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