Constitutionalism Beyond the State?: The Administrative Character of European Governance Revisited
13 Pages Posted: 27 Mar 2012 Last revised: 28 Mar 2012
Date Written: May 27, 2011
This article is my contribution to a symposium at Cardozo Law School in October 2010 on Michel Rosenfeld’s recent book, The Identity of the Constitutional Subject (2010). I focus in particular on the question posed in Rosenfeld’s final chapter, 'Can the constitutional subject go global?' Like many other scholars, Rosenfeld cautiously looks to the experience of the European Union (EU) as a possible model for such denationalized constitutionalism. I believe this approach requires even more circumspection than Rosenfeld rightly brings to it. Understood historically, European integration is best seen as a new, denationalized stage in the historical process of diffusion and fragmentation of normative power into the administrative sphere, whether within or beyond the state. Even as significant regulatory power has migrated to Europe’s denationalized system of governance, the capacity for ultimate legitimation has remained distributed among the 'constituted' bodies of government in the Member States; no similar capacity has yet migrated to the EU level, despite the best efforts of Europe’s supranational institution-builders over time. The evolution of European public law over the last six decades can thus best be understood as an effort to overcome a core disconnect - between the exercise of otherwise autonomous supranational regulatory 'power,' on the one hand, and the persistence of the nation-state as the primary source of democratic and constitutional 'legitimacy,' on the other. This separation of power and legitimacy has been the identifying characteristic of administrative governance as it evolved over the course of the twentieth century. Although often overlooked in the literature on European integration, European public law has depended on the legitimating structures and normative principles of administrative governance in its effort to reconcile Europe and the nation-state for more than over a half-century. In this sense, the EU is best understood as 'administrative, not constitutional' rather than as a possible model of 'constitutionalism beyond the state.'
Keywords: administrative governance, constitutionalism beyond the state, European Union, European integration
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