The Constitutionalization of the European Union: Explaining the 
Parliamentarization and Institutionalization of Human Rights

Berthold Rittberger
Frank Schimmelfennig


Paper prepared for EUSA Ninth Biennial International Conference 
Austin, 31 March – 2 April 2005


Berthold Rittberger			Frank Schimmelfennig
University of Kaiserslautern		University of Mannheim
67663 Kaiserslautern, Germany		68131 Mannheim, Germany
++49-631-205-2013 (phone)		++49-621-181-2813 (phone), -2845 (fax)
rittberg@rhrk.uni-kl.de			frank.schimmelfennig@mzes.uni-mannheim.de


Abstract
Parliamentarization and the institutionalization of human rights are two processes of 
constitutionalization in the EU that constitute a puzzle for explanations inspired by 
both rationalist and constructivist institutionalism. We propose to analyze these 
processes as strategic action in a community environment: Community actors use the 
liberal democratic identity, values and norms that constitute the EU’s ethos 
strategically to put social and moral pressure on those community members that 
oppose the constitutionalization of the EU. Theoretically, this process will be most 
effective under conditions of high salience, legitimacy, publicity and resonance. In a 
Qualitative Comparative Analysis (QCA) of the EU’s constitutional decisions from 
1951 to 2004, we show salience to be the by far most relevant condition of 
constitutionalization in the EU.


Introduction
The development of representative parliamentary institutions and the codification of 
fundamental rights constitute processes which are foundational for liberal democratic 
polities. In this paper, we argue that these developments are, however, not solely 
restricted to the domain of the nation-state. In the European Union (EU), over the past 
half century, the European Parliament has undergone a remarkable transformation 
from an assembly endowed with supervisory powers to a directly-elected legislator, 
co-deciding most secondary legislation on equal footing with the Council of 
Ministers. While human rights were not institutionalized in the founding Treaties of 
the European Communities, the European Court of Justice (ECJ) began to make 
references to fundamental rights in its jurisprudence since the late sixties (Stone 
Sweet 2000). The recent past has seen the codification of fundamental rights in the 
Charter of Fundamental Rights and, most recently, in the Treaty establishing a 
Constitution for Europe. Yet, the processes which underlie these two developments 
are fundamentally different to the ‘parliamentarization’ and institutionalization of 
human rights in nation-states. In the EU, these processes have not been triggered 
‘from below’ by civic protest or even revolutionary movements, or as a result of the 
intervention of foreign powers. 
      The phenomenon we refer to as ‘constitutionalization’ is the process whereby 
the EU’s institutional architecture and legal order increasingly come to reflect the 
fundamental norms and principles of liberal democracies. The central focus of this 
paper is thus to identify the dynamics and mechanisms that brought and continue to 
bring about parliamentarization and institutionalization of human rights: Why and 
under what conditions have human rights become increasingly enshrined in the EU’s 
legal architecture? Why has the European Parliament (EP) come to acquire powers 
over time that resemble those of national parliaments more than those of any 
parliamentary assembly of an international organization (Malamud and de Sousa 
2004; Rittberger 2005: 2-3)?
      We will argue that for explanations inspired by both rationalist and 
constructivist institutionalism these two phenomena constitute a puzzle which has not 
yet been resolved. To counter this state of affairs, we propose to analyze the 
constitutionalization of the EU as “strategic action in a community environment” 
(Schimmelfennig 2003). According to this approach, community actors can use the 
liberal democratic identity, values and norms that constitute the EU’s ethos 
strategically to put social and moral pressure on those community members that 
oppose the constitutionalization of the EU. Theoretically, strategic action will be most 
effective in a community environment if constitutional issues are highly salient, 
constitutional norms are possess high international legitimacy and resonate well with 
domestic norms, and if constitutional negotiations are public. In a first attempt to test 
our argument empirically, we conduct a Qualitative Comparative Analysis (QCA) of 
the EU’s constitutional decisions from 1951 to 2004. While the results generally 
confirm the hypothesized conditions, they reveal salience to be the by far most 
relevant condition of constitutionalization in the EU.
      To develop our argument, we will proceed as follows. In the ensuing section, 
we will discuss the integration theoretic literature and illuminate why the state of the 
literature is unsatisfactory with regard to the explanations and cues offered to shed 
light on the parliamentarization and the institutionalization of human rights. We then 
introduce strategic action in a community environment as an alternative theoretical 
perspective. Section 4 describes our research design, the cases and the data, and 
section 5 presents our preliminary QCA findings. Section 6 concludes. 

1. The constitutionalization of the EU: A theoretical puzzle
Integration theorists have for long debated the causes of transfers of sovereignty from 
the domestic to the supranational level. The theory-oriented causal and empirical 
analysis of ‘constitutional’ negotiations and outcomes has been a stronghold of 
rationalist liberal intergovernmentalism which regards economic interdependence, 
commercial interests, bargaining power, and the institutionalization of state 
commitments to bargaining outcomes as the central factors in the institutional 
development of the EU (Moravcsik 1998).  Other rationalist studies on the delegation 
of competences to EU institutions, inspired by principal-agent theory – have focused 
on the Commission or the European Court of Justice (Pollack 1997, 2003) while 
neglecting other aspects of constitutional politics – such as parliamentarization and 
the institutionalization of human rights. It has been demonstrated that these processes 
are difficult to explain on the basis of both rationalist intergovernmentalist as well as 
constructivist premises (Rittberger 2005).

1.1. Rationalism and constitutionalization 
From a rationalist perspective, actors in constitutional politics seek to institutionalize 
competences and rules of decision-making which are most likely to maximize their 
utilities in future political bargains for which, however, the constellation of actors and 
preferences is uncertain. In order to determine what kind of rules maximize an actor’s 
utility, rationalists make auxiliary assumptions regarding those interests and 
preferences integral to their utility function. Rationalist explanations for institutional 
choices in the EU stress a number of functions exercised by institutions which induce 
political actors to delegate sovereignty. First, institutional choices can reduce the 
transaction costs associated with decision-making and thus carry efficiency-enhancing 
effects. For instance, slimming a legislative procedure by reducing the number of 
readings or, more drastically, reducing the number of veto players involved in 
decision-making may speed up decision-making or reduce the potential for stalemate 
or non-decision and hence reduce the costs of decision-making. However, especially 
with regard to the latter example, attempts to improve the efficiency of institutional 
arrangements may carry significant distributional implications. Actors may challenge 
existing institutions not merely to improve the efficiency of decision-making but also 
to improve their capacity to affect policy decisions (Tsebelis 1990; Knight 1992). The 
second strand of literature thus looks at actors as policy-seekers, who prefer those 
institutions which best help them to ‘lock in’ their preferred ‘policy-streams’.
      In the EU literature, Hix (2002) has advanced a rationalist argument as to why 
the EU member states decided to reform the co-decision procedure at Amsterdam by 
scrapping the third reading, thereby improving its overall efficiency. Yet, at the same 
time, by scrapping the third reading, the member states formally improved the 
position of the EP in the legislative game, thereby redistributing decision-making 
power from the member states to the EP. Hix thus asks why the EP ‘won at 
Amsterdam’ and stipulates that an exclusive focus on the Amsterdam Treaty 
negotiations obscures that the reform of the co-decision procedure was first and 
foremost the achievement of ‘rule interpretation’ by MEPs of the Maastricht 
provisions of the co-decision procedure (see also Rasmussen 2000; Farrell and 
Héritier 2003). At Amsterdam, the Member States merely institutionalized formally or 
de jure what was already common practice, i.e. the de facto operation of the 
Maastricht version of co-decision. Hix (2002: 272) argues that even though the 
‘governments do not expect these new rules to redistribute power to the EP, as the 
governments expect to retain ultimate control under the legislative … procedure’, 
Members of the European Parliament (MEPs) seek for a favorable interpretation of 
the new rules and threaten to jeopardize the legislative process if the Council is not 
willing to accept the European Parliament’s interpretation. Since there is at least one 
Member State government which is indifferent between the de facto operation and the 
de jure rules, the initial status quo cannot be enforced and hence, once the next 
constitutional reform-phase comes about, the EP will propose to the member states to 
formalize the de facto operation of the legislative rules. Hix, however, qualifies the 
scope of the applicability of this ‘automatism’ by introducing two conditions which 
have to be met if the de facto operation of constitutional rules is to be formalized into 
de jure rules: First, there must be zero redistribution of powers between the de facto 
operation of the old and the de jure operation of the proposed new rules; secondly, 
there have to be collective efficiency gains of the new procedure such as greater 
transparency or greater simplicity in the actual operation of the procedure (see Hix 
2002: 272). If these conditions are met, even the most recalcitrant government is 
unlikely to veto a proposal which entails efficiency and transparency gains. Hix’s 
argument constitutes a systematic attempt to explicate conditions under which the EP 
is able to successfully challenge the de jure Treaty rules. Yet, the two aforementioned 
conditions, which are crucial for parliamentarization to succeed, are too restrictive to 
provide a comprehensive account of the EP’s empowerment. First, we need empirical 
evidence to know whether member states acquiesced to co-decision reform due to the 
expected efficiency-enhancing effects or whether other considerations played a role. 
Hix’s argument about the efficiency-enhancing effects of the ‘interpreted’ co-decision 
procedure is not backed up by empirical evidence: Making a functional argument 
about the expected efficiency-enhancing effects of co-decision reform is not the same 
as providing an argument that looks at actors’ actual motivations. Secondly, in 
contrast to the expectations derived from Hix’s efficiency-based explanation, reforms 
of legislative decision-making rules in the EU only rarely result in Pareto-improving 
bargains. As a result of subsequent Treaty reforms, decision-making efficiency has 
been substantially hampered by the reform of legislative rules. Schulz and König 
(2000) show that legislative reform in the EU reduces decision-making efficiency 
since “giving the Parliament a formal role in the legislative process significantly 
increases the duration of the decision-making process.” (Schulz and König 2000: 664; 
see also Rittberger 2005: chapter 5)
      Efficiency-based arguments thus offer a poor fit for explaining the increasing 
role the EP is playing in legislative decision-making, let alone for the 
parliamentarization phenomenon as a whole. Opting for a policy-seeking argument as 
point of departure, Bräuninger et al. (2001) argue that political actors will attempt to 
create and to sustain those rules from which they expect the generation of ‘policy 
streams’ which maximize their policy preferences under given constraints (such as the 
unanimity rules at IGCs). Bräuninger et al. (2001) develop and test a set of hypotheses 
which reflect this underlying assumption about Member states as ‘policy-seekers’ and 
institutions as instruments for member states to reap the ‘policy streams’ they expect 
institutions to help generate (see also Steunenberg and Dimitrova 1999). First, the 
authors propose that changes in the voting rules in the Council and European 
Parliament participation in the legislative process can only come about when all 
member states expect to be better off under the proposed institutional changes. They 
find that member states’ net expected utilities (i.e. the gains expected from 
institutional reform resulting from the Amsterdam Treaty), even though they vary 
substantially across Member States, are all greater than zero when compared with the 
status quo. Second, the authors propose and find confirmation for the proposition that 
member states advocate institutional changes along issue specific lines if they expect 
to be better off as a result (i.e. if the calculate the net gain from institutional choices in 
each individual policy area). In their discussion of the results, they authors state that 
their models fare well in accounting for the move to qualified majority voting or the 
retention of unanimity in various policy areas in the Amsterdam Treaty, yet their 
findings are unsatisfactory as far as the EP’s participation in the legislative process is 
concerned: Whereas member states “take into account their individual expected gains 
from future policy-making when deciding in the Council’s voting quota for future 
decision-making”, the same does not hold for the European Parliament. Bräuninger et 
al. (2001: 64) thus conclude that “the results on the EP’s participation indicate 
different reasons for its choice. Commitments of a certain number member states do 
not sufficiently explain the participation of the EP. We suspect that policy-seeking 
delegations may be guided by different “central ideas” when deciding on both voting 
rules.”
      A further attempt to explain the extension of the EP’s (legislative) powers 
grounded in a policy-seeking approach has been advanced by Moravcsik and 
Nicolaïdis (1999). Explaining member state governments’ decision to empower the 
EP by reforming the co-decision procedure at Amsterdam, they offer the following 
logic: Social democratic parties and governments in the Council supported an increase 
in the EP’s legislative powers given that – at the time of the Treaty negotiations – 
there existed a left-wing majority of MEPs in the EP. This left-wing majority in the 
EP, so the argument, rendered the decision to increase the legislative powers of the EP 
‘easy’ for the mainly social democratic chiefs of government during the Amsterdam 
negotiations. This claim, however, is not supported by any data. More fundamentally, 
however, if the decision of the predominantly left-wing chiefs of government was 
based on the instrumental calculation that a left-wing majority in the EP would (help) 
produce legislation closer to the respective governments’ ideal points than a right-
wing dominated EP, Moravcsik and Nicolaïdis assume that governments are 
extremely short-sighted and demonstrate little understanding of the logic of EP 
elections as ‘second order national contests’ which tend to provide electoral benefits 
to those parties in opposition domestically. Hix argues “by strengthening the EP’s 
power, the centre-left governments increased the likelihood of centre-right policies at 
the European level. Hence, Moravcsik and Nicolaïdis’s explanation only holds if it 
includes the assumption that the governments negotiating the Treaty of Amsterdam 
made a major miscalculation about the future political make-up of the EP.” (Hix 
2002: 269)
      Pollack (1997, 2003) has analyzed the delegation of powers from member 
states to EU organs, the Commission, ECJ and European Parliament, from the 
perspective of principal-agent (P-A) theory. P-A theory stipulates that principals may 
delegate four functions powers to their agents: monitoring the compliance with 
agreements among principals; filling in ‘incomplete contracts’; providing credible 
expert information; agenda-setting to avoid endless ‘cycling’ of proposals (see 
Pollack 2003: 21). This ‘functional logic of delegation’ fares well in accounting for 
the pattern of delegation to the Commission and the ECJ, yet Pollack admits that it 
offers a poor fit for explaining the powers of the EP. He echoes Bräuninger et al.’s 
results when he argues that the willingness of the member states to support or oppose 
EP legislative participation in specific policy areas has varied considerably as a result 
of cross-national variation in substantive policy preferences and the expected 
consequences of parliamentary involvement in specific policy areas. He stresses that 
throughout past Treaty revisions, the member state governments adopted a case-by-
case approach to the extension of the respective legislative procedures whereby they 
took account of the anticipated consequences of EP participation in each individual 
issue area and the particular ‘sensitivities’ of each member government.  While this 
evidence supports the claim that member states follow a rationalist ‘logic of 
consequentialism’ when they bargain over the participation of the EP in individual 
policy areas, the question of why the EP was given a legislative role in the first place 
remains unanswered (Pollack 2003: 257-258). Neither the efficiency- nor the policy-
seeking arguments enable us to capture the general decision to improve parliamentary 
participation in the EU’s legislative process, let alone the decision endow the EP with 
budgetary powers or the rationale behind its creation. Against this background, even 
rationalist authors refer to the role of norms and the perceived necessity by political 
actors to inject the EU with a dose of parliamentary democracy to explain the 
delegation of competences to the European Parliament.
      In contrast to the case of parliamentarization, to our knowledge, rationalist 
analyses of the institutionalization of human rights at the EU level are absent. One 
might reason by analogy, however, that political efficiency gains of binding EU 
decisions to human rights norms are hard to imagine. Rather, it introduces a constraint 
on intergovernmental policy-making autonomy and potentially strengthens 
independent, judicial review of EU legislation. Even if one dismisses the formal 
institutionalization of human rights in the EU as a mainly or even purely symbolic act 
with negligible cost implications for member state governments, it remains to be 
explained why governments would engage in this process in the first place.
      The rationalist literature on general international human rights does not help 
either. First, the establishment of international human rights institutions constitutes a 
puzzle for neoliberal institutionalism (Donnelly 1986; Moravcsik 2000: 217; Schmitz 
and Sikkink 2002: 521), since classical human rights issues concern a purely domestic 
relationship between a state and its citizens and do not require international 
cooperation to overcome externalities and inefficiencies created by international 
interdependence. In contrast, Andrew Moravcsik proposes – in his analysis of the 
establishment of the Council of Europe-based European human rights regime – that 
the international institutionalization of human rights is in the self-interest of newly 
established democratic government in order “to ‘lock in’ and consolidate domestic 
institutions, thereby enhancing their credibility and stability vis-à-vis nondemocratic 
political threats.” (2000: 220). This explanation does not entirely fit the 
institutionalization of human rights in the EU, however. It could account for human 
rights rules binding candidate and member states (such as the Copenhagen political 
conditions for membership or Art. 7 TEU, which empowers EU institutions to 
suspend the rights of a member state in case of a serious and persistent breach of the 
core community norms) as an instrument of reducing political uncertainty. It is less 
clear, however, why member government should have a self-interest in binding the 
EU to human rights rules, thus reducing the very political autonomy that they sought 
to increase by making policy at the EU level (Moravcsik 1994; Wolf 1999).
      
1.2. Constructivism and constitutionalizaton 
While rational studies thus struggle to explain parliamentarization and 
institutionalization of human rights, the constructivist literature has alluded to the role 
of identities and norms, for instance in explaining the decisions of member state 
governments to empower the European Parliament. Yet it suffers from a double 
puzzle.
      On the one hand, all EU member states share the basic liberal constitutional 
norms that governments and their actions be constrained by respect for human rights 
and approved directly or indirectly by elected, representative assemblies of the 
people: parliaments. These norms are not only common to the member states but also 
form a central part of their identity as liberal-democratic states. In light of these 
common norms and identities, it is puzzling why member state preferences on the 
application of these norms to the EU have regularly diverged and led to controversy – 
and why it took such a long time for these norms to become institutionalized at the 
Union level (Bojkov 2004: 333-34). 
      In response to this apparent puzzle, the constructivist literature argues that, 
whereas ideas on human rights and parliamentary power are widely shared among EU 
member states and societies, it is their EU-related identities and constitutional ideas 
that not only differ strongly but also changed little over time (see Jachtenfuchs et al. 
1998; Jachtenfuchs 2002; Marcussen et al. 1999; Wagner 1999). Yet, if ideational 
convergence or international socialization has not taken place, it is still puzzling why 
the EU should have undergone progressive democratic constitutionalization. It is even 
more puzzling that this democratic constitutionalization has taken place and 
accelerated as the membership and its constitutional ideas have become more 
heterogeneous and less federalist as a result of enlargement.
      Most accounts in this tradition stress the distinctiveness of domestically held 
‘polity ideas’ or legitimating beliefs’ which inform political actors’ institutional 
choices. Wagner, for instance, argues that political elites in the member states employ 
notions of ‘appropriate parliamentary legitimation’ (Wagner 1999: 427) which states 
derive from domestic political culture when contemplating over the role and powers 
to be exercised by the EP. ‘Political culture’ is operationalized by identifying “those 
worldviews and principled beliefs – values and norms – that are stable over long 
periods of time and are taken for granted by the vast majority of the population.” 
(Risse-Kappen quoted in Wagner 1999: 427) Wagner thus employs domestic 
constitutional arrangements as a proxy for its political culture: Member states will 
hence “respond to the question of supranational democracy in the same way they have 
addressed the question of sub-national democracy.” (Wagner 2002: 29, emphasis in 
the original) More concretely, Wagner argues that we should expect “support for 
direct parliamentary legitimation by those countries whose policy at the regional level 
has been legitimized by directly elected regional parliaments, i.e. by federal states. … 
[C]ountries whose regional-level policy has been legitimized indirectly by the 
national parliaments, i.e. unitary states … are expected to prefer indirect 
parliamentary legitimation for the EU.” (Wagner 2002: 29) Hence, federally-
organized member states such as Germany and Belgium in which regional policy is 
directly legitimized through the involvement of regional parliaments are expected to 
be in favor of a strengthening of the EP’s powers while unitary states, such as France, 
are less inclined to support an empowerment of the EP. Although Wagner’s 
theoretically derived expectations are largely corroborated in his work, his approach 
suffers two deficiencies. First, it is causally incomplete as it offers no answer to the 
question of how we move from “political culture” to preferences and on to outcomes. 
In particular, why have governments coming from diverse political cultures 
repeatedly agreed to strengthen the powers of the EP? Secondly, Wagner’s approach 
is mute on the issue of when and under what conditions the question of EP 
empowerment becomes salient and induces political elites to contemplate on its 
empowerment.
      In several contributions to the subject, Jachtenfuchs (1999, 2002) and his 
collaborators (Jachtenfuchs et al. 1998) have specified the content of shared beliefs 
about a ‘legitimate political order’ (‘polity ideas’) which are attributed a prominent 
role in the constitutional development of polities (see Jachtenfuchs et al. 1998: 410). 
They show that variation in polity ideas helps to explain why different EU member 
states, but also different political parties within a member state hold different 
preferences for the ‘appropriate’ scope of policy integration and form and powers of 
EU institutions. According to Jachtenfuchs et al. (1998), political parties are the major 
‘carriers’ of polity ideas: they are articulated in national party manifestoes and records 
of parliamentary debates during which governments have to justify their foreign 
policy behavior before their domestic audience. Four analytically distinct polity ideas 
are identified – Intergovernmental Cooperation (“Staatenbund”), Federal State 
(“Bundesstaat”), Economic Community (“Wirtschaftsgemeinschaft”) and Network 
(“Netzwerk”) – which offer alternative prescriptions for action. Depending on which 
polity idea an actor adheres to, the answers she will give to questions such as the 
sources of legitimate governance, the desirability and possibility of democracy at the 
supranational level, supranational citizenship, etc. will vary substantially. This 
argument also applies to the phenomena of parliamentarization and the 
institutionalization of human rights: elite support depends on the polity idea which 
respective political elites hold. Contrary to Wagner, Jachtenfuchs and collaborators 
offer a more nuanced analysis of those normative beliefs which define what actors 
consider ‘appropriate’ governance structures, pointing at the observation that political 
culture is not interpreted uniformly within each member state. Even though 
Jachtenfuchs’s account is more precise in specifying the content of alternative polity 
ideas and their behavioral prescriptions, explanations inspired by constructivism do 
not offer a satisfactory explanation for the processes of parliamentarization and the 
institutionalization of human rights at the EU level. First, neither Wagner nor 
Jachtenfuchs can account for the conditions under which these issues becomes salient: 
the timing of constitutional reform decisions remains unaccounted for. Second, while 
Jachtenfuchs is focusing on the formation and content of actors’ preferences, nothing 
is said about the process whereby preferences are translated into outcomes, that is: 
concrete institutional choices.
      The review of the existing work on the subject demonstrates that both 
rationalist and constructivist approaches appear ill suited to explain the 
constitutionalization phenomena under consideration. From the rationalist 
perspective, neither an efficiency- nor a policy-seeking logic helps us to account for 
the progressive empowerment of the EP. Approaches informed by constructivism 
ascribe an important role to polity ideas in shaping actors’ preferences and guiding 
action. While these accounts improve our understanding about the source and content 
of political elites’ preferences as to what role for the EP should play in the EU polity, 
these accounts fall short of offering a causally complete explanation of 
constitutionalization processes. In the ensuing section, we present a theoretical 
approach which aims at overcoming these shortcomings.

2. Solving the puzzle: Strategic action in a community environment
Any theoretical solution to the puzzle of EU constitutionalization needs to explain 
why and how the EU has made progress toward parliamentarization and the 
institutionalization of human rights in spite of stable adverse or divergent member 
state preferences and in the absence of bargaining power or learning and socialization 
effects conducive to constitutionalization. The solution we propose here is “strategic 
action in a community environment” (Schimmelfennig 2003: 159-163). 
      On the one hand, and in line with rationalist institutionalism, the approach 
assumes that actors involved in EU integration and policy-making have stable 
interest-based or idea-based preferences and act strategically to achieve an outcome 
that maximizes their utility. In contrast to constructivist or sociological institutionalist 
propositions, this means, first, that the policy preferences of the actors are not derived 
from collective identities, values, and norms constructed and institutionalized at the 
EU level. Rather, they reflect actor-specific interests or ideas. Second, the actors 
follow a logic of consequentiality, not appropriateness (March and Olsen 1989) or 
truth seeking (Risse 2000) in their actions and interactions, and third, they will not 
change their identities and norms or learn and internalize new, “appropriate” 
preferences as result of their interaction in the EU context.
      On the other hand, we assume that the EU constitutes a community 
environment for its members. This assumption goes beyond the regime rules stressed 
by rationalist institutionalism but agrees with the constructivist emphasis on informal, 
cultural values and norms. An international community is defined by three core 
characteristics: its ethos, its high interaction density, and its decentralization.  The 
ethos refers to the constitutive values and norms that define the collective identity of 
the community – who “we” are, what we stand for, and how we differ from other 
communities. A high interaction density is indicated by frequent and relevant 
interactions in a multitude of policy areas and at various political levels. Moreover, 
membership in communities is permanent for all practical purposes. Finally, 
international, pluralistic communities lack a centralized rule making and rule 
enforcement authority.
      These conditions apply in the EU. First, it has a European and liberal identity 
that is most explicitly stated in Article 6 of the Treaty on European Union (TEU): 
“The Union is founded on the principles of liberty, democracy, respect for human 
rights and fundamental freedoms, and the rule of law.” Second, it probably has the 
highest interaction density of all international organizations. At the same time, the EU 
still relies predominantly on voluntary rule compliance and national rule 
implementation. Primary political socialization still takes place in a national rather 
than European context.
      For strategic actors, acting in a community environment means that the 
effective pursuit of political goals is not only dependent on the constellation of actor 
preferences, their relative bargaining power and formal decision-making rules. The 
community ethos defines a standard of legitimacy that community members have to 
take into account to be successful. In addition, the high interaction density provides 
for soft, informal mechanisms of rule enforcement.  In particular, a community 
environment affects interaction and collective outcomes in the following ways:
1.	It triggers arguments about the legitimacy of preferences and policies. 
Actors are able – and forced – to justify their preferences on the basis of the 
community ethos. They engage in “rhetorical action”, the strategic use of 
the community ethos. They choose ethos-based arguments to strengthen the 
legitimacy of their own goals against the claims and arguments of their 
opponents.
2.	The community ethos is both a resource of support and a constraint that 
imposes costs on illegitimate actions. It adds legitimacy to and thus 
strengthens the bargaining power of those actors that pursue preferences in 
line with, although not necessarily inspired by the community ethos.
3.	The permanence of the community forces actors to be concerned about 
their image. This image does not only depend on how they are perceived to 
conform to the community ethos but also on whether they are perceived to 
argue credibly. Credibility is the single most important resource in arguing 
and depends on both impartiality and consistency (Elster 1992: 18-19). If 
inconsistency and partiality are publicly exposed and actors are caught 
using the ethos opportunistically, their credibility suffers. As a result, their 
future ability to successfully manipulate the standard of legitimacy will be 
reduced. Thus, community members whose preferences and actions violate 
the community ethos can be shamed and shunned into conformity with the 
community ethos and their argumentative commitments – even if these 
contradict their current policy preferences.
      In sum, a community environment has the potential to modify the collective 
outcome that would have resulted from the constellation of preferences and power and 
the formal decision-making rules alone. It facilitates individual compliance and the 
reproduction of a normative order in the absence of an interest-based equilibrium or 
centralized enforcement. On the other hand, it does not necessarily require the 
internalized following of community norms or a true consensus. This theoretical 
approach with its postulated causal mechanisms of rhetorical action and social 
influence should be particularly suitable to analyzing institutions that, on the one 
hand, have the core characteristics of community (ethos and high density) but cannot 
count on centralized rule enforcement or strong political socialization, on the other – 
such as the European Union.
      What do these theoretical ideas imply for the study of liberal-democratic 
constitutionalization in the EU? They generate the expectation that, even though 
parliamentarization and institutionalization of human rights at the EU level do not 
reflect the collective institutional interest or the normative consensus of member state 
governments, their collective identity as democratic states and governments and as 
members of a liberal international community obliges them in principle to conform to 
basic norms of liberal democracy. Community actors that are interested in expanding 
the powers of the EP and the role of human rights in the EU for self-interested or 
principled reasons are therefore able to exert effective social influence by using norm-
based frames and arguments in constitutional negotiations and to persuade reticent 
community actors to make constitutional concessions.
      We expect, however, that the strength of community effects on strategic action 
in international communities will vary according to several context conditions.
1.	Constitutive rules. Obviously, the more constitutive or constitutional a 
policy issue is or the more it involves fundamental questions of community 
purpose, the easier it is for interested actors to bring in questions of 
legitimacy and to frame it as an issue of community identity that cannot  be 
left to the interplay of self-interest and bargaining power. Since both 
human rights and parliamentary competencies are such constitutive rules 
and are directly linked to fundamental political norms of a liberal 
community, we expect this condition to be constantly present.
2.	Salience. Within the domain of constitutive politics, we expect community 
effects to increase with the salience of the constitutional problem. We 
define salience as the perceived discrepancy between “ought” and “is”.  
The more a proposed or implemented step of EU integration is perceived to 
curb the competencies of national parliaments and to undermine national or 
other international human rights provisions, the more salient the 
“democratic deficit” of European integration becomes and the stronger is 
the normative pressure on EU actors to redress the situation through 
strengthening constitutional rights at the EU level (cf. Rittberger 2003, 
2005).
3.	Legitimacy. Even among issues that are constitutive and highly salient, 
community effects may vary according to the norms in question. According 
to Thomas Franck, the degree to which an international rule “will exert a 
strong pull on states to comply” depends on four properties, which account 
for its legitimacy: determinacy, symbolic validation, coherence in practice, 
and adherence to a norm hierarchy (Franck 1990: 49). To the extent that the 
relevant community norm possesses these qualities, it becomes difficult for 
the shamed community members to neglect or rhetorically circumvent its 
practical implications (cf. Shannon 2000: 294). We focus specifically on 
two dimensions of legitimacy. 
a.	Coherence refers to established norms and practice. Community effects in 
constitutional negotiations will be strongest if demands are based on 
precedent, that is, for instance, earlier treaty provisions, common member 
state declarations, or informal practices.
b.	Consistency refers to international norms and practices outside the EU. 
Again, we assume that the legitimacy pull of constitutional norms will be 
stronger if their proponents can refer to the norms and practices of other 
international organizations of the same community. Such an extra-
institutional precedent is most obvious for the case of human rights, which 
are already strongly institutionalized in the Council of Europe system of 
human rights protection. In contrast, the competencies of parliamentary 
assemblies in other Western international organizations such as NATO or 
the Council of Europe are so minor that they cannot be expected to 
strengthen the legitimacy of demands for more EP competencies.
4.	Resonance. Resonance is a major explanatory factor in studies of the 
domestic impact of international norms (see, e.g., Checkel 1997; 1999; 
Cortell and Davis 2000). Here, we suggest that those constitutional 
demands that resonate most strongly with domestically held and 
institutionalized norms will create the strongest sense of obligation at the 
EU level when appealed to in the shaming process.
5.	Publicity. Shaming and shunning work better in public than behind close 
doors. In a public setting, strategic actors feel more compelled to use 
impartial and consistent norm-conforming language and to behave 
accordingly. We therefore assume that the community ethos will have a 
stronger impact on constitutional negotiations and outcomes if they are 
public than in the usual format of Intergovernmental Conferences.
Illustration 1 summarizes the assumed mechanism and conditions of strategic 
constitutional negotiations in a community environment.

Illustration 1	Conditions and Mechanisms of Rhetorical Action in EU Constitutional 
Negotiations

		Salience		Publicity	Consistency	Coherence

Divergent/adverse							
constitutional								Constitutionalization
preferences		rhetorical action		social influence

					Resonance

Briefly summarized, the model postulates that, on the basis of divergent or adverse 
constitutional member state preferences, progress in constitutionalization results from 
a process of rhetorical action and social influence and depending on the presence and 
strength of salience, publicity, resonance, consistency, and coherence. Moreover, the 
model contains a potential dynamic effect, since constitutionalization at one point in 
time will increase the legitimacy pull of coherence in future constitutional 
negotiations. 
      Theoretically, this model is able to fix the explanatory deficiencies of  extant 
rationalist and constructivist analyses of constitutionalization. It provides a causal 
mechanism and conditions under which, in the absence of efficiency, common 
interests, and a constitutional consensus among EU member states, 
parliamentarization and the institutionalization of human rights progress in the EU.
      The preceding discussion is summarized in the ‘constitutionalization 
hypothesis’:

Constitutionalization Hypothesis
Decisions to empower the European Parliament and to institutionalize human 
rights in the EU are likely to occur
-	the more a proposed step of EU integration is perceived to undermine 
the powers of national parliaments or human rights provisions thereby 
producing a “democratic deficit” exercising normative pressure on EU 
actors to redress the situation through strengthening constitutional 
rights at the EU (salience);
-	the more legitimate a particular norm is (coherence and consistency);
-	the more strongly a constitutional decision resonates with domestically 
held and institutionalized norms about human rights and the role of 
parliaments (resonance);
-	the more public the setting for constitutional decision-making is 
(publicity).

3. Data, cases, methods
To test our central hypothesis, we take recourse to the method of Qualitative 
Comparative Analysis (QCA) advanced by Charles Ragin (1987; 2000). In the 
following section, we briefly outline the underlying assumptions and goals of QCA. 
In the ensuing sections, we will introduce the selection of units of analysis, our 
dependent and independent variables, the cases and the respective values of our 
variables.

3.1. Method: QCA
In essence, Qualitative Comparative Analysis is an extension of classical comparative 
analysis or the “congruence method”. It is specifically designed to handle a large 
number of cases rigorously without applying statistical, regression-based techniques.
      Charles Ragin defines the essence of qualitative research by its case-
orientation. Qualitative analysis distinguishes itself from quantitative research not just 
– or not so much – by the (limited) number of cases or the (qualitative) kind of data 
and measurements but by its “holistic character”. Qualitative social researchers look 
at and compare “cases as wholes”: “cases are viewed as configurations – as 
combinations of characteristics” (Ragin 1987: 3). Qualitative research then seeks “to 
determine the different combinations of conditions associated with specific outcomes 
or processes.” (Ragin 1987: 14) As a consequence, qualitative research is less 
concerned with the number of cases than with the variety of conditional 
configurations. It does not work with sampling, frequencies, and probabilities; its 
methods are logical rather than statistical. It is not interested in the general 
significance and explanatory power of individual variables but in their embeddedness 
in causal fields as either individually or jointly necessary and/or sufficient conditions 
(Ragin 1987: 15-16). This corresponds to the interest of this paper in discovering the 
configurations of conditions of constitutionalization in the EU. 
      However, qualitative analyses often become more difficult to conduct and 
interpret as the number of cases and variables increases. Commonalities become rare 
and difficult to identify, the number of possible comparisons increases geometrically, 
and the number of logically possible combinations of causal conditions increases 
exponentially (Ragin 1987: 49-50). Using Boolean algebra, QCA offers a tool to 
handle more than the handful of cases and causal configurations typically analyzed in 
qualitative research without, at the same time, requiring the large n of statistical 
analyses. It is capable of examining complex patterns of interactions between 
variables and contains procedures to minimize these patterns in order to achieve 
parsimony (Ragin 1987: 121-123). Thus, QCA helps to improve qualitative research 
without having to compromise on its basic features. In contrast to regression-based 
techniques, it allows researchers to study necessity and sufficiency and makes it easier 
to study interactions between explanatory variables.
      Basic QCA requires the researcher to conceptualize variables dichotomously 
and use binary data (0/1). “Fuzzy-set” QCA (Ragin 2000) also works with values 
between 0 and 1 and thus allows for a more fine-grained and information-rich 
analysis. However, fuzzy-set QCA still requires the researcher to define a 
theoretically meaningful qualitative “breakpoint” and to interpret the intermediate 
values as degrees of membership in the 0 or 1 class of cases. For reasons of simplicity 
and clarity of interpretation, we therefore decided to eliminate theoretically less 
relevant information and to use a binary coding.
      The data is arranged as a “truth table”. That is, each conditional configuration 
(combination of values of the independent variables) present in the data set is 
represented as one row together with the associated (“truth”) value of the dependent 
variable. Finally, the truth table is analyzed with procedures of combinatorial logic to 
arrive at a solution specifying a parsimonious combination of necessary and sufficient 
causes (Ragin 1987: 86-99). 

3.2. Units of Analysis
Our units of analysis are formal constitutional decisions of the European Union which 
are taken during Intergovernmental Conferences (IGC). This implies that we do not 
analyze constitutional proposals, nor constitutional preferences at this stage. We have 
identified nine IGCs resulting in new treaties or treaty revisions: ECSC 1951, Rome 
1957, Luxembourg 1970, Brussels 1975, SEA 1986, Maastricht 1992, Amsterdam 
1997, Nice 2000, Constitutional Treaty 2004. With exception of budgetary powers, 
we exclude the 1970 and 1975 IGCs because they were specifically planned to amend 
the competencies of the European Parliament in this sphere. Constitutional changes in 
the other areas of parliamentary competencies as well as in the area of human rights 
could not have been introduced at these IGCs given their exclusive focus on 
budgetary competencies.
      This conceptualization of the unit of analysis entails a principled openness 
toward the outcome of our dependent variable “constitutionalization”. Constitutional 
decisions of the EU may be accompanied by parliamentarization or 
institutionalization of human rights or they may not. Whereas many studies of 
European integration look at instances of constitutional change only, thus privileging 
the “positives” and neglecting the “negatives”, our data set includes almost as many 
negative (27) as positive cases (31) of constitutionalization.

3.3. Variables and operationalization
Our dependent variable is constitutional change. If constitutional decisions on the 
distribution of competencies and transfers of sovereignty are accompanied by a 
positive change in favor of parliamentarization and institutionalization of human 
rights, we code the outcome as “1”. “Positive change” can mean two things: 
1	A move from a lower to a higher level of constitutionalization:
a.	from “no constitutionalization” to at least “declaratory 
constitutionalization” (official references to parliamentarization and 
human rights, recommendations to strengthen competencies); 
b.	from “declaratory constitutionalization” to at least “weak 
constitutionalization” (non-binding rights and competencies);
c.	and from “weak” to “strong constitutionalization” (binding rights and 
competencies)
2	An significant extension of rights and competencies within each level of 
constitutionalization:
a.	At the levels of “declaratory” and “weak” constitutionalization: 
horizontal extension to new issues (additional human rights or 
additional parliamentary competencies);
b.	At the level of “strong constitutionalization”: horizontal extension to 
further issues and/or strengthening of obligation and delegation 
resulting in stronger EU parliamentary and human rights competencies.
In our analysis, we include five independent variables theoretically identified as 
potentially relevant by the approach of strategic action in a community environment: 
salience, resonance, coherence, consistency and publicity. 

Salience
Constitutionalization becomes salient when a (planned) constitutional decision, which 
changes the distribution of competencies within the European multi-level system 
results (would result) in a reduction of previous (national or international) 
parliamentary competencies or human rights protection. For constitutionalization to 
be coded salient (1), such a reduction must also be perceived to be problematic by EU 
actors (see Rittberger 2005). We thus code salience as present if at least one EU actor 
brings up the problem and demands constitutional change. Salience disappears (0) 
after the institutionalization of parliamentary competencies and human rights at the 
EU level, provided that previous levels of parliamentary competencies and human 
rights protection are re-established. 

Coherence
We code constitutional decisions as coherent if there exists a formal or informal 
institutional precedent within the EU (1) and incoherent if such a precedent is absent 
(0). Formal precedence is always present if there has been constitutional change at a 
previous IGC. Technically speaking, a value of 1 for constitutional change sets 
coherence to 1 for all subsequent constitutional decisions. In addition, informal 
precedence is established by codification between IGCs, e.g., through 
interinstitutional agreements that enhance the powers of the parliament or by ECJ 
rulings that establish the legal validity of human rights at the EU level. Theoretically, 
coherence adds normative power to attempts at constitutionalization and creates path-
dependency. It can be used by rhetorical actors to support their claims for change in a 
pre-established direction.

Consistency
In contrast with coherence, consistency refers to the international institutionalization 
of the norms in question outside the EU (1). It is absent if there are no such 
international norms for a proposed or required constitutional change (0). The causal 
effect is assumed to be the same as for coherence but presumably weaker. Generally, 
codification is absent in the area of parliamentarization because there is no 
internationally codified norm requiring parliamentary competencies beyond 
consultation to be granted to international assemblies outside the EU. In contrast, it is 
mostly present for human rights. In this area, we interpret international codification 
narrowly and code it as “1” if a particular class of human rights has been codified by 
the Council of Europe in form of a binding convention, namely the ECHR of 1950 
(political rights and non-discrimination), the European Social Charter of 1961 (social 
rights) and the Framework Convention on National Minorities of 1995 (minority 
rights).

Resonance
Constitutionalization is resonant if it is compatible with national constitutional 
cultures (1). Conversely, resonance is low (0) if the constitutional change required to 
counter the democratic deficit contradicts national constitutional traditions and 
provisions. Theoretically, resonance is assumed to condition the acceptability of 
constitutional changes at the EU level. Constitutional changes that resonate with 
national constitutional cultures will receive a boost, whereas those that do not will be 
blocked.
      In contrast to salience and publicity (see below), resonance is a sub-systemic 
variable. In order to explain systemic change, it has to be transformed to a systemic-
level variable. Given that constitutional changes require consensus among the 
member states, and that consensus is hard to build against any large member states, 
we postulate that the absence of resonance for a single large member state (France, 
Germany, Italy, Spain, UK) will set systemic resonance to zero, while it is coded as 
“1” as soon as all major actors show at least neutral resonance, i.e. when domestic 
institutions or traditions are permissive for the constitutional change in question.

Publicity
At the structural level, publicity is a feature of the negotiating forum for constitutional 
decisions. In the EU, formal constitutional decisions are made in IGCs behind close 
doors, that is, they are generally characterized by low publicity. The only distinction 
we can make at the structural level is that between regular IGCs (0) and IGCs that are 
preceded by convention-type preparatory conferences (1). The latter are conceived to 
involve a higher degree of publicity because conventions include other actors besides 
the representatives of member-state governments and public proceedings. IGCs 
following conventions are assumed theoretically to increase the pressure on actors to 
use and respond consistently to norm-based arguments, because actors making their 
arguments in a public setting are more likely to be rhetorically entrapped by the norm-
based arguments and conclusions of the conventions. In the parliamentarization case, 
the only IGC preceded by a convention was the 2003-2004 IGC on the constitutional 
treaty; for human rights, the Nice IGC of 2000 is an additional instance (preceded by 
the Convention, which drew up the Charter of Fundamental Rights).

Cases
Explanatory factors vary with specific issues of constitutionalization. For this reason, 
we subdivide constitutionalization not only into the two processes of 
parliamentarization and institutionalization of human rights but further differentiate 
both processes according to four specific competencies and rights for each. For 
parliamentarization, we distinguish four fields of competences: legislative 
competencies, budgetary competencies, control of the Commission, and appointment 
of the Commission. With regard to the institutionalization of human rights, we equally 
distinguish between four areas: civil rights and liberties, non-discrimination, social 
rights, and minority rights. The issue-specific coding has the welcome side-effect of 
increasing our number of cases. Given the qualifications about the 1970 and 1975 
IGCs, which focused exclusively on budgetary competencies, we arrive at 58 cases.  
      For reasons of space, we are not able to provide data and detailed evidence for 
our assessment of the values of the different variables.  Table 1 offers an overview of 
the cases and the data indicating the respective values of the dependent and 
independent variables.



Table 1	Cases and data

Human Rights Cases

case
salience
resonance
coherence
consistency
publicity
constitutional change
CPR51
0
0
0
1
0
0
CPR57
0
0
0
1
0
0
CPR86
1
0
1
1
0
1
CPR92
1
0
1
1
0
1
CPR97
1
1
1
1
1
1
CPR00
1
1
1
1
1
1
CPR04
1
1
1
1
1
1
ND51
1
0
0
1
0
1
ND57
1
0
1
1
0
1
ND86
0
0
1
1
0
0
ND92
0
0
1
1
0
0
ND97
1
1
1
1
1
1
ND00
0
1
1
1
1
1
ND04
0
1
1
1
1
1
MR51
0
0
0
0
0
0
MR57
0
0
0
0
0
0
MR86
0
0
0
0
0
0
MR92
0
0
0
0
0
0
MR97
0
0
0
1
1
0
MR00
0
0
0
1
1
0
MR04
0
0
0
1
1
0
SR51
0
0
0
0
0
0
SR57
0
0
0
0
0
0
SR86
1
0
0
1
0
1
SR92
1
0
1
1
0
1
SR97
1
0
1
1
1
1
SR00
1
0
1
1
1
1
SR04
1
0
1
1
1
1

CPR: civil and political rights; ND: nondiscrimination; MR: minority rights; SR: social rights;




Parliamentarization Cases

case
salience
resonance
coherence
consistency
publicity
constitutional change
CC51
1
0
0
0
0
1
CC57
1
0
1
0
0
1
CC86
0
0
1
0
0
0
CC92
0
0
1
0
0
0
CC97
0
1
1
0
0
0
CC00
0
1
1
0
0
0
CC04
0
1
1
0
1
0
CA51
0
0
0
0
0
0
CA57
0
0
0
0
0
0
CA86
1
0
1
0
0
0
CA92
1
0
1
0
0
1
CA97
0
1
1
0
0
1
CA00
0
1
1
0
0
0
CA04
1
1
1
0
1
1
BP51
1
0
0
0
0
1
BP57
1
0
1
0
0
1
BP70
1
0
1
0
0
1
BP75
1
0
1
0
0
1
BP86
0
0
1
0
0
0
BP92
0
0
1
0
0
0
BP97
0
1
1
0
0
0
BP00
0
1
1
0
0
0
BP04
1
1
1
0
1
1
LP51
0
0
0
0
0
0
LP57
1
0
0
0
0
1
LP86
1
0
1
0
0
1
LP92
1
0
1
0
0
1
LP97
1
1
1
0
0
1
LP00
1
1
1
0
0
1
LP04
1
1
1
0
1
1

CC: Commission control; CA: Commission appointment; BP: budgetary powers; LP: legislative 
powers


4. Analysis
The “truth table” displayed as Table 2 summarizes and lists the conditional 
configurations present in the data. “1” indicates the presence of the particular 
condition hypothesized to cause constitutional change; “0” indicates the absence of 
such a condition.  
      Before presenting the results of the QCA analysis, we would like to point out 
two observations. First, the truth table represents 16 of the 32 (= 25) possible 
configurations. For the other half of the logically possible configurations, we do not 
have empirical outcome observations. Fortunately, however, only one pair of 
conditions is completely absent from the truth table: the presence of resonance in the 
absence of coherence.

Table 2	Truth Table

row
salience
resonance
coherence 
consistency
publicity
constitutional 
change
N
Cases
1
1
1
1
1
1
1
4
CPR97-04, 
ND97
2
1
1
1
0
1
1
3
CA04, 
BP04, 
LP04
3
1
1
1
0
0
1
2
LP97/00
4
1
0
1
1
1
1
3
SR97-04
5
1
0
1
1
0
1
4
CPR86/92, 
ND57, 
SR92
6
1
0
1
0
0
1/0
7/
1
CC57, 
CA92, 
BP57-75, 
LP86/92, 
CA86
7
1
0
0
1
0
1
2
ND51, 
SR86
8
1
0
0
0
0
1
3
CC51, 
BP51, 
LP57
9
0
1
1
1
1
1
2
ND00/04
10
0
1
1
0
1
0
1
CC04
11
0
1
1
0
0
0/1
5/
1
CC97/00, 
CA00, 
BP97/00, 
CA97
12
0
0
1
1
0
0
2
ND86/92
13
0
0
1
0
0
0
4
CC86/92, 
BP86/92
14
0
0
0
1
1
0
3
MR97-04
15
0
0
0
1
0
0
2
CPR51/57
16
0
0
0
0
0
0
9
MR51-92, 
SR51/57, 
CA51/57, 
LP51

      The absent configurations are called “remainders”. QCA can deal in different 
ways with these remainders depending on the goal of the analysis. In order to 
maximize parsimony, remainders can be used as potential simplifying assumptions in 
the logical minimization of conditions. By contrast, “the most conservative strategy is 
to treat them as instances of the absence of the outcome when assessing the conditions 
for the presence of the outcome” and vice versa (Rihoux and Ragin 2004: 12). In our 
analysis, we used both techniques to see what difference they make for the results.
      Second, two configurations are contradictory, that is, the same configuration 
of conditions leads to constitutional change in some cases and no change in others 
(see rows in Table 2 with “1/0” or “0/1” outcomes. In contrast to a probabilistic 
statistical analysis, a deterministic logical analysis cannot incorporate such 
contradictory results. However, the contradiction can be reduced to two specific cases 
of Commission appointment (CA86 and CA97). These cases will require careful 
analysis later; for the moment, we exclude them from the analysis to obtain a general 
picture. 
      With this caveat, the parsimonious solution produced by QCA  for the 
presence of constitutionalization is “SALIENCE or (RESONANCE and COHERENCE 
and CONSISTENCY and PUBLICITY).”  That is, constitutional change has occurred 
either when the issue was salient (there was a perceived legitimacy deficit) or, in the 
absence of salience, when all other conditions were jointly present.
      This solution offers general support for the constitutionalization hypothesis. 
All of the variables which we expected to be causally related with constitutional 
change appear to be relevant explanatory variables and all show into the expected 
direction: the presence of the conditions is associated with the presence of 
constitutional change. However, one condition clearly stands out: salience. In 54 out 
of 58 cases, salience is a both necessary and sufficient condition for bringing about 
constitutional change. In these 54 cases, constitutional change occurred whenever 
salience was present – even if all other theoretically postulated conditions were absent 
(see Row 8 in Table 2). Conversely, whenever salience was absent, no (further) 
parliamentarization or institutionalization of human rights occurred. In the two cases 
in which change was present in the absence of salience, all other factors had to be 
jointly present to produce a positive outcome (see Row 9 in Table 2).
      What about the four “outliers” where the presence (absence) of salience does 
not (does) produce constitutional change? In the two non-discrimination cases (ND00 
and ND04) we observe constitutional change despite the absence of salience. The 
same holds for the case of Commission appointment powers for the EP in 1997 
(CA97). In-depth case study research is needed to trace how, in the absence of 
salience, the combinations of the other conditions generates sufficient normative 
pressure to trigger constitutional change. Similarly, we can identify one single case 
where the presence of salience is not associated with constitutional change: the case 
of Commission appointment in 1986 (CA86) where the EP was being refused a 
Treaty-based role in the Commission appointment process despite the salience of the 
issue. This finding does not contradict our theoretical expectations, yet it forces us to 
investigate more closely how an instance of high salience does, seemingly, not 
generate sufficient normative pressure to trigger constitutionalization.
      To learn more about the robustness of this parsimonious solution for positive 
outcome, let us first cross-check it for the negative outcome, the absence of 
constitutional change. Here the parsimonious solution is “salience and consistency or 
salience and resonance”. That is, constitutional change will not occur if either 
salience and consistency are jointly absent or salience and resonance are jointly 
absent. This solution generally confirms the results of the analysis for positive 
outcomes. The absence of constitutionalization is associated with the absence of three 
conditions identified by our model and salience stands out as the most relevant 
condition again. The absence of salience is a necessary condition for the absence of 
constitutional change. However, in contrast to the positive analysis, it is not a 
sufficient condition.
      As a second check of robustness, we ran a conservative analysis uniformly 
treating the 16 absent conditional configurations (“remainders”) as counterfactuals. 
That is, we assumed that all of them would not produce positive constitutional 
change. This analysis results in a much less parsimonious solution: 
“SALIENCE and resonance and publicity or
SALIENCE and RESONANCE and COHERENCE and consistency or
RESONANCE and COHERENCE and CONSISTENCY and PUBLICITY or
(SALIENCE and resonance and COHERENCE and CONSISTENCY 
or SALIENCE and COHERENCE and CONSISTENCY and PUBLICITY).”
This solution is much harder to interpret than the parsimonious solution but it 
confirms the relevance of salience for constitutional change: it figures as a positive 
and necessary condition in four out of five configurations and never as a negative 
condition. In addition, this analysis reveals coherence to be equally relevant. Just as 
salience, it is a positive and necessary condition in four out of five sufficient 
configurations and it is never a negative condition. All other conditions (resonance, 
codification and publicity) appear less often and are sometimes positive and 
sometimes negative, that is, they are not systematically associated with constitutional 
change. In sum, this solution shows that coherence, the presence of institutional 
precedent in the EU, appears to be an important condition of constitutionalization, 
which might have been eliminated prematurely in the more parsimonious analyses.
      If coherence is a relevant condition of constitutionalization, it is plausible to 
assume that it will be more relevant in the later stages of European integration after 
institutional precedent has been established. We therefore subdivided our cases into 
two groups, one covering all early constitutional decisions before 1986, the other 
comprising the more recent decisions starting with the 1986 Single European Act. The 
results confirm our assumption. Sticking with the conservative analysis of remainders, 
we find that, in the early cases, only salience is a necessary and positive condition in 
all sufficient configurations, whereas in the more recent cases, both salience and 
coherence are necessary and positive conditions in all sufficient configurations.
      Finally, we checked our findings for issue-specificity. Do parliamentarization 
and institutionalization of human rights follow a common logic or does  
constitutionalization in these two issue-areas depend on different (sets of) conditions? 
We find that issue-specificity is low. In the conservative analysis, salience and 
coherence are equally positive and necessary conditions in both issue-areas. In the 
parsimonious analysis, the solution for parliamentarization is “SALIENCE”, that is, 
the perceived legitimacy deficit is a both necessary and sufficient condition for 
parliamentarization. The solution for the human rights issues is “SALIENCE or 
(RESONANCE or COHERENCE and PUBLICITY)”, indicating that, while salience 
can be a necessary and sufficient condition for the institutionalization of human 
rights, there are other causal paths as well.
      In sum, salience and coherence appear to be robust conditions of 
constitutionalization in European integration. As expected, coherence gains in 
importance as constitutionalization progresses. To what extent the elimination of 
coherence in the parsimonious QCA solution is justified or simply an artefact of the 
method, needs to be assessed more thoroughly in the detailed analysis of the cases.
      
Conclusion
In this paper, we analyzed the deficiencies of extant rationalist and constructivist 
analyses of EU parliamentarization and institutionalization of human rights. As an 
alternative, we proposed to analyze these two processes of constitutionalization as 
strategic action in a community environment. Theoretically, this approach provides a 
causal mechanism and conditions under which, in the absence of efficiency, common 
interests, and a constitutional consensus among EU member states, 
parliamentarization and the institutionalization of human rights will progress in the 
EU. 
      In a QCA of 58 constitutional decisions of the EU from 1951 to 2004, we 
tested five theoretically plausible conditions of effective strategic action in a 
community environment. The preliminary results strongly suggest that the key factors 
in generating normative pressure, which trigger constitutional change in turn, are 
salience and coherence. How can we interpret these findings? 
      First, it seems that the more a proposed or implemented decision by the 
member states to pool or delegate sovereignty is perceived to curb the competencies 
of national parliaments and to undermine national or other international human rights 
provisions, the more salient the “democratic deficit” of European integration 
becomes. This state of affairs then generates normative pressure on EU actors to 
redress the situation through strengthening the powers of the EP and human rights 
provisions at the EU level. With regard to parliamentarization, these findings are in 
line with the results of a set of in-depth case studies on this issue (cf. Rittberger 2003, 
2005). Second, we suggest that the existence of institutional precedent in the EU is a 
second source of pressure on the EU actors to further constitutionalize the EU along 
an established pathway. In contrast, there does not seem to exist any systematic 
congruence between consistency, publicity, and resonance, on the one hand, and 
constitutional change in the EU, on the other.
      The QCA has allowed to analyze the conditions and conditional configurations 
of constitutionalization in the EU for a large number of cases covering the entire 
history of European integration and to select the most promising candidates for 
explaining this process from a set of theoretically plausible causal conditions. QCA, 
however, follows the congruence method of comparative analysis and does not give 
us direct insight into the political process of constitutionalization. To further 
substantiate the results, we will therefore conduct process-tracing analyses in order to 
determine, whether there really was a clear causal process linking salience, coherence 
and constitutional change and, if so, how salience and coherence produced the 
progressive constitutionalization of the EU.
      In a broader theoretical perspective, our preliminary analysis appears to 
corroborate the “supranationalist” theory of European integration. Our findings 
suggest that integration which is reflected in member states’ decisions to pool and 
delegate sovereignty triggers a normative spillover process. Once integration looms, 
normative pressure is generated to counter the threat which community actors in the 
EU associate with integration, namely that further integration undermines the 
competencies of national parliaments and human rights provisions. In addition, 
supranationalist theory emphasizes institutional path-dependencies (see e.g. Pierson 
1998; Stone Sweet and Sandholtz 1997) and argumentative self-entrapment 
(Schimmelfennig 2001) in European integration. The relevance of coherence as a 
condition of constitutionalization seems to corroborate these mechanisms.



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   The research for the paper has been funded since 2004 by the Thyssen Foundation and the Mannheim 
Center for European Social Research. Our collaborators in this project, Alexander Bürgin and Guido 
Schwellnus, have contributed case study data to this paper.
  The two constitutionalization phenomena have been well-described in the literature. For 
parliamentarization, see Corbett (1998), Maurer (2003); Westlake (1994); for the institutionalization of 
human rights, see Alston (1999); McCrudden (2001); Quinn (2001). Yet, as far as human rights are 
concerned, there is no theoretically-driven literature explaining institutionalization.
  Pollack (2003: chapter 4) refers to Joseph Jupille work to back up his arguments (see Jupille 2004). 
See also Steunenberg and Dimitrova (1999: 21). They quote Moravcsik’s (1993, 1998) argument that 
‘when the consequences of institutional decisions are politically risky, calculable and concrete, national 
positions will be “instrumental” reflecting the expected influence of institutional reforms on the 
realization of substantive interests.’
  See the concept of “pluralistic security community” developed by Deutsch et al. (1957).
  On social influence, see Johnston (2001).
  Note that other authors define and use “salience” interchangeably with “resonance” (see below). See 
e.g. Cortell and Davis (2000).
  For another application of QCA to the analysis of European integration, see Koenig-Archibugi 
(2004).
  For the parliamentarization process the count is 30 (3x7 + 1x9) and for institutionalization of human 
rights the count is 28 (4x7).
  The dossier in which we present data and evidence for coding our cases about parliamentarization and 
institutionalization of human rights can be obtained from the authors upon demand. 
  To analyze the data we used fs/QCA 1.1 software (Ragin et al. 2003) which can be downloaded at 
<www.fsqca.com>.
  In QCA notation, upper-case letters indicate the presence of a condition, whereas lower-case letters 
indicate the absence of a condition.
 
 
 
 


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