Constituting Europe: In Defence of Public Reason
12 King's Law Journal (2001), (from Proceedings of Colloquium: Can Europe have a Constitution?)
25 Pages Posted: 25 Jun 2014
Date Written: February 2000
This article contains three premises. The first is that the EU already has some sort of Constitution, albeit not one in the traditional sense. The second is that the existing constitutional order in Europe is now problematic and unsatisfactory. It is in a state of flux, and best seen as a plurality of overlapping orders, as characterised by MacCormick and others. This being the case, there will inevitably be problems regarding the relationship of these orders, and the question of ultimate authority, which cannot be resolved by recourse to the traditional hierarchical legal order posed by legal theory. This European polity is also unsatisfactory — even if the State is not taken as a model for constitutionalism, the EU is too undemocratic, too chaotic, too impenetrable to be meaningful to today's Europeans, to capture their hearts and minds, their imagination and their respect new solutions have to be found for this new constitutional age.
The third and major question is therefore how can we do better? What issues should a reforming European constitutionalism address? How may it resolve them? This last question involves issues of law and politics, political theory and philosophy. My conclusion on these issues will be the (perhaps unfashionable) contention that Europe needs a remodelled, clearly principled constitutional framework, built on a foundation of shared values, and that although Europeans may engage in mutual conversations over their legal and political order, a new constitutional architecture will be as significant for the developing European polity as a flourishing discursive democracy.
Keywords: EU, constitutional law, constitutionalism, political philosophy, political theory
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