratification of monitored
agreem ents.13 These treaties for a com m on m arket thus facilitate cooperation by red ucing
the incentives to free rid e. Such arrangem ents enhance trust in others’ future com pliance
by sanctioning non-com pliance. Consid er the four freed om s. If only som e m em ber states
m aintain a free m arket w hile other states hind er com petition, the com pliers stand to lose
w hatever benefits of markets they w ould otherw ise hope for. Th is is of course especially
risky if the regulations - even w hen generally com plied w ith - threaten the m em ber states’
capacity to m aintain social policies or other vital interests of citizens.14 In such cases,
general com pliance can obviously not be expected on the basis of guaranteed benefits for
all, but m ust instead require that participants trust each other. This, in turn, requires the
ability to com m it oneself and convince others of this.
Other sources of mistrust are com m on to such ‘coming together’ agreem ents and holding
together fed erations am ong population groups m arked by strong cleavages. Com m on
d ecisions pose great risks for m inorities w ho m ust trust that a future m ajority w ill not
threaten their central interests. Com m on d ecisions m ay still be preferable, but only w ith
safeguard s. There are at least tw o form s of protection that rend er com m on d ecision
m echanism s trustw orthy. One is sim ilar to ind ivid ual hum an rights entrusted to an
ind epend ent jud iciary that protect ind ivid uals against certain com m on d ecisions.
Likew ise, groups m ay enjoy im m unity and local autonom y over such policy issues as
language or culture. Another m echanism is to keep issues on the com m on agend a, but
d epart from ord inary m ajoritarianism in favour of skew ed voting w eights that favour
m inorities. These arrangem ents prevent or greatly constrain inconsid erate m ajorities’
ability to harm territorially based m inorities.15 N ote that these risks are d ifferent than
stand ard free rid ing. The d anger is not that others w ill not com ply w ith rules, but that the
rulem akers w ill fail to respect the central interests of minorities – w hich m ay be regard ed
as a m eta-rule of d em ocracy. These arrangem ents acknow led ge th e possibility that
m ajorities m ay not alw ays take into account the plight of minorities, d ue to ignorance,
self-interest, or other factors. There is a risk that these protections send a w rong signal,
that citizens in a d em ocracy need not consid er the im pact on others. Just as vetoes,
im m unity or skew ed voting w eights m ay “sim ply send the w rong signals. They m iscue
people - voters and politicians alike - to think in narrow term s of personal and sectional
interests.” 16
EU institutions not only create trust, but also increase the need for trustw orthiness.
Even w ith the protections against m ajority abuse, the increased u se of (qualified ) m ajority
rule creates som e risks and require trust am ong Europeans. The (qu alified ) majority m ust
be trusted to not abuse its pow er, and the loosing m inority m ust be trusted to com ply
w ith d ecisions counter to their best jud gm ent:
"the bare basics of d em ocratic theory tell u s that form al or inform al state
vetos w ill not d isap p ear w ithou t p reju d ice to legitim acy before citizens can
be reassu red either that they w ill m ost likely belong to cross -states
m ajorities or that citizens and d ecision -m akers of other Mem ber States w ill
17
have su fficiently 'internalized ' their concerns.

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Consid er how the EU increasingly requires ind ivid uals and their representatives to ad just
or sacrifice their ow n interests and those of their voters, for the sake of other Europeans.
There are at least four aspects of Union regulations w here trust in the com pliance and
trustw orthy com m itm ent of other citizens or officials seem s crucial. Trust is necessary for
com pliance w ith existing rules, for the creation of new regulations, for establishing and
ad justing new institutions and rules of the gam e; and for court ad jud ication.
Trust in others' stable com pliance is param ou nt for achieving and sustaining existing
practices. In stable d em ocracies, the m ajority can expect m inorities to respect political
d ecisions that go against their better jud gm ent. One reason for such trust is no d oubt that
the losers on reflection can assum e that tod ay’s m ajority w ill com ply even if they lose out
tom orrow ; and because both sid es are confid ent that the m ajority will not d isregard the
losers’ concerns.18
Increased use of majoritarian d ecisions in the Union w ill require further trust am ong
Europeans. It w ill be put to the test w hen ind ivid uals are required to act contrary to the
m ajority of their fellow d om estic citizens out of respect for the m ajority d ecisions m ad e in
European institutions.19 Union citizens m u st com bine and ord er their tw o citizenships:
I am sim u ltaneou sly a Eu rop ean citizen in term s of m y Eu rop ean
transnational affinities to shared valu es w hich transcend the ethno-national
d iversity. So m u ch so, that in a range of areas of p u blic life, I am w illing to
accep t the legitim acy and au thority of d ecisions ad op ted by m y fellow
Eu rop ean citizens in the realization that in these areas w e hav e given
p reference to choices m ad e by m y ou treaching d em os, rather than by m y
20
inreaching d em os.
And consid er sold iers w ho m ust fight for European values and objectives und er a
com m on d efence policy. They and other citizens m u st trust that the forces are not turned
against them selves.
Moreover, citizens and politicians of each Mem ber State m ust trust that the rest of
the Union com plies w ith com m on d ecisions, rather than free rid e on others’ sacrifice.
Second ly, the population at large m ust also trust the legislators and executive
branch. For instance, if the population suspects the Com m ission of abuses of trust,
acceptance and com pliance w ith its d ecisions are at stake.21 The m und ane areas of
everyd ay com pliance w ith Union regulations also require m utual trust betw een citizens
and Union officials, insofar as the public m u st be assured that d ecisions have ind eed been
m ad e w ith their interests in m ind .22
The creation of law s and regulations also requires com plex form s of assurance
am ong legislators in m ultilevel system s. Representatives in supranational or
intergovernm ental bod ies m ust juggle their com m itm ent to their national electorate w ith
sufficient consid eration for the w eal and w oe of other Europeans. And they m ust not be
fooled by less scrupulous representatives, - and they m ust not lose the trust of their voters.
Much trust of these kind s are required in intergovernm ental negotiations: a representative
m ay change her political goals or policy preferences in light of new inform ation, for
instance at Com m ission com m ittees 23, but su ch shifts m ay provoke suspicion am ong
voters. Such incid ents of "public reasonableness" are still sound and applaud able w hen all
can be trusted to participate.24

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 A third area w here trust is im portant is w hen institutions and constitutions are
created or mod ified in (quasi-)constitutional conventions, such as the recent Convention
on the Future of Europe and in the European Intergovernm ental Conferences. Such
changes are to be expected , especially in light of the track record of multinational
fed erations, w hose com petence allocation face frequent challenges. Since these are high
stakes, citizens and their representatives m ust be reasonably secure that their interests w ill
be consid ered and respected by other participants. Participants m u st trust that they all
seek changes in part guid ed by consid erations of legitim acy, and that none only pursue
their unbrid led national interests.
A fourth area w here trust is necessary concerns the ad jud ication of Com m unity
regulations by d om estic courts and the European Court of Justice. Citizens m ust trust the
court to interpret the legislation correctly, accord ing to the fund am ental values and
objectives of the Treaties and the Constitution al Treaty. Otherw ise citizens and officials
m ay question and even w ithhold their ow n costly com pliance.
To sum m arize, there are several im portant challenges of trust w hen seeking to
m aintain a legitim ate European political order . Europeans, both ord inary citizens and
officials, m ust have ground s for trust, that is: they m ust have m utual expectations that
m ost others w ill com ply w ith com m on law s and regulations, and that they create new
institutions and rules guid ed by a com m on com m itm ent to m aintain a fair European
ord er. We now turn to consid er how th e institution of Union Citizenship m ay be a
solution to som e of challenges.

2 The roles of institutions in facilitating trustw orthiness

One possible ju stification for Union Citizenship is as a stabilising d evise to foster, flag and
m aintain the m utual, legitim ate trust and trustw orthiness required by Europeans am ong
each other and tow ard their politicians. I first sketch m ultiple w ays that institutions can
foster trustw orthiness.25 Of particular concern is how they can enhance political trust and
trustw orthiness in a norm atively legitim ate EU am ong people w ho are ‘contingent
com pliers’. Contingent com pliers are prepared to com ply w ith com m on, fair rules as long
as they believe that others d o so as w ell, for instance out of a sense of justice. They m ay for
instance be m otivated by w hat John Raw ls called a Duty of Justice26
that they w ill com p ly w ith fair p ractices that exis t and ap p ly to them w hen
they believe that the relevant others likew ise d o their p art; and
to fu rther ju st arrangem ents not yet established , at least w hen this can be
d one w ithou t too m u ch cost to ou rselves.
EU institutions – and Union citizenship – can provid e im portant form s of assurance
am ong contingent compliers that they w ill all com ply.
The assurance problem s am ong contingent com pliers w ere ad d ressed alread y by
Rousseau .27 Recent w ork on the theory of games and research on social capital shed
further light on how institutions can bolster expectations concerning others’ actions to
affect the com plex assurance problem s that face contingent com pliers. 28
Social institutions can prom ote trust and trustw orthiness in various w ays. They can
red uce the likelihood that others d efault by shifts in the trusted ’s incentives. They can
red uce the costs of failed trust, for instance by restrictions on the scope of legal political
d ecisions by hum an rights that protect m inorities. 29

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A contingent com plier d ecid es to com ply w ith rules and institutions, and otherw ise
cooperate w ith officials’ d ecisions becau se she
A) p erceives the governm ent as tru stw orthy in m aking and enforcing
norm atively legitim ate p olicies; and
B) she has confid ence that other actors, both officials and citizens, w ill d o
their p art.
Institutions can provide assurance of at least seven relevant kind s. With regard s to the
first cond ition, perception of the governm ent pursuing norm atively legitim ate policies,
1) Civil society can foster the d evelopm ent and d issem ination of a plau sible public
political theory that provid es norm ative legitim acy by laying out and d efend ing the
objectives and norm ative stand ard s of the political ord er: d em ocracy, subsid iarity,
solid arity, and hum an rights..
2) Institutions m ust be su fficiently simple and transparent to allow assessm ent.
3) The institutions m u st be seen to be generally sufficiently effective and efficient
accord ing to the normative objectives and stand ard s.
Institutions m ay also help provid e public assurance of general com pliance.
4) Institutions can be seen to socialize ind ivid uals to be cond itional com pliers, for
instance in the ed u cational system , or in political parties that foster som ew hat
consistent and responsive policy platform s.
5) Institutions can includ e m echanism s that can be trusted to m onitor w hether the
policy or authority actually solve the problems aim ed for.
6) Institutions can provide sanctions that m od ify or reinforce citizens’ incentives, to
increase the likelihood that others w ill also com ply.
7) Institutions can includ e m echanism s that can be trusted to monitor the compliance of
citizens and authorities w ith the legal rules.

I venture that Union citizenship can play a crucial role in provid ing assurance of
the fourth kind . Reassurance am ong cond itional com pliers requires m ore than actual
com pliance by a large proportion of ind ivid uals. Each m ust also have reason to believe
that sufficiently m any others w ill continue to com ply in the future, since com pliance by
each is cond itional on the expected com pliance of others.
Institutions can socialize ind ivid uals to the Duty of Justice 30 and other relevant
norm s and virtues. When this socialization happens in pu blic institu tions, it provid es
public assurance and rem ind ers that all - or m ost - citizens – includ ing politicians - share
these norm s about w hat justice requires and w hat it m eans to be a citizen. 31 There w ould
seem to be at least tw o m ain arenas of su ch socialisiation: in the public ed ucation system s
through curriculum requirem ents, and th rough political parties.
Party contestation is crucial for socialization and preference form ation. Many
scholars point to the im portance of fed eration -w id e parties that com pete at several levels
of the m ulti-level political ord er.32 Such com petition fosters political d ebate and
form ation of public opinion about the best m eans and objectives of policies that heed and
accom m od ate the interests of both the sub-unit population and that of other Union
citizens. These d ebates allow voters to form their preferences on com plex policy issues on
the bases of alternative party platform s – all of w hich claim to be com m itted to the
interests of all m em bers of the union. They thus socialize citizens tow ard an ’overarching
loyalty’ and red uce the risk that political power w ill be used in d isregard of som e sub -
units.33

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3 A Liberal Contractualist account of Union Citizenship D uties
We now turn to consid er aspects of the content of Union citizenship d uties and virtues.
We start by sketching aspects of liberal contractualism , and then consid er w hat virtues or
d ispositions m ay and m ust institutions foster in the citizenry in order to m aintain a
norm atively legitim ate m ulti-level political ord er.
The topic of civic virtues of Union citizenship m ay seem particularly problem atic
for the liberal trad ition in political philosophy, w hich is often accused of failing to allow
political obligation even to one political com m unity. It is said by thoughtful authors to
focus on universal principles to the d isregard of particular ties to one’s ow n com m u nity. If
so, liberalism m ay end orse citizens’ acquiring the universalistic values of Art I-2 that are
found in m ost d ecent societies:
resp ect for hu m an d ignity, freed om , d em ocracy, equ ality, the ru le of law
and resp ect for hu m an rights, inclu d ing the rights of p ersons belonging to
m inorities.
These valu es are com m on to the Mem ber States in a society in w hich
p lu ralism , non-d iscrim ination, tolerance, ju stice, solid arity and equ ality
betw een w om en and m en p revail.
But w hat place and need , if any, is there for the shared European and d iverse
national values, culture, history? May Union citizens be required , as part of Union
citizenship, to learn about, respect, and even be socialized to, the facts, beliefs and values
of their ow n and each others’ ‘national culture’? And should they be m ad e to accept
fu rther values and practices of “the cultural, religious and hum anist inheritance of
Europe,… rem aining proud of their ow n national id entities and history” Does liberalism
justify socialization of the kind required for trust?
Liberal Contractualism d raw s on a fund am entally liberal, Kantian perspective
largely shared by m any others w riting in this field : that public pow er should be exercised
in w ays that can be justified to the people living und er it insofar as they share a sense of
justice, here und erstood as a highest-ord er interest in living together w ith others on term s
they could not reasonably reject.34
Contractualist theories hone this vague com m itm ent by invoking the n otion of
hypothetical consent.35 The principles of legitim acy w e should hold institutions to are
those that the affected persons w ould unanim ously consent to und er cond itions that
secure and recognise their status as appropriately free and equal, thus m anifesting "our
respect for the reasonableness of others"36. Many of the recent contributions to this
trad ition have follow ed John Raw ls in ad d ressing urgent topics of justice facing unitary
states - “sovereign states w ith central ad m inistration” 37. European integration raises
concerns beyond that focus, and requires us to d evelop aspects of fed eral political th eory
.38
I subm it that Liberal Contractualism can account of the need for Citizenship as a
stabilizing d evice that creates and sustains trust w ithin the m ultilevel political ord er,
along the lines sketched above in section 2. This conception of Union citizenship is m ore
com plex than ‘Constitutional Patriotism ’, yet d oes not require that citizens end orse all
aspects of the ‘national’ public cultures, be it the Eu ropean or that of their m em ber state.
Union citizens should not only be socialized to hum an rights and d em ocratic d ecision-
m aking, and to a variety of liberal virtues but should also share of a ‘thin’ political theory
w ith norm ative conceptions of the person and the m ulti-level political ord er. And citizens
should be acquainted w ith ‘particularistic’ aspects of Europea n culture, values and

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history. The justification is not only instrum ental, to m otivate end orsem ent of
universalistic values of I Art I-2, but also because “this is our culture”. Yet this account
d enies that a shared national id entity – at the m em ber state or European level – is
required as the m ain source of trust.

Union citizenship can help foster and secure stability of a legitim ate, m ulti-level political
ord er, by provid ing a sufficient basis for ensu ring that the legitim ate institutions end ure,
in the sense that governm ent policies, if norm atively legitim ate, enjoy general com pliance
and ad apt as necessary over tim e.39
Both legal rights and obligations, and non -legal practices and d ispositions of those
hold ing the office of citizenship are required to achieve requisite trust in general
com pliance w ith a fair political ord er. Our focus here is on the latter d ispositions and
substantive obligations of citizens that should be fostered and m aintained by institutions,
as required to m aintain a norm ative legitim ate m ulti-level political ord er over tim e. Many
illegitim ate ord ers are stable, such as d ictatorships, our question is lim ited to legitim ate
ord ers, and the stabilizing role that citizenship obligations play in m aintaining them .
What is it both necessary and perm issible to require that citizens accept or support to
ensure the requisite stability, - enforced by public pow er, be it d om estic or European? I
subm it that citizens m ust be habituated to three sets of com m itm ents. Firstly they m ust
accept and act on principles of legitim acy for the political institutions and constitutional
norm s. Second ly, beyond "Constitutional Patriotism ", Union citizens m ust share
fragm ents of a justification of the principles of legitim acy, such as offered by a conception
of the proper roles of ind ivid uals - includ ing their responsibilities as citizens – and of the
m ulti-polar European political ord er that includ es both their Mem ber State and the Union.
This ord er m ust be perceived by citizens as a com plex system of co -operation that
expresses the inhabitants' equal stand ing. Third ly, they m ust be com m itted to being
fam iliar w ith the prevailing institutions, the public political culture, and other cultural
practices, at both European and Mem ber State levels. These three com m itm ents are
required for citizens to m ake cred ible com m itm ents and ensure cond itional com pliance
w ith legitim ate European institutions. Som e clarifying com m ents are in ord er.

a) N ormative principles of legitimacy for the multi-level political order

Firstly, norm ative principles of legitim acy, d uly w orked out for m ult i-polar polities, serve
several roles in accounting for stability. One is to provid e critical stand ard s for assessing
existing, concrete institutions. Public agreem ent on stand ard s of legitim acy allow s a
public d eterm ination of w hether an existing ord er m erits com pliance by cond itional
com pliers, w hile m aintaining the possibility of a critical stance and facilitating agreem ent
on how to im prove on existing institutions and policies.

Citizens m ust be com m itted to acting on such principles. This com m itm ent to act alw ays
consistent w ith princip les d oes not provid e the sole m otivation for ind ivid uals' actions.
I take it that the values of the Union (I Art. I-2) and som e of the objectives (I Art. I-3) are
includ ed am ong such principles, especially d em ocracy, the rule of law , hum an rights,
pluralism , tolerance, ju stice, equality, solid arity and non -d iscrim ination, social ju stice and
protection, and solid arity am ong the sub-units. The challenge is not to list them , but to
specify and ord er such norm s. The elaboration of the substantive content of such
principles for the European political ord er must be provid ed elsew here.

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 One m ight argue that it is only a com m on com m itm ent to actual institutions that is
required , and not a com m itm ent to such principles. Thus And rew Mason hold s that
"liberal regim es can be sustained by a sense of belonging to them ".40 This com m itm ent to
the actual institutions d oes not seem to extend to the ind ivid uals participating in them ,
nor to a national id entity – nor to such princip les of legitim acy. In response, three rem arks.
Firstly, the interpretation of institutionalised practices is seld om uncontested , and
certainly not over tim e. Such interpretations w ill partly be m ad e and assessed by appeal
to the 'spirit of the law s', to m ore general principles, or som e other stand ard s. So even on
their ow n term s, such accounts w ould includ e som e role for shared values or id eals.
Second ly, trust in others’ future com pliance m ust rest on som ething m ore than
observation of present com pliance, thu s som ething m ore seem s need ed to provid e general
assurance that there is ind eed ‘a sense of belonging’ in the sense of a com m itm ent to
future com pliance. Such assurance is bolstered if others’ com pliance is not only a m atter
of the present acceptance of existing norm s of appropriateness, or a stalem ate betw een
factions not yet pow erful to overrule the others. A public, shared com m itm ent to
principles provid es part of such assurance am ong contingent compliers, though public
know led ge of the d ifferent reasons various people have m ay ind eed provid e sufficient
assurance. H ow ever, a third area w here assurance is need ed seem s to require com m on
ground s. In a political ord er, law s and policies m ust continually be m ad e and revised .
Ind ivid uals need assurance that others have reason to use their political pow er as
voters and politicians to further w hat they regard as just arrangem ents, and vote for law s
som etim es out of consid eration for the com m on good rather than unbrid led self interest.
Shared reasons, for instance in the form of such com m on principles, can provid e
assurance of the requisite kind am ong legislators in circum stances w hen new rules and
institutions are to be created . The requisite assurance can be fostered by w ay of publicly
shared principles, serving am ong the prem ises for ad justing and creating these new
practices, so that legislators can trust others to also seek institutions that satisfy these
principles.
Against such accounts, one m ight point to p resent d isagreem ent about conceptions
of equality and justice. And rew Mason conclu d es from the fact of d isagreem ent that
shared reasons are unnecessary, since d ifferent conceptions of these principles d o not
hind er com pliance. Citizens m ay value the sam e institutions, but not share the principles
because there are contested conceptions of the id eals of equality, justice or freedom 41.
H ow ever, the issue of trust concerns not present com pliance, bu t expectations of others'
future behaviour. Disagreem ents ind icate that future com pliance is not secure –
particularly not w hen the law s and policies change. In such circum stances ind ivid uals
m ay not be unable to appear trustw orthy, and this m ay threaten general com pliance.

b) Conceptions of citizens and of the European Political Order

Second ly in ad d ition to principles of legitim acy, citizens m u st share the im m ed iate
ground s for such principles. Liberal Contractualism w ould seek to provid e a justification
of such principles on the basis of norm ative conceptions of the ind ivid ual, of the end s of
the political unity, and a conception of the proper relationship betw een ind ivid uals and
the political ord er.

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Ind ivid uals are to be regard ed as free and equal m em bers of a system of cooperation
coercively m aintained through the use of public force. Authority is to be placed accord ing
to a Principle of Subsid iarity, d uly d efined .
Such conceptions play the equivalent role of Raw ls' w ell-know n conception of
society as a system of co-operation am ong ind ivid uals regard ed for such purposes as free
and equal participants. But that particular conception is insu fficient or inappropriate for
the European Union, regard ed as a non -unitary political ord er w ith Mem ber States and
Com m unity institutions splitting and sharing sovereignty.
Som e ind ication of stand ard s for the proper allocation of com petences betw een
sub-units and the com m on political authority m ust be provid ed – for instance in the form
of a justified specification of a Principle of Subsid iarity.42 Leaving those im portant issues
asid e, w e focu s here on the conception of citizen used to justify the principles of
legitim acy. Which virtues and d uties should citizens have – even in a political ord er
w here religious and philosophical d isagreem ents counsel extrem e caution in using public
pow er to prom ote contested virtues?

Dut y of Just ice – just ify ing t he Polit ical O bligat ion t o one’s ow n polit ical order
Liberal Contractualism follow s Raw ls and Wald ron in hold ing that citizens should be
brought up to have certain political virtues, includ ing "toleration and m utual respect, and
a sense of fairness and civility”.43 Tw o central d uties are the d uty of justice, and the d uty
of mutual respect – w hat I take Wald ron to d escribe as the ‘responsibilities of citizenship’
- inclu d ing w illing com pliance w ith norm atively legitim ate ord er, and paying appropriate
attention to the interests and view s of others.44

A central assum ption is that citizens have – i.e. should be brought to have - a sense
of justice, an effective d esire to com ply w ith existing, fair rules and to give one another
that to w hich they are entitled – “pred icated on the belief that others w ill d o their part” 45.
They com ply, that is, w ith the “Duty of Justice”.46
N ote that this Duty of Justice explains the ties to one’s ow n political ord er - insofar
as it is ju st and generally com plied w ith. This has been a concern for several critics of
‘Constititutional Patriotism ’, since it seem s that a com m itm ent only to certain principles
provid e citizens w ith insufficient bond s and allegiance to their ow n political institutions –
at the national and Union levels.47 Liberal Contractualism avoid s this alleged w eakness,
since the Duty of Ju stice requires citizens to have political obligations to their ow n just
institutions that exist and apply to them . Union citizens m u st be com m itted not only to
abstract principles, but also to the concrete institutions that em bod y these principles and
that they find them selves em bed d ed in . These institutions are specified in the
constitutions of one’s Mem ber State and of the European Union , and the political
obligation requires citizens to com ply w ith their results, nam ely concrete organisations,
law s and the central p olitical practices – insofar as they are legitim ate.
48

To illustrate: Am ong such concrete d uties m ight w ell be the d uties m entioned in the
Constitution, or those suggested by Elizabeth Meehan 49 - if they are norm atively
legitim ate. Meehan suggests the d uty to obey law ful rules, particip ate in m ilitary d efense
and pay taxes. She also includ es a d uty to be w illing to w ork, and – m ore contestible - a
d uty to vote. If such m oral or even legal d uties can be argued as necessary to sustain the
legitim ate European political ord er, they m ay be supported by the Duty of Justice. Liberal

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Contractualism m ay thus find itself in agreem ent w ith m uch of classical and recent
republicanism w hich sees politically active citizenry as necessary fo r m aintaining a ju st
political ord er.50
The d etailed d uties w ill d epend on the particulars of the citizens’ ow n institutions.

A note on the need for com pliance w ith the legitim ate political culture is required . In
ord er to exercise one’s political rights responsibly, citizens need know led ge about the
political culture, und erstood as the public practices regard ing the responsible exercise of
offices.51
Such fam iliarity and com pliance – if not full acceptance -- is need ed for full and
responsible particip ation in political institutions. Citizens m ust accept the prevalent
public political culture – insofar as it is legitim ate, at least sufficiently to und erstand the
claim s of others so as to consid er them w hen voting, and to en able others to consid er
one’s ow n concerns.52 This d uty regard ing the political culture is also supported by the
Duty of Mutual Respect.

The dut y of Mut ual Respect

The d uty of mutual respect requires that citizens
show a p erson the resp ect w hich is d u e to him as a m or al being, that is, as a
being w ith a sense of ju stice and a concep tion of the good .... Mu tu al resp ect
is show n in several w ays: in ou r w illingness to see the situ ation of others
from their p oint of view , from the p ersp ective of their concep tion of their
good ; and in ou r being p rep ared to give reasons for ou r actions w henever
the interests of others are m aterially affected ..... Thu s to resp ect another as
a m oral p erson is to try to u nd erstand his aim s and interests from his
stand p oint and to p resent him w ith consid erations that enable him to
accep t the constraints on his cond u ct. Since another w ishes, let u s su p p ose,
to regu late his actions on the basis of p rincip les to w hich all cou ld agree, he
shou ld be acqu ainted w ith the relevant facts w hich exp lain the restrictions
53
in this w ay.
Why are these shared com m itm ents to the ground s for com m on principles - conceptions
of citizens and the political ord er – necessary for stability of a legitim ate political ord er ?
One im portant reason is that this provid es a m uch need ed justification for som e such
principles over others, and allow s a critical yet argued stance tow ards one’s constitutional
trad ition, answ ering Weiler’s challenge: "H ow , then, d o w e both respect and uphold all
that is good in our constitutional trad ition and yet, at the sam e tim e, keep it and ou rselves
und er sceptical check?'. 54
In ad d ition, and central to our present concerns, is the need for assu rance. Consensus on
principles of legitim acy is insufficient to convince others of one's trustw orthiness
regard ing future com pliance w ith these proced u res. Others' present com pliance d oes not
by itself give us reason to trust that they w ill continue to respect d em ocratic proced ures --
w e also need assurance that they believe them selves to have reasons for continued
com pliance in the futu re.
Europeans also need m utual assurance w hen creating new institutions. In ord er to
secure com pliance over the long term , such changes and legal interpretations of rules
m ust be accepted as legitim ate expressions of equal respect am ong citizens of d ifferent
Mem ber States, rather than seen as d ictated by exped iency or arbitrary consensus alone.
The institutional changes and interpretations m ust therefore be seen to be guid ed by m ore
than principles of an existing constitution. Disagreem ents about the proper d ivision of

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com petences betw een Mem ber States and the Com m unity institutions, for instance, m ay
d im inish support and com pliance by citizens and governm ent officials. Politicians m ay
suspect civil servants sent to Brussels of harbouring inappropriately supranational
loyalties, d ue to loyalty shifts by the civil servants.55 Shared conceptions of the roles of
Mem ber States and the Com m unity, e.g. in the form of a suitably specified Principle of
Subsid iarity, can serve to bolster trustw orthiness and red uce such m istrust.56

c) Acquaintance w ith Local norms, cultural practices and others’

institutions
A third aspect of the Liberal Contractualist conception of citizenship is a com m itm ent to
be som ew hat fam iliar w ith the local institutions, norm s and cultural practices m aintained
by other citizens. There are several reasons to require such fam iliarity, yet not full
com pliance.
Liberal Contractualism requires that citizens are prepared , to som e extent, to
becom e acquainted w ith the various cultures and w ays of life enjoyed by fellow citizens,
as w ell as the political institutions of other Mem ber States - especially w hen urged to d o
so. This is becau se the European legal institutions and policies m ay create unforeseen
burd ensom e conflicts w ith such social practices and w ith d om estic institutions, in w ays
that can be avoid ed by creative yet legitim ate legislation or policy measures. A
w illingness to accom m od ate to others’ existing, not illegitim ate and strongly held
expectations is part of the Duty of Mutual Respect. This d uty is m ore d em and ing in a
m ulti-level political ord er w here sub-units d o not enjoy veto pow er, since citizens are
rend ered vulnerable to other Union citizens w ho live und er other institutions and w ith
d ifferent political cultu res, - and w ho therefore m ay have greater d ifficulty realizing the
im pact of com m on d ecisions. A citizen d uty to consid er the im pacts across sub -units is
therefore required to reassure all of the responsibilities of m ajority rule in these m ulti-
level political ord ers. All citizens should have som e know led ge of the m ain cu ltures that
have ad herents in the political com m unity, so as to ensure that changes respect (though
not necessarily abid e by) the im portant expectations of such groups. But such know led ge
d oes not require acquiescence in the perm anent m aintenance of su ch cultural practices
and institutions.
This d uty und oubted ly puts burd ens on citizens; ind eed , this is one reason in
support of subsid iarity 57 and for perm itting m ore econom ic inequality w ithin non -unitary
political ord ers.58
I subm it that this brief account lend s support and som e specificity to Weiler’s point about
the special challenges of the responsibilities am ong Union citizens:
We acknow led ge and resp ect d ifference, and w hat is sp ecial a nd u niqu e
abou t ou rselves as ind ivid u als and grou p s; and yet w e reach across
59
d ifferences in recognition of ou r essential hu m anity.

This account also suggests that w e interpret the Constitutional Treaty as laying d ow n
citizens’ d uties w hen it states that the Union “shall respect its rich cu ltural and linguistic
d iversity, and shall ensure that Europe's cultu ral heritage is safeguard ed and enhanced .”
(Art 3) and “shall resp ect the equality of Mem ber States before the constitution as w ell as
their national id entities, inherent in their fund am ental structures, political and
constitutional, inclusive of regional and local self-governm ent.” (Art. 5.1)

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I have sketched three m ain com ponents of d uties of Union Citizens if the institution of
citizenship is to serve as an assurance m echanism . They m ust be com m itted to principles
of legitim acy; to conceptions of citizens and citizens’ d uties, and the role of the political
ord er; and to be som ew hat acquainted w ith the w orld view s, practices and leg al
institutions of other Union citizens.

4 Alternatives and Challenges

We finally turn to consid er som e areas w here this account seem s to d iverge from the
norm ative political theories of Jürgen H aberm as and David Miller. Agree w ith Lacorne –
beyond abstract const patriotism – Lacorne 2001.

Habermas – Constitutional Patriotism

Several authors register the hope that a ‘civic d em os ‘m ust be possible, based on a
com m itm ent to a com m on constitutional order specifying proced ures for reaching
politically bind ing d ecisions. Ethnically or culturally based 'belongingness' w orries. 60
Liberal Contractualism also shares the concern to avoid ethnic or other contested bases for
social trust and as the basis of European citizenship.
Jürgen H aberm as has long argued for the need to lim it w hat citizens m ust share to
a ‘Constitutional Patriotism ’ that am ounts to constitutional rights and principles
und erstood as (som e) hum an rights and “a consensus on the proced ures for the legitim ate
enactm ent of law s and legitim ate exercise of pow er” .61 H e has m ore recently
acknow led ged that citizens m u st also accept aspects of the local, varying ‘political culture’
as a m eans to m otivate such acceptance.
This w ariness of particular cultures w ould presum ably m ake Constitutional Patriots
cautious of the Constitutional Treaty’s claim in the Pream ble, that the peoples of Europe
should rem ain “proud of their ow n national id entities and history…” Som e m ight also
suspect that the Constitutional Patriot’s vision of Europe is one of strong centralisation,
w here the Union level political ord er focuses on universalist principles, and leaves
Mem ber States w ith little authority. Leaving such issues asid e, w e focus on tw o challenges
that Constitutional Patriotism raises to Liberal Contractualism :
Why go beyond Constitutional Patriotism and require agreem ent even on
the grounds for constitutional principles? And w hy value local institutions and culture
m ore than as instrum ental m otivation enhancers for accepting universal principles?

W hy Shared Grounds for Const it ut ional Principles?

I subm it that the need for assurance und er d em ocratic interd epend ence explains w hy
Liberal Contractualism requires m ore than agreem ent to the proced ures for legislation
and constitutional change.
To illustrate, consid er Kurt Baier's notion of Constitutional Consensus.62 Baier hold s
that com m itm ent to certain constitutional rules - w hat he calls a "Constitutional
consensu s" – should su ffice for stability. All that is need ed is consensus "on the
proced ures for m aking and interpreting law and , w here that agreement is insu fficiently
d eep to end d isagreement, on th e selection of persons w hose ad ju d ication is accepted as
authoritative" (775). I take it that this is close to "Constitutional Patriotism ".
H ow ever, constitutional principles cannot provid e the m utual trust necessary for
constitutional changes, or for institutional d evelopm ent and application on the basis of

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political jud gem ent. Fund am entally com peting conceptions of the appropriate proced ures
and about the end s of the polity threaten the long -term stability of co-operation and the
ability to m ake cred ible com m itm ents. H aberm as hold s that the problem of d isintegration
can be resolved by the "conviction that d em ocratic process itself can provid e the
necessary guarantees for the social integration of an increasingly d ifferentiated society"63.
H ow ever, this claim is not obviously correct. Even though all currently accept the
d em ocratic process, trust in their future acceptance of it – and its results - w ill be greatly
enhanced by know ing their reasons. This sort of reassurance w ould require at least
know led ge about the reasons others have for accepting these d em ocratic proced ur es -
even though one m ight not share such reasons.
H aberm as him self offers certain argum ents on the basis of criteria for an id eal
speech situation that m ight und erpin such a com m itm ent to proced ures. H is argum ent is
contested , both on account of the prem ises and the argum entative steps 64, but public
know led ge that citizens end orse such argum ents t provid es som e assurance of the
requisite kind .
Assurance also requires m ore than such d ivergent argum ents for principles of legitim acy.
Current agreem ent about proced ures is insufficient, since d isagreem ent about their
justification threatens the possibility of agreeing to changes of procedures. One m ight agree
to the need for d em ocratic proced ures, and there m ay be a happy consensu s on the actual
proced ures. But w hen changes in proced ures are required , assurance m ust be provid ed
by appeal to som e other com m on ground s. Liberal Contractualism suggests such a shared
basis in the form of a thin conception of the Union Citizen and the appropriate d ivision of
labour betw een the Com m unity and Mem ber States.

W hy v alue local cult ures?- only as means for support ing univ ersal principles?
H aberm as’ d efense of particular, national – and European – culture m ay strike
som e as too functional.
They are valu able not in them selves, bu t becau se they em bod y or
im p lem ent general p rincip les of a u niversal natu re. The p articu lar featu res
of a p olitical com m u nity serve a fu nctional role, becau se u niversal
p rincip les cannot serve as the cem ent of p olitical integration u nless they are
situ ated in a historically inform ed and concrete w ay so that they can cou nt
65
as reasons for p articip ating in schem es of p olitical coop eration.
Constitutional Patriotism appears not to valu e existing institutions and particular cultural
practices - even those w ithin the constraints of justice - sim ply because they’re ‘ours’, but
only because they m otivate acceptance of universal principles. What gives them value is
not their particularity, but their m otivational role for the constitutional principles that on
their ow n lack ‘d riving force’.66 If this is all that can be said , it is d ifficult to und erstand
w hy these cultures have any claim to be respected and protected , rather than to be, say,
slow ly transform ed into a com m on culture shared by all Europeans. This is of course not
an objection, but only an im plication; the point here is to clarify how Liberal
Contractualism d iffers.

Firstly, w e can note that there m ay be further instrum ental reasons for shared history and
particular practices am ong Europeans, based on consid erations of trust 67:
H istory - includ ing the intentional build ing of ‘collective m em ories’68 -

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1) helps convey the long-stand ing m utual d ep end ence am ong Europeans that und erscores
the need for assurance m echanism ;
2) help s specify the not illegitim ate expectations other Europeans have form ed about the
future actions of European agents, -- the various norm s of appropriateness - as
explications of Europeans sharing a ‘com m on fate’69; and
3) can bolster – or prevent – the reputation of institutions and politicians as
trustw orthy. Am ong the m ore recent historical events relevant in the European setting are
the Com m ission resignation, the reactions against Austria, and t he hand ling of Mad cow
d isease.70
Liberal Contractualism also provid es argum ents for w hy existing institutions and the
political culture have value, and that it m atters, norm atively, that they are ours. The point
w as m ad e above: w hen justifying political obligation, w e d o so on the basis of the d uty of
justice, by appeal not only to the ‘abstract principles’, but also by show ing that a particular
set of institutions d oes in fact exist – that their rules are publicly know n and generally
com plied w ith – and that these rules apply to us. One relevant prem ise is, thu s, that these
institutions and practices are ind eed ours. This com m itm ent to existing practices requires
a broad range of knowled ge about the central, legitim ate expectations of citizens affected
by the com m on institutions 71.

D avid Miller – N ationality required for solidarity, requires unique

characteristics
David Miller’s account of citizenship focuses, as d oes Liberal Contractualism , on the role
of trust, assurance and stability.72 H ow ever, he d efend s the need for a shared national
id entity w ith further substantive norm s, beliefs or com m itm ents – a m ore substantive
com m on public cu lture. This m ay require “non-neutrality w here the national culture itself
is at stake.” The national public culture m u st have substantive norm s that serve to set
m em bers off from other peoples and has a unifying function:
When I say that national d ifferences m u st be natu ral ones, I m ean that the
p eop le w ho com p ose a nation m u st believe that there is som ethin g
d istinctive abou t them selves that m arks them off from other nations, over
and above the fact of sharing com m on institu tions. This need s not be one
sp ecific trait or qu ality, bu t can be a range of characteristics w hich are
generally shared by the m em bers of nation A and serve to d ifferentiate
them from ou tsid ers.
….
These five elem ents together -- a com m u nity constitu ted by m u tu al belief,
extend ed in history, active in character, connected to a p articu lar territory,
and thou ght to be m arked off from other com m u nities by its m em bers'
d istinct traits -- serve to d istingu ish nationality from other collective
73
sou rces of p ersonal id entity.

Miller hold s that such a national allegiance is required to d evelop the appropriate
responsible citizenship , and to m aintain the trust required for solid aristic arrangem ents
characteristic of European w elfare states.
The problem atic aspects of Miller’s notion of national id entity is not that it is
essentialist or static. To the contrary, he notes that it is m alleable 74, and can be p urged of
elem ents that exclud e m inorities on the territory. H e also interestingly notes that there
can be nested nationalities, citing the Scottish and British nationalities. 75 Still, w hile Miller
is in principle open to the d evelopm ent of a European id entity 76, he is skeptical of the

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prospects of maintaining pan-European w elfare regim es d ue to the lack of a substantive
national id entity am ong Europeans.
Leaving d etailed criticism s asid e, w e consid er som e points w here Liberal
Contractualism d iffers from Miller’s account. 77

Substantive socialization
Socialization to citizenship requires, on Miller’s view , that all share the particularistic
norm s and beliefs of the relevant nationality. In particular he seem s to hold that the
requisite social trust for social insurance schem es requires m ore in the w ay of shared
national culture than liberalism perm its. Yet he d oes not specify w hat this shared public
culture crucially consists in. It includ es a constitution, and p resum ably civic nationalism
"in the sense that each acknow led ges the authority of a com m on set of law s and political
institutions.” 78 but certainly m ore - “a d ense w eb of custom s, practices, im plicit
und erstand ings, and so forth." “w here som e cultural feature -- a land scape, a m usical
trad ition, a language -- has becom e a com ponent part of national id entity, it is justifiable
to d iscrim inate in its favour if the need arises.” 79 This w ould ap pear to includ e the
prom otion of a religion th rough the school system .80 H ow ever, it is d ifficult to get a
precise sense of w hat he w ould includ e in the national id entity beyond shared
institutions. One reason m ay be that it is for the particular set of ind iv id uals to d eterm ine
the content of the national id entity.81
The role of this shared national public culture is to facilitate trust, apparently of the
kind need ed in assurance gam es.82
Miller’s account can be questioned on several ground s 83, but here w e focus on the
point that Miller d ism isses other sources of solid arity too quickly. Stable red istributive
arrangem ents that require trust need not draw on nationalism of the kind Miller suggests.
What seem s required are shared institutionalised practices am ong citizens w ith som e
public, com m on political virtue, m aintained by institut ions crafted to provid e the requisite
reassurance. The Liberal Contractualist strategy sketched above requires agreem ent on
certain principles, and on their im m ed iate justification sufficient to ensure shared
interpretation, application and stable com plian ce, all the w hile w ithout controversial
m etaphysical assum ptions or contested view s about the proper end s of hum ans. I take
John Raw ls, Jürgen H aberm as, and other liberal theorists to contribute to such projects.
On such accounts the institutions need not build on ind ivid uals’ shared norm s of
solid arity, existing prior to and outsid e of the institutions in civil society and associations.
Instead , or in ad d ition, institutions can also establish and m ainta in such princip les and
virtues.84

Exclusionary
Miller’s conception of national id entity requires that this com m on public culture has
characteristics sets the m em bers apart from non -m em bers. N ational d ivisions m u st be
conceived as natural ones; “they m ust correspond to w hat are taken to be real d ifferences
betw een peoples.” 85. It is not clear w hy this is necessary for provid ing assurance, except
perhaps to help id entify outsid e free rid ers. And Miller’s d iscu ssion of nested nationalities
w ould seem to require changes in this d efinition, since he agrees that “it is p ossible to
have a sm aller nationality nesting w ithin a larger on e” 86. Leaving such issues asid e, the
im plications w ould seem d ire for the d evelopm ent of European Citizenship. There are no

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obvious and attractive values accepted only by Eur opeans yet acceptable as legitim ate
87
com m on ground s .
In contrast, Liberal Contractualism d oes not seek values at the level of abstract
principles and id eals that are unique to one's ow n com m unity.88 The principles - and
ind eed the political theory - need not be unique to Europeans. The role of shared
com m itm ents is to ensure stability in the sense of com pliance w ith existing institutions,
and appropriate ad justm ent of institutions and constitutions. The fact that other just
institutions exist elsew here, or that they m ight be som ew hat m ore just d oes not by itself
generate a d uty on citizens’ part to abid e by them . The concern is to ensure general
com pliance am ong citizens, not to set them apart or exclud e anyone else. This ap proach
also recognises the need to be able to id entify and exclud e non -com p liers or free rid ers,
and possibly to restrict access to costly red istributive arrangem ents, but there seem s little
reason to d o so on the basis of acceptance of a national public cultu re.

Pessimism regarding a Fair Europe

Miller’s account lead s to a particular skepticism regard ing the possibility of a stable, fa ir
Europe, at least insofar as it involves red istributive arrangem ents across populations of
89
d ifferent nationalities. Such arrangem ents w ould require that som eone created and
m aintained a shared ‘European’ nationality to sustain the institutions. Such a shared
national id entity is beyond w hat exists – and is likely to exist (though possible – cf. Miller
1995, 159). Miller’s account of Union citizenship thus lead s to pessim ism concerning
w hether it is possible to achieve the Union objective to “prom ote econom ic, social and
territorial cohesion, and solid arity am ong Mem ber States” (Art I-3). Support for such
arrangem ents w ould have to draw on a European national allegiance, w hich Miller hold s
could not w ithstand critical scrutiny 90. Furtherm ore, the d eliberate creation of such an
id entity w ould be risky, since m any national id entities are not supportive of just
institutions at all. Many w arn against m any versions of such a national id entity at the
European level – ind eed , som e m aintain that national id entities is exactly w hat the EU
prom ises d eliverance from .91
Ind eed , Miller notes that m any regard any notion of a “European” national id entity
as backw ard . A Pan-European ‘national’ id entity m ight w ell be a cure w orse than the
d isease.
Liberal Contractualism , in contrast, hold s that Miller's d ire expectations for
European red istributive arrangem ent are too hasty. This is not to say that tim e m ay not
prove him right, for instance d ue to co-ord ination trap s.92 But the ground s Miller offers for
his pessim ism are insu fficient. A European national id entity of the kind Miller d eem s
need ed m ay be unw ise and beyond reach, but just European red istributive institutions
am ong Union citizens w ith a sense of justice m ay still secure the requisite assurance.
These rem arks have sought to clarify how Liberal Contractualist account of Union
citizenship stand s in com parison to the theories of H aberm as and Miller, on som e issues
pertinent to the claim s m ad e in the Constitution al Treaty regard ing shared European
values and the respect d ue existing national cultures and institutions. I have also
suggested that som e pessim ism regard ing a future Fair Europe is prem ature; for
institutions m ay foster Union citizens and sufficient assur ance am ong them .

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Conclusions: Union Citizenship and Prospects for the EU
The present reflections have focussed on the role of som e notion of Union Citizenship in
securing trustw orthiness, stable com pliance and w illing support am ong Europeans for
European institutions and practices. Such perceived need s seem to have fuelled the call
for Union citizenship in the first place.
Union Citizenship m ay w ell have been introd uced to enhance trust am ong
Europeans am ong them selves and tow ard s those w ho govern Europe. One w ay it d oes
this is by d raw ing on and fostering only a very lim ited set of shared values and objectives,
far less than that historically aim ed for in European nation states. A lim ited norm ative
basis is regard ed as possible partly because Liberal Contractualism - as som e other
political theories - postulate a d ifferent fund am ental m otivation for ind ivid uals'
com pliance than 'sentim ents of affinity', nam ely a sense of justice.
Liberal Contractualism , as several other theories, assum es that institutio ns can
socialise ind ivid uals into a "sense of justice". A central challenge is to ensure that national
and EU institutions are "fram ed so as to encourage the virtue of justice in those w ho take
part in them "93, so that ind ivid uals can com e to see them selves as free and equal
participants in a joint European schem e of co-operation that com m and s the w illing
com pliance of m ost Eu ropeans.
The d evelopm ent of the requisite European sense of com m onality m ight be a
d ynam ic process. Com m on institutions – particularly that of citizenship , and enhanced
political arenas for public contestation am ong political parties, and opportunities for
European party fam ilies - can help create Union citizens, policies and sufficient
m onitoring to build trust.94 Institutions m ust facilitate the shared com m unication and
com m itm ents necessary for legitim ate m ajority rule 95, and m ay be cru cial for creating and
confirm ing the appropriate w ill to live together .96 The constructive potential of institutions
in shaping perceptions, id eas, preferences and options suggests that pessim ism on the
basis of current absence of trust is prem ature.
The civic virtues of Union citizens should not only includ e a com m itm ent to
som e very general principles of justice, or to abstract constitutional principles. Acting on
a sense of ju stice entails interacting in our d ay -to-d ay lives w ith other ind ivid uals, in
accord ance w ith their legitim ate expectations about our behaviour, honouring their trust
in our responses. The account above accepts an account of the practices one is em bed d ed
in as a part of, but only one part of, a full justification of the institutions. Citizens’ sense of
justice includ es a com m itm ent to honour the legitim ate expectations of other citizens, on
the basis of shared principles of legitim acy and a shared und erstand ing of the appropriate
relations betw een ind ivid uals and the European m ulti-polar polity uniting them .
I have not claim ed that there is present agr eem ent on any of these com ponents of Union
citizenship, nor that political philosophy shou ld aim to provid e answ ers that replace the
need for d em ocratic d eliberation on such issu es. To the contrary: the contribution of
political philosophy is rather to the d em ocratic d ebate, suggesting w hat it should be
about. Liberal Contractualism suggests that agreem ent on all these three com ponents
seem necessary to m aintain a m axim ally stable and legitim ate European ord er, and that
d em ocratic d eliberation in Europe should have such agreem ent as a publicly stated
objective.
Union Citizenship m ay facilitate th is trust, yet it m ay backfire and fail to provid e
the d esired sup port for existing institutions. Talk of ‘citizenship’ highlights the questions

- 19 -
of the norm ative authority and trustw orthiness of Union institutions. Why, if at all, should
ind ivid uals and officials regard Com m unity regulations as m orally bind ing on their
cond uct, im posing on them a m oral obligation to com ply? The response m ust show how
the offices and in stitutions of the European Union satisfy the norm ative stand ard s
befitting a m ulti-level political ord er am ong equals.
Insofar as the Constitution fails to satisfy such criteria of legitim acy in public
scrutiny, the focus on Union Citizenship m ay serve to red uce, rather than enhance the
support and trust Europeans exhibit tow ard s each other – because their com m on
institutions are consid ered illegitim ate, hence not the subject of political obligation . Recall
that Cond itional com pliance rests on stand ard s of legitim acy that, if unfulfilled , m ay
d estabilise rather than consolid ate the European political ord er.
Talk of citizenship m ay thus increase m istrust, rather than ind uce support. This
should com e as no surprise: governm ents have often d iscovered that citizenship rights
have "the potential for exacerbating, as w ell as d im inishing the conflict of classes"
(Good in 1988). Ju st to m ention som e challenges: Introd ucing citizenship rights only for
citizens of Mem ber States im m ed iately highlights the plight of permanently resid ent non -
nationals.97 The introd uction of Union Citizenship also introd uces fund am ental
inconsistencies in cu rrent citizenship practice both w ithin m any states and w ithin the
European Union as a w hole.98
More fund am entally, the institutions m ay not enjoy sufficient trust to prom ote long
term com m itm ents. In particular, there are insufficient arenas for political d eliberation
and preference form ation in Europe at present. Others' com m itm ent to the com m on
European w eal seem s required , but not yet secured . I subm it that this is one w ay to
und erstand Dieter Grim m 's concern about the present absence of a European public
sphere and other prerequisites for d em ocratic rule – especially m ajoritarian
arrangem ents 99. Institutions m ust face the d ouble challenge of econom ising on trust w hile
at the sam e tim e fostering the m eans for cred ible com m itm ents am ong Europeans. For
such reasons, m ajority rule m ay best be introd uced only grad ually -- as w e ind eed w itness
in the successive treaties.
The response to this risk is surely not that the norm ative political id eals and
stand ard s of d em ocratic governance should be scrapped . This w ould run counter to the
trad itional critical function of norm ative political theory in the Western trad ition. Rather,
the introd uction of Union citizenship should bolster d em and s for institutional red esign
and further d evelopment of the necessary public arenas, so as to secure continued , w illing
com pliance w ith these coercive institutions. Such p olitical craftsm anship m u st rest on
aw areness of not only the scope, but also the prerequisites and lim its to institutional
red esign.100 It rem ains to be seen w hether there is political w ill and resources for such
changes – in the w ake of the Constitution Treaty. Only better institutions, visibly securing
a just and d em ocratically responsive political ord er am ong citizens com m itted to a fair
Europe, can secure long term tru st am ong Union Citizens.

- 20 -
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1
Research for this p ap er w as fu nd ed by the EU TSER p rogram (SOE 2973056) on Eu rop ean Citizenship and
the Social and Political Integration of the Eu rop ean Union, and by the Fulbright “N ew Centu ry Scholar”

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Program . I am also gratefu l to the Mind a d e Gu nzberg Center for Eu rop ean Stu d ies, the Ed m ond J. Safra
Center for Ethics, and Barbara and William Graham , Joe Bad aracco, Patricia O’Brien and Patricia Pep p er at
H arvard University, w here m u ch of the research w as carried ou t.
The p ap er benefited from d iscu ssions at the Rou nd table on "Eu rop ean Citizenship " at the World Congress
of Philosop hy, Boston 1998. I am also thankfu l for constru ctive conversations and corresp ond ence w ith
Stefan Gosep ath, Jos d e Beu s, Carlos Closa, Pablo De Greiff, John Erik Fossu m , N eil MacCorm ick, José Lu is
Martí, Johan P. Olsen and Ulf Sverd ru p .
2
ind eed , som e hold that they w ere already part of acquis communaitaire before Maastricht... (La Torre 1998. Cf.
Meehan 1993, Wiener 1997.
3
Other answ ers, largely com p lem entary to this, inclu d e Meehan 1993, and a w ell grou nd ed historical
accou nt cf. Wiener 1997.
4
The inclusion of Union Citizenship in the EC Treaty apparently came from a Memorandum from the Spanish
Government presented to the Intergovernmental Conference on Political Union in 1990. (Shaw 1997a), Weiler 1996.
The Commission also claimed in Opinion October 21 1990 that a European citizenship was necessary to strengthen
democratic legitimacy. Cf. Closa 1992.
5
Preu ss 1995, Laffan 1996. Weiler 1996.
6
For instance the right to elect Mem bers to Eu rop ean Parliam ent (Art. I-20.2; I-46) w hich in tu rn elects
Com m ision Presid ent (Art. I-27) and can censu re the Com m ission; the p ow ers of the Eu rop ean Cou ncil (Art.
I-22), and Cou ncil of Ministers (I Art. I-23) enjoyed by accou ntable governm ent officials of the Mem ber
States; and throu gh the role of national p arliam ents to ap p ly the Pr incip le of Su bsid iarity (Protocol 2), and
p rotections against one’s governm ent breach of the valu es of the Union, Art. I-2 (Art I-59).
“Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be su bject to the d u ties
7

im p osed thereby.” EC Treaty Art 17.2, cf. Laffan 1996, Shaw 1997b, Bau bock 1999, 38.
8
Deu tsch et al. 1957, 5.
9
MacCormick 1997, cf. Weiler 1996, Guild 1996,
10
Follesd al 2005b.
11
Lem co 1991, Franck 1968, Linz 1999, McKay 2001, McKay 2004, Sim eon and Conw ay 2001, Filip p ov,
Ord eshook, and Shvetsova 2004; N orm an 1994, Step an 1999.
12
H u m e [1754] 1882, MacCorm ick 1995,
13
Majone 1998, 103; Moravcsik 1998. Thou gh third p arty enforcem ent m ay not be requ ired , cf. Ostrom 1991.
14
Scharp f 1997a , Pierson 1998.
15
cf. Mad ison 1961.
16
Good in 1996, 340.
17
N icolaid is 2001, 454.
18
Taylor 1969, Barry 1991.
19
Scharp f 1997a, 21.
20
Weiler and Mayer 1995.
21
Wessels 1999, 268.
22
Weiler 2001, 69.
23
as rep orted by Egeberg 1999, Egeberg and Trond al 1999, Trond al 2000.
24
Maced o 1990.
For a m ore d etailed accou nt that d raw s on Margaret Levi’s help fu l d iscu ssions, cf . Follesd al 2005a.
25

26
Raw ls 1971, 336 and cf. Scanlon 1998, 339.
27
Rou sseau [1762] 1978, 2.4.5, Mad ison 1787.
28
Sen 1967, Taylor 1987, Elster 1989, 187; Ostrom 1991, Scharp f 1997b, Rothstein 1998; Levi 1998a. Recent
norm ative contribu tions ad d ressing the stand ard s of norm ative legitim acy on the exp licit assu m p tion of
su ch contingent com p liance inclu d e Raw ls 1971, Good in 1992, Thom p son and Gu tm ann 1996, 72-73; Miller
2000. For Social Cap ital, cf. Lou ry 1977; Colem an 1990 ch 8; Pu tnam 1993; Pu tnam 1995; Levi 1998b; N ew ton
1999.
I here m od ify Margaret Levi’s m od el of contingent consent (Levi 1998a, ch. 2; Levi 1998aBraithw aite and
29

Levi 1998.). See also Good in 1992.

w hich Margaret Levi calls ‘ethical recip rocity’, "a norm requ iring that ind ivid u als in a given p op u lation
30

coop erate w ith governm ent d em and s bu t only as long as others are also contribu ting.” (24-25)
31
Perhap s ind ivid u als shou ld be socialised so that their p ercep tions and p references m ake certain behaviou r
– com p liance or cond itional com p liance w ith legitim ate ru les - seem obviou s and ap p rop riate, or is sim p ly
taken for granted , rather than basing actions on calcu lation (Stinchcom be 1986, March and Sim on [58] 1993).

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These featu res have been exp lored by "N ew Institu tionalism " (March and Olsen 1989), honing insights
fou nd am ong au thors as d ifferent as Aristotle, J.-J. Rou sseau , J. S. Mill and John Raw ls (Rou sseau [1772]
1972, 4; Rou sseau [1762] 1993; Mill [1873] 1969, 139; Mill [1861] 1958 ch. 3; Mill [1869] 1970, 23; Raw ls 1971).
For instance, institu tions can foster com p liance by generating and enabling w hat Law rence C. Becker ca lls
"noncognitive" tru st, a sense of secu rity abou t others benevolence and com p liance that is not focu ssed on
sp ecific p eop le or institu tions, nor a m atter of consciou s strategic choice (Becker 1996).
32
Cf. Linz 1999.
33
Linz 1999.
34
Scanlon 1982, 116; Scanlon 1998; Barry 1989, 8.
35
O'N eill 1989.
36
Maced o 1990.
37
Raw ls 1993, xxii.
38
cf. Follesd al [2003] 2003.
39
cf. Chou d hry 2001, 383.
40
Mason 1999, 279.
41
Mason 1999, 281.
42
Su bsid iarity is stated and sp ecified in the Constitu tional Treaty, Art 11.1 and in a p rotocol. Cf. Follesd al
1998 for a d etailed d iscu ssion of p lau sible versions of ‘su bsid iarity’.
43
Raw ls 1971:122.
44
Wald ron 2000.
45
Raw ls 1971: 336, 505, 567.
For an elaboration and d efense, cf. Wald ron 1993 and his d iscu ssion of the “Du ty of Civic Particip ation”,
46

Wald ron 2000; and T. M. Scanlon’s Princip le of Established Practices (Scanlon 1998, 339). Becker's notion of
'conscientiou sness' (Becker 1996, 56) ap p ears to be sim ilar.
47
Kym licka and N orm an 1994.
48
I believe sim ilar interp retations are p ossible regard ing Jü rgen H aberm as' claim that Constitutional
Patriotism is a su fficient com m on base. While Liberal Contractu alism d iffers from Constitu tional Patriotism
in w ays exp lored above and below , they share a focu s on the constitu tional ord er H aberm as [92] 1996, 500;
H aberm as 1990, 257), and seek to m inim ise the reliance on contested valu es in resp onse to the challenge of
p lu ralism (H aberm as [93] 1998, 225; cf. H aberm as 1997, 118 and H aberm as 1992, 16). For an exp loration of
this accou nt, cf. De Greiff 2000?). I d o not d eny that alternative interp retations of H aberm as se em s p ossible,
eg. w hen he w rites that the requ isite "id entity of a p olitical com m u nity, w hich m ay not be tou ched by
im m igration, d ep end s primarily u p on the constitu tional p rincip les rooted in a p olitical cu ltu re and not u p on
an ethical cu ltu ral form of life as a w hole." (H aberm as 1992, 17, m y em p hasis).
49
Meehan 1993, cf. fru itfu l d iscu ssion in Shaw 1997a.
50
(cf. Raw ls 2001.
Cf “Labord e 2002.
51

The p u blic p olitical cu ltu re is of cou rse often u nd u ly skew ed in favou r of a m ajority’s broad er cu ltu re.
52

Insofar as this hind ers the resp onsible exercise of the office of citizenship , the d u ty of ju stice d oes not
requ ire acqu iescence - bu t rather efforts to change this p olitical cu ltu re.
53
Raw ls 1971, 337-8; cf Wald ron.
54
(Weiler 2001, 65.
55
Trond al and Veggeland 2000.
56
Follesd al 1998.
57
Cf. Follesd al 1998.
58
Cf. Follesd al 2001.
59
Weiler 2001, 66.
60 Cf. Ackerm an 1980, 69ff.; Preu ss 1996, 275; MacCorm ick 1996, 150; MacCorm ick 1997, 341.
61 H aberm as [93] 1998, 225.
62
Baier 1989.
63
H aberm as 1998, 133.
64
Cf. Olafson 1990, H eath 1995, Larm ore 1996, 205-21.
65
Chou d hry 1999, 393.
66
Cf. Labord e 2002 for another exp ression of this.
67
For references and d iscu ssion, cf. Follesd al 2000, Follesd al 2004
68
Rothstein 1999?

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69
cf. Breton 1995
70
cf. Lacom e 1999 in N icolaid is and H ow se 2001; Follesd al 2002.
71
Gu nsteren 1988, 736.
72
Eg Miller 2000, 86.
73
Miller 2000, 30-31.
74
Miller 2000, 35,
75
cf. Follesd al 2000.
76
1995, 159.
I leave asid e several top ics of alleged d isagreem ent betw een Miller’s rep u blicanism and Raw lsian Political
77

Liberalism , w hich he som etim es criticizes u nd er the label ‘liberalism ’ in Miller 1995, Miller 2000.
78
Miller 1995, 190.
79
1995, 41 and 195.
80
1995, 195.
81
Miller 2000, 34. Thou gh he seem s to allow shared religion as a com p onent (Miller 1995, 19).
82
Miller 2000, 31-32.
83
for instance that insofar as there are d eep id eological d isagreem ents concerning the d istribu tive
requ irem ents em bed d ed in the national id entity – for instance betw een social d em ocrats and Tories – it
rem ains u nclear w hether there is ind eed one national id entity “that bind s these p arties together” (2000, 33).
84
Su ch claim s are exp lored by Levi and Rothstein.
85
Miller 1994: 140.
86
2000, 185, n.26.
87
Closa 1998, 425, Bau bock 1997; and N orm an 1995.
88
p ace Miller 1995, Tam ir 1993.
89
For d iscu ssion of d istribu tive requ irem ents am ong su b -u nits, cf. Follesd al 2001.
90
Miller 2000, 26.
91
Delanty 1995.
92
Scharp f 1988, Scharp f 1999.
93
Raw ls 1971, p . 261.
94
Preu ss 1995, 277-78; Streeck 1996; fn64 and 74; cf. Pu tnam 1993, 184; Raw ls 1999, 112; Follesd al and H ix
2005- 2005.
95
H aberm as [95] 1998, MacCorm ick 1997, 353.
96
Preu ss 1996.
97
Follesd al 1999.
98
Bau bock 1994, 220; Meehan 1993, Wiener 1997, Follesd al 1999.
99
Grim m 1995, 293-94.
100
Olsen 2000 and Joerges, Mény, and Weiler 2000 generally.

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