From Myth to Fiction: Why a Legalist-Constructivist Rescue of European Constitutional Ordering Fails

Oxford Journal of Legal Studies, Vol. 29, No. 3, pp. 579–602, 2009

36 Pages Posted: 3 Jul 2009 Last revised: 19 Sep 2010

See all articles by Ming-Sung Kuo

Ming-Sung Kuo

University of Warwick - School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: 2009

Abstract

The defeat of the Constitutional Treaty by French and Dutch voters in 2005 and the following stalemate of the Lisbon Treaty have sparked a soul-searching process for European constitutional scholarship. Among the numerous academic efforts devoted to contemplating the future of European constitution, Michelle Everson and Julia Eisner’s The Making of a European Constitution: Judges and Law Beyond Constitutive Power deserves a close look. Everson and Eisner argue for a postconstituent view of European constitutionalization, which they call ‘Rechtsverfassungsrecht’. Departing from the myth of the constituent power, they interpret the development of a European constitution as a self-creating process by which the ordinary legal system gives itself a set of core values and thereby remakes itself into a constitutional order. Moreover, against the criticisms of juridification, they defend this lawyer-centred process of European constitutionalization as incorporating politics into the daily operation of the legal system. Engaging with Everson and Eisner’s argumentation, I argue that their account of European constitutional development does not so much put out a realist theory of the EU constitutionalization as sets out a realist academic lawyering for the next round of European constitutional politics, which is shared among European constitutional scholars. Contrasting this community-based legal profession in Europe with the situation of epistemic pluralism in American jurisprudence, in this article I observe that a lawyer-centred European constitutional theory as Everson and Eisner’s book illustrates is premised on an inherited consensus that has held a European legal profession together. However, this lawyer-centred account of European constitutionalization presumes either the projection of a professional community onto a Europe-wide civic culture or the self-appointment of legal professionals as the fiduciary of the citizenry. Each is a fiction, however. This fictional character of the legalist-constructivist strategy to European constitutional politics is the underlying cause of the dilemma facing European constitutional ordering.

Keywords: European constitutional law, constitutionalization, EU constitution, postconstituent constitutionalism, European integration, constitutional theory, legal profession

Suggested Citation

Kuo, Ming-Sung, From Myth to Fiction: Why a Legalist-Constructivist Rescue of European Constitutional Ordering Fails (2009). Oxford Journal of Legal Studies, Vol. 29, No. 3, pp. 579–602, 2009. Available at SSRN: https://ssrn.com/abstract=1419668

Ming-Sung Kuo (Contact Author)

University of Warwick - School of Law ( email )

Gibbet Hill Road
Coventry, CV4 7AL
United Kingdom

HOME PAGE: http://warwick.ac.uk/fac/soc/law/people?id=4945a0b0c6550cc21bbcc89cf0b570af

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