Theoretical Foundations of Public Participation Conference on Environmental Democracy Pázmány Péter Catholic University, Budapest 19 October 2012 Gerd Winter Research Center for European Environmental Law University of Bremen

Focus and Overview Focus on administration, excluding legislation and judiciary Problems of designing public participation Theoretical backgrounds for public participation Choosing a theory and deriving solutions for best design Theories of public participation in supra-, inter- and transnational arenas (in the written paper)

Problems of design Role of participants: lay persons or experts? Standing to participate: only those individually concerned? Information discussed: of individual or general concern? Public hearing: at all? Let off steam? Fact finding in contradictory procedure? rational discourse? Preclusion of objections: tight deadlines, high substantiation requirements,strict preclusion? Court review of procedural failure: –Standing only for concerned persons? –Relevant only if without failure another result expected?

Theoretical backgrounds for public participation Conceptions (ideal types) Enlightened autocracy Socialist popular democracy Rule of law Deliberative democracy Mediation, cooperative administration Direct democracy

Theoretical backgrounds for public participation Each theory to be characterised Nature of administration Legitimation Nature of participation Construction of the citizen (political anthropology) Real world examples Background theory of state

Enlightened autocracy Administrative bodies best guardians of public interest Legitimation by –tradition, –Usurpation (forged elections) –merit (output) Participants as informants, instrumental for investigation; make protesters accept decision Citizen as layperson Examples: Europe in times of absolutism, aggressive capitalism, fascism, postcolonial states, postsocialist states Background theories: –absolutism (Hobbes, Hegel) –Theories of modern autocracies –Modern systems theory

Socialist popular democracy Administrative bodies best guardians of public interest Legitimation by popular democracy Participation unwelcome if critical, or instrumental for investigation and evaluation Citizen as object of education; later as part of societal organisations Examples: Europe in times of ‚real socialism‘; maybe China of today Background theories –Theory of intelligentsia as avantgarde (Lenin) –Identity theory (Karl Polak)

Rule of law Administrative bodies implementing the parliamentary law verifying compatibility with individual rights Legitimation by representative democracy; no further legitimation needed for administration Participation –Right to be heard before adverse decision (dualist situation) –development to participation of the ‚concerned‘ public in multipolar situations Citizen as holder of individual rights of health and property (‚bourgeois‘) Examples: Legislation of EU and many MS Background theories: –State serving freedom and property, representative, not direct democracy (Locke) –Theory of separation of powers (Montesquieu)

Deliberative democracy Administrative bodies more than executive; discretionary margins within parliamentary laws Legitimation by representative parliament and public sphere Participants involved in multipolar discourse; aim not acceptance but acceptability of decision Citizen as ‚Bürger‘, citoyen; able to be concerned about public interest, and to acquire technical expertise Examples: Some legislation of EU and MS; product authorisation, dangerous installations Background theories: –Integration; citizenship as profession (‚Beruf‘) (Rudolf Smend) –Deliberation (Jürgen Habermas, Charles Sabel)

Mediation; cooperative administration Administrative bodies mediating between stakeholders Legitimation by absence of power Participants in process of compatibilisation of fragmented views, knowledge and interests Citizen as negotiator German mediation law; contractual nature protection; contractual city planning Background theories –Postmodern state (Karl-Heinz Ladeur) –Corporatist state (Phillipe Schmitter)

Direct democracy Administrative decision by the citizens if they take the initiative Legitimation by the people Participation of constituency of administrative body (commune, Canton, federation) Citizen as Bürger, citoyen; able to acquire technical expertise and transcend individual concerns Examples: Switzerland Background theories –Directly democratic state (J.-J. Rousseau, French commune)

What theory is appropriate? Constitutional considerations Minimum standard ‚rule of law‘ Enlightened autocracy: incompatible Socialist popular democracy: incompatible Deliberative democracy: see German controversy –Constitutional Court: Basis in fundamental rights; fear of undermining the parliamentary command –However: Administrative discretion asks for additional legitimation Mediation, cooperative administration: risk of capture by powerful interests Direct democracy: deserves further consideration

Deriving solutions from ‚deliberative democracy‘ Role of participants: procuring lay-knowledge as well as expert knowledge Standing to participate: not only bourgeois but also Bürger (citoyen) Range of issues heard: beyond individual concerns; especially: question of need and alternatives Public hearing: important forum of oral communication; contradictory procedure of collecting facts plus normative discourse Preclusion of issues: in principle acceptable, but substantiation requirement to be handled generously; administration and courts to treat precluded objections if essential and in the public interest Court review of procedural failure: –standing also for general public –relevance of failure already if (concrete) possibility of different outcome