Europe's constitutional momentum and the search for polity legitimacy

International Journal of Constitutional Law

Volumn 3, Issue 2-3, 2005, Pages 211-238

  Walker, Neil ^a  

^a EUROPEAN UNIVERSITY INSTITUTE   (Italy)

Author keywords

[No Author keywords available]

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EID: 33746416290     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/moi016     Document Type: Article

References (88)

1. Treaty of Nice Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, 2001 O.J. (C 80) 1 [hereinafter Treaty of Nice]. Annex IV, Declaration on the Future of the European Union (Feb. 26, 2001).
2. Laeken Declaration on the Future of the European Union, Annex I to the Conclusions of the Laeken European Council (Dec. 14-15, 2001) SN 300/101 REV 1.
3. Draft Treaty establishing a Constitution for Europe, 2003 O.J. (C 169) 1 (Aug. 18, 2003).
4. Negotiations broke down in the European Council in Brussels in December 2003, apparently over the proposal in art. I-24 of the draft treaty to eradicate the system of national weighting in the context of qualified majority voting in the council. At that point, Poland and Spain, both of which had received favorable treatment in the reallocation of weighting provided under the Treaty of Nice in 2000, were not prepared to sacrifice their recently won advantage.
5. Treaty establishing a Constitution for Europe, 2004 O.J. (C 310) 1 (Dec. 16, 2004) [hereinafter CT].
6. Karl W. Deutsch et al., Political Community and the North Atlantic Area 36 (Princeton Univ. Press 1957).
7. See, e.g., Neil Walker, Constitutionalizing Enlargement, Enlarging Constitutionalism, 9 Eur. L.J. 365 (2003).
8. For other treatments of polity legitimacy, see Jo Shaw & Antje Wiener, The Paradox of the European 'Polity', in State of the European Union, Volume 5: Risks, Reform, Resistance and Revival 64-88 (Maria Green Cowles & Michael Smith eds., Oxford Univ. Press 2000)
9. Richard Bellamy & Dario Castiglione, Normative Theory and the European Union: Legitimising the Euro-Polity and its Regime, in After National Democracy: Rights, Law and Power in the New Europe (Lars Trägårdh ed., Hart 2004).
10. For discussion of the variety of bases of EU legitimacy, see Walker, supra note 7
11. see also David Beetham & Christopher Lord, Legitimacy and the European Union (Longman 1988)
12. see also Bellamy & Castiglione, supra note 8
13. Gráinne de Búrca, The Quest for Legitimacy in the European Union, 59 Modern L. Rev. 349 (1996)
14. Christopher Lord & Paul Magnette, Ex Pluribus Unum? Creative Disagreement about Legitimacy in the EU, 42 J. of Common Mkt. Stud. 183 (2004).
15. See Claus Offe, 'Homogeneity' and Constitutional Democracy: Coping with Identity Conflicts through Group Rights, 6 J. of Pol. Phil. 113, 119-124 (1998).
16. John Rawls, Political Liberalism 66 (Columbia Univ. Press 1996).
17. Hans Kelsen, General Theory of Law and State 258-259 (Harvard Univ. Press 1945).
18. See, e.g., Jeremy Waldron, Law and Disagreement 149-208 (Oxford Univ. Press 1999)
19. Frank Michelman, Constitutional Authorship, in Constitutionalism: Philosophical Foundations 64-98 (Cambridge Univ. Press 1998)
20. James Tully, The Unfreedom of the Moderns in Comparison to their Ideals of Constitutional Democracy, 65 Mod. L. Rev. 204 (2002).
21. See Waldron, supra note 13 at 159.
22. See Bellamy & Castiglione, supra note 8.
23. See, e.g., Richard Falk, Predatory Globalization: A Critique 35-47 (Polity 1999).
24. See, e.g., Simone Chambers, Democracy, Popular Sovereignty, and Constitutional legitimacy, 11 Constellations 153 (2004).
25. See, e.g., Michael Keating, Plurinational Democracy: Stateless Nations of the United Kingdom, Spain, Canada and Belgium in a post-Sovereign World (Oxford Univ. Press 2001).
26. Miguel Maduro, Where to Look for Legitimacy?, in Arena Report No. 5/ 2003, Constitution Making and Democratic Legitimacy (Erik Odvar Eriksen et al. eds., Arena 2002).
27. On the different forms and contexts of constitution making, see Andrew Arato, Civil Society, Constitution and Legitimacy 229-258 (Rowman & Littlefield 2000).
28. See, e.g., Jan Zeilonka, Democratic Consolidation in Eastern Europe (Oxford Univ. Press 2001).
29. See Chambers, supra note 17.
30. As Rosenfeld indicates regarding the founding of the United States, this sense of nascent community may be based as much upon a common immigration source and experience among the framers and those they represent as upon indigenous factors. See Michel Rosenfeld, The European Convention and Constitution Making in Philadelphia, 1 Int'l. J. Const. L. (I•CON) 373 (2003).
31. On the active or representative character of any constitutional recognition of prior political community, see Hans Lindahl, Sovereignty and Representation in the European Union, in Sovereignty in Transition 87-114 (Neil Walker ed., Hart 2003).
32. One can find examples where there has been a degree of self-government prior to independence, in the Baltic states, say, prior to the breakup of the USSR, or in Slovenia in the case of ex-Yugoslavia, or the Czech Republic and Slovakia in the succession to Czechoslovakia.
33. This is not restricted to the European Court of Justice, but it has been the most influential (if only occasional) pronouncer on the constitutional status of the Union prior to the current phase, starting with Case 294/83, Parti Ecologiste 'Les Verts' v. Parliament, [1986] ECR 1339.
34. See Rosenfeld, supra note 23.
35. See Giuseppe Federico Mancini, Europe: The Case for Statehood, 4 Eur. L.J. 29 (1998).
36. See Neil Walker, Late Sovereignty in the European Union, in Sovereignty in Transition supra note 24, at 3, 23.
37. See, e.g., Robert Jackson, The Global Covenant: Human Conduct in a World of States 1-24 (Oxford Univ. Press 2000).
38. Neil Walker, Human Rights in a Postnational Order: Reconciling Political and Constitutional Pluralism, in Sceptical Essays on Human Rights 139 (Tom Campbell et al. eds., Oxford Univ. Press 2001).
39. Victor W. Turner, Dramas, Fields and Metaphors: Symbolic Action in Human Society (Cornell Univ. Press 1974).
40. Roger Cotterrell, Some Aspects of the Communication of Constitutional Authority, in Law as Communication 129 (David Nelkin ed., Dartmouth 1995).
41. See, e.g., Dieter Grimm, Does Europe Need a Constitution? 1 Eur. L. J. 282 (1995).
42. For example, the famous decision in Brunner v. The European Union Treaty [1994] 1 C.M.L.R. 57 is ambiguously poised between contingent and deep skepticism, amenable to either interpretation.
43. Convention on the Future of Europe, Flash EuroBarometer 142 (2003) (EOS Gallup Europe).
44. Such figures would include the results of the European Parliament elections in June 2004, just one week before the Brussels summit which agreed on the draft treaty. These elections produced both a record-low turnout and a record-high support for parties committed to withdrawal from the European Union.
45. For example, the attitude of many European regional groups and umbrella organizations toward the convention was ambivalent, torn between a desire to have their voice heard and a wish not to underscore the authority of a process about whose legitimacy they were highly skeptical. This ambivalence was reflected in the attitude toward the convention taken by the Committee of the Regions. See, e.g., Michael Keating, Regions and the Convention on the Future of Europe, 9(1) S. Eur. Soc'y & Pol. 192 (2003).
46. See Uwe Leonardy, Kompetenzabgrenzung: Zentrales verfassungsprojekt fur die Europaische Union, in The Post-Nice Process: Towards a European Constitution? (Peter Zervakis & Peter Cullen eds., Nomos 2002).
47. See, e.g., The Economist, Nov. 4, 2000. The conversion of the traditionally Euroskeptic Economist newspaper to a European Constitution was contingent upon the endorsement of a power-constraining version of the Charter of Rights.
48. See Neil Walker, After the Constitutional Moment, in The Draft Constitutional Treaty (Ingolf Pernice ed., Nomos 2004).
49. For an excellent assessment of the dangers and potential irrelevancies of top-down constitutionalism from a bottom-up democratic experimentalist perspective, see Oliver Gerstenberg & Charles F. Sabel, Directly-Deliberative Polyarchy: An Institutional Ideal for Europe? in Good Governance in Europe's Integrated Market 289-341 (Christian Joerges & Renaud Dehousse eds., Oxford Univ. Press 2002).
50. Bruno De Witte, The Closest Thing to a Constitutional Conversation in Europe: The Semi-Permanent Treaty Revision Process, in Convergence and Divergence in European Public Law 39-57 (Paul Beaumont et al. eds., Hart 2002).
51. See, e.g., Bruno De Witte, Simplification and Reorganization of the European Treaties, 39 Common Mkt. L. Rev. 1255-1287 (2002).
52. Andrew Williams, Mapping Human Rights, Reading the European Union, 9 Eur. L.J. 659, 666 (2003).
53. Peter Norman, The Accidental Constitution (EuroComment 2003).
54. CT art. I-1(1), supra note 5.
55. 2000 O.J. (C 364) 1 (Dec. 18, 2000).
56. This conservative theme was prominent in the Oral Report Presented to the European Council in Thessaloniki by the Chairman of the European Convention on 20 June 2003 (EN, SN 173/03). In an even more conservative vein, see the views of Sir John Kerr, the secretary-general of the European Convention, in his preface to Prospect magazine's publication of the CT, at www.prospect-magazine.co.uk.
57. Joschka Fischer, From Confederacy to Federation: Thoughts on the Finality of European Integration, reprinted in What Kind of Constitution for What Kind of Polity? Responses to Joschka Fischer (Christian Joerges et al. eds., Robert Schuman Centre 2000).
58. See, e.g., Neil Walker, The Idea of European Integration and the 'finalité' of Integration, in The Emerging European Constitution (Bruno De Witte ed., Oxford Univ. Press forthcoming).
59. CT arts. I-33-34, supra note 5.
60. CT pt. III, ch. IV (pertaining to the area of freedom, security and justice).
61. CT art. I-22.
62. CT art. I-28.
63. CT art. 1-7.
64. CT arts. I-20 and I-27(1).
65. CT Protocol on the Role of National Parliaments in the European Union.
66. CT pt. II.
67. See Jürgen Habermas, Why Europe Needs A Constitution, 11 New Left Rev. 5 (2001);
68. also available at www.newleftreview.net/NLR24501.shtml.
69. See Claus Offe, The European Model of "Social" Capitalism: Can It Survive European Integration?, 11 J. Pol. Phil. 437 (2003).
70. See Walker, supra note 29.
71. Seventy-two of the 105 members of the convention were national (fifty-six) or European (sixteen) parliamentarians.
72. See, e.g., Joseph H. H. Weiler, The Constitution of Europe ch. 2 (Oxford Univ. Press 1999).
73. See Habermas, supra note 60, at 17.
74. See, e.g., Lars-Erik Cederman, Nationalism and Bounded Integration: What it Would Take to Construct a European Demos, 8 Eur. J. Int'l Rel. 139-174 (2001).
75. For a magisterial exploration of the EU's collective action problems, see Fritz W. Scharpe, Governing in Europe: Effective and Democratic? (Oxford Univ. Press 1999).
76. See Offe, supra note 61.
77. See Habermas, supra note 60, at 16-21.
78. See, e.g., Jürgen Habermas, On Law and Disagreement: Some Comments on "Interpretative Pluralism," 16 Ratio Juris 187 (2003).
79. For example, see Valéry Giscard d'Estaing, Henry Kissinger lecture, Washington, (Feb. 11, 2003), available at ue.eu.int/pressdata/EN/conveur/ 74464.PDE
80. See, e.g., Jo Shaw, What's in a Convention? Process and Substance in the Project of European Constitution-Building, Institute for Advanced Studies, Political Science Series No. 89 (2003). The article is also available at www.ihs.ac.at/index.php3?id=450&more=10.
81. CT pt. I, tit. VI (arts. 45-52) supra note 5.
82. Much is merely consolidation, but see CT art. 46(4), which for the first time provides for legislation by citizen's initiative.
83. See, e.g., Weiler, supra note 64, ch. 8.
84. Andrew Moravcsik, The Unsung Constitution, Prospect, Mar. 2004, 80-82.
85. See Habermas, supra note 70, at 193.
86. Id.
87. At the time of this writing (March 2005), following a change of mind by U.K. Prime Minister Tony Blair in May 2004, as many as ten countries have chosen the referendum option, and one, namely Spain, has already successfully negotiated that hurdle. For both legal (the incompatibility of a referendum on the EU constitution with national constitutional requirements in Italy and Germany) and political reasons (fear of failure), a Union-wide referendum was not seriously considered by the convention or IGC when deciding on the criteria for ratification of the treaty, which, instead, were to follow the usual permissive formula of ratification in accordance with domestic constitutional requirements (CT art. IV-447). If the aim and consequence is to mobilize public discussion around the constitution, the shift toward the referendum option can only be applauded. Yet the lateness and unevenness of the trend toward referendum on the part of proconstitution forces may play into the hands of the anti-European parties who recorded unprecedented levels of success at the June 2004 European parliamentary elections, and who thus gained an early advantage in their efforts to frame the debate in all or nothing terms (either Constitution or dissolution). Therefore, notwithstanding the early success at the Spanish vote and parliamentary ratifications in Lithuania, Hungary, and Slovenia, there can be no guarantee that the constitution will be duly ratified in all twenty-five member states, in which case it may fail (but see Declaration No. 30 on the ratification of the Treaty Establishing a Constitution for Europe). One view, forcefully expressed by Philip Pettit in his written commentary on my earlier draft (see Jean Monnet Working Papers Series 04/ 05, available at www.jeanmonnetprogram.org/papers/04/ 040501.html) was that such failure, even if it did not threaten the overall future of the EU, could suspend constitutional innovation for a generation. Another view is that the present initiative might be deemed merely an early phase in the process of the mobilization of the European political community, and, depending on the quality and level of engagement and debate, even failure might advance the conditions for a more successful subsequent initiative.
88. See also Neil Walker, The EU as a Constitutional Project, Federal Trust Online Papers 19/04, available at http://www.fedtrust.co.uk/uploads/ constitution/walker.pdf.