therefore suggest to include the constitutional referendum only for the provisions that are currently
proposed in the first part of the draft constitution. In Section 4, we discuss two additional institutional
proposals. The first contains a statutory and a general initiative at the EU level. The second is a fiscal
referendum for financially important EU projects. Concluding remarks follow in Section 5.
2 The Pros and Cons of an Introduction of Referenda and Initiatives at the EU Level
2.1 The Necessity for Controlling Representatives at the Constitutional Level
In De Republica, one of his main political texts, Cicero (59 B.C., 1988) defines three forms of gov-
ernment: Democracy as the rule of the people or the ‘many’, monarchy as the rule of a single princi-
pal, and aristocracy as the rule of an elite. By replicating the famous Aristotelian arguments (Politika
III 8, 1280a2), Cicero argues that aristocracy, which he called the rule of the ‘optimates’, is the
preferred way of government. Describing the time when Servius assumed power in Rome, he wrote
that Servius “divided the people into property classes and constructed a voting system that gave the
greatest number of votes to the rich and thus put into effect the principle which always ought to be
adhered to in the commonwealth, that the greatest number should not have the greatest power.”
(Cicero 59 B.C., 1988, p. 149; quoted according to Gordon 1999, p. 112). Government by the
people in these days meant government by a minority of property owners. In contrast to that, Cicero
defined ‘government by the masses’ as an abortive development of the rule of the people, in the
same way as dictatorship was defined being an unfavourable development of monarchy and oligar-
chy being a mutation of aristocracy. Government by the masses was called ‘ochlocracy’.
This Aristotelian notion was already challenged during the Ancient World and later in the Middle
Ages by philosophical contract theory. But it took until Enlightenment and the contributions by Hob-
bes, Locke, Rousseau and Kant that contract theory was fully developed as a justification for states
(Hoffe 1999, pp. 48). Rejecting any organic normative justification of the state, like the divine right of
kings or natural law, political legitimacy is derived from a particular individual contract that is found-
ing the law and the state. In a contractarian reconstruction of constitutions, the single human being
(homo singularis) is the fundamental and decisive point of reference: What set of political rules
benefits the greatest number of individuals in a group?4 In a Hobbesian initial situation, individuals are
free to do what they want to. They are not restricted by any coercion from other individuals or state-
like organisations. In the absence of state-like organisations, selfish individuals have however incen-
tives to attempt at expropriating their fellow citizens which leads to the emergence of conflict. Bu-
chanan (1975, p. 12) states the problem: “The issue is one of defining limits, and anarchy works only
to the extent that limits among persons are either implicitly accepted by all or are imposed and en-
forced by some authority.” In that situation, rational individuals will voluntarily subordinate to the law
and to a coercive power, the state, that enforces the law, because it entails mutual benefits as com-
pared to anarchy: Individual conflicts are resolved by an impartial third party such that individual
property rights are secured to the largest possible extent. In addition, this newly created state helps
to organise and enforce individual co-operation in the provision of collective goods that are as well to
4. For a comprehensive analysis of the contractarian approach to constitutions see Buchanan (1975, p. 5).