Constitutional Failure or Constitutional Odyssey? What Can We Learn from Comparative Law?

Perspectives on Federalism, Vol. 3, No. 1, pp. 51-77, 2011

Posted: 21 Jul 2011 Last revised: 13 Dec 2013

Date Written: July 21, 2011

Abstract

According to many scholars, the rejection of the Constitutional Treaty and the disappointment caused by the contents of the Lisbon Treaty - defined by Somek (2007) as a mere post-Constitutional Treaty – mark the failure of any possible constitutional ambition for the European Union (EU). This point can be challenged both from a theoretical point of view - by describing the EU as an example of “evolutionary constitutionalism” - and a pragmatic one (i.e., looking at the functioning of concrete constitutional experiences), I will focus my paper on this second point, insisting on comparative argument. The research question of this work is: Can we compare the “constitutional crisis” of the EU to the constitutional difficulties encountered by other multinational experiences? My idea is that the latest attempts at amending the EU treaties – the period of the “Conventions” - can be traced back to the genus of mega-constitutional politics and starting from this parallelism I argue that the so-called constitutional “failure” of the EU is actually a confirmation of the current constitutional nature of the EU rather than the proof of the impossibility of transplanting the constitutional discourse to the EU level.

Keywords: European Union, European Constitution, Canada, Switzerland, comparative law, Constitutional Odyssey

Suggested Citation

Martinico, Giuseppe, Constitutional Failure or Constitutional Odyssey? What Can We Learn from Comparative Law? (July 21, 2011). Perspectives on Federalism, Vol. 3, No. 1, pp. 51-77, 2011, Available at SSRN: https://ssrn.com/abstract=1891831

Giuseppe Martinico (Contact Author)

Scuola Superiore Sant'Anna di Pisa ( email )

Biblioteca Scuola Superiore Sant'Anna
Piazza Martiri della Liberta, n. 33
Pisa, 56127
Italy
(+39)3494441388 (Phone)

HOME PAGE: http://www.stals.sssup.it/site/?q=node/15

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