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The Making of a European Constitution Judges and Law Beyond Constitutive Power Not only addressing European constitutional jurisprudence, but also the strategies and philosophies that judges and lawyers bring to bear when creating it, The Making of a European Constitution investigates and promotes the sustainability of a theory or praxis of ‘procedural’ constitutionalism. Building upon European and American critical legal scholarship, Michelle Everson and Julia Eisner argue that constitutional adjudication has never been a neutral matter of mere judicial ‘identification’ of the values, norms and procedures that each society seeks to concretise in its own body of constitutional law. Instead, a ‘mythology’ of comprehensive national constitutional settlement has obscured the primary legal constitutional conundrum that is created by the requirement that a judiciary must always adapt its constitutional jurisprudence to the evolving values that are to be found within any society; but must, at the same time, maintain the integrity and autonomy of the law itself. European judges and lawyers, having been denied recourse to all forms of constitutional mythology, provide us with an alternative model of constitutionalism; one that does not require a founding myth of constitutional settlement, and one which both secures the autonomy of law, as well as ensures dialogue between law and society. This occurs, however, not through grand theories of ‘constitutional adjudication’ but rather, as The Making of a European Constitution documents, through practical process. Michelle Everson is Professor of Law at Birkbeck College University of London. Julia Eisner has worked extensively as an academic assistant, specialising in empirical, interview-based research. The Making of a European Constitution Judges and Law Beyond Constitutive Power Michelle Everson and Julia Eisner First published 2007 by Routledge-Cavendish 2 Park Square, Milton Park, Abingdon, OX14 4RN, UK Simultaneously published in the USA and Canada by Routledge-Cavendish 270 Madison Avenue, New York, NY 10016 A Glasshouse book Routledge-Cavendish is an imprint of the Taylor & Francis Group, an informa business © 2007 Michelle Everson and Julia Eisner This edition published in the Taylor & Francis e-Library, 2007. “To purchase your own copy of this or any of Taylor & Francis or Routledge’s collection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.” All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data Everson, Michelle. The making of a European Constitution : judges and law beyond constitutive power / Michelle Everson and Julia Eisner. p.cm. ISBN 978-0-415-43905-3 (hardback : alk. paper) – ISBN 978-0-20393980-2 (e-book) 1. Constitutional law–European Union countries. 2. European Union. I. Eisner, Julia. II.Title. KJE4445.E98 2007 342.24–dc22 2007008686 ISBN 0 -203-93980-8 Master e-book ISBN ISBN 10 (hb): 0-415-43905-1 ISBN 13 (hb): 978-0-415-43905-3 ISBN 10 (e-book): 0-203-93980-8 ISBN 13 (e-book): 978-0-203-93980-2 Contents Acknowledgements Table of cases Introduction : The transfigured constitution I. II. III. IV. V. VI. 1 2 The failure of the constitutional moment The power of law beyond the constitutional moment Law in the making of the European constitution Seeing into the mind of European law From constitutional to legal theory The transfigured constitution: a force for legal and social good? ix x 1 1 2 4 6 8 10 Constitutional mo(u)rning 13 I. The constitution is dead II. The constitution is dead; long live the constitution! III. ‘Bringing the law back in’: from constitutional theory to legal and social theory IV. Rechtsverfassungsrecht: between facts and norms in European constitutionalism V. Bringing politics back in: liberal deliberation and the limits to democracy VI. Constitutional morphogenesis VII. Bringing politics back in: an ‘illiberal’ conclusion 13 14 Retelling the legal integration story Introduction: law’s proprium and the inadequacy of interdisciplinarity II. The court and its academic interlocutors 19 22 26 30 32 41 I. 41 44 vi 3 4 Contents III. The market and the law: an unforeseen and accidental constitutionalism and its legal challenges III.1. The market created: an act of formalist constitution III.2. The market evolving: from ‘transcendental nonsense’ to economic rationality and back again IV. The limits to market integration: constituting society beyond the market IV.1. The limits to corporatist dissolution: constraining the self-defining European polity within the European market IV.2. The limits to organic interconnection: adjudicating at the interface between Europe’s laws IV.3. Law’s limits in the evolving political community V. Between norm and fact: reflexive law and constitutional morphogenesis 73 Forgetting law 85 I. Law and non-law in the convention process II. Law and non-law in the constitution-building process III. The reference procedure and the making of the European constitution IV. Judges, lawyers and the source of the force of law IV.1. Data-set and methodology 85 88 Adjudicating non-authoritative law I. II. III. IV. V. 5 Lawyers, (self-) illusion and the making of the constitution The formalist narrative of European constitution-building Argumentation, evidence, problem-solving and strains in the formalist narrative III.1. Judicial dialogue: the basis for normative re-alignment? III.2. Legal language and constitution-building III.3. Evidence and constitution-building III.4. ‘Workability’ and constitution-building Servants to or agents of the constitution-building process? Thick law: from adjudication to constitution-building 48 50 55 63 64 68 71 94 97 98 104 104 105 109 111 112 115 116 117 119 Constitutionalising the institutional balance of powers 125 I. Institutional balance within the European polity II. Dynamic politics and static law: the high stakes of judicial interventionism 125 129 Contents II.1. Static adjudication II.2. Transcendental nonsense and constitutional adjudication III. Polity-building within the institutional balance: conflicts and consequences III.1. The separation of powers versus the balance of powers III.2. Conflict, contradiction and the separation of powers III.3. The political, administrative and constitutional functions of the institutional balance III.4. The separation of powers versus the balance of powers versus the rule of law IV. Conclusion: invitatio ad offerendum and the principled mechanics of constitutional morphogenesis 6 7 The principled judicial mechanics of constitutional morphogenesis vii 129 134 140 141 144 148 149 150 157 I. The abyss beckons II. Law and non-law: normative vision, political contention and legal principle within the institutional balance? III. Principles and (self-) illusion within European constitutionalism IV. Reconstructing social and political reality: legal (self-) illusion unveiled IV.1. Science, facts, explanation and legal reconstruction of reality IV.2. Law and political reality: democratic experimentalism IV.3. Professionalism, formalism and legal (self-) illusion re-established V. Conclusion: dynamic proceduralism 157 189 190 Constitutionalism beyond constitutions 200 I. An eternity of axiom II. Europe’s law beyond axiom II.1. Axiom refined: a final constitutional settlement II.2. The ‘free’ European legal movement II.3. Europe’s reflexive legal order III. Europe’s Rechtsverfassungsrecht III.1. European legal formalism revisited 200 204 163 169 173 174 178 204 207 211 214 216 viii Contents III.2. The real-world of European adjudication III.3. Revolution, politics and deliberation IV. The constitutional imperative 218 Bibliography 232 241 Index 220 224 Acknowledgements This book was completed within the ambit of the fifth framework project on Citizenship and Democratic Legitimacy in the European Union (CIDEL), funded by the European Commission and co-ordinated by the Centre for European Studies at the University of Oslo (ARENA). We are grateful to the Commission for financing, which allowed us to conduct empirical research. We are also indebted to all colleagues within CIDEL, and especially at ARENA, for their academic support and insightful critiques and commentaries. In particular, thanks are due to Erik Oddvar Eriksen, John Erik Fossum and Christian Joerges. In addition, we are also indebted to Chris Engert for editing that went far beyond the call of duty.