The Metabolic Constitution: Legitimate Compulsory Mobilization and the Limits of EU Legal Pluralism

Forthcoming, Gareth Davis and Matej Avbelj (eds) Research Handbook in Legal Pluralism in EU Law (Elgar)

18 Pages Posted: 5 Jul 2017

See all articles by Peter L. Lindseth

Peter L. Lindseth

University of Connecticut School of Law

Date Written: June 29, 2017

Abstract

The primary function of a constitution, whether written or unwritten, is not to constrain power but, in fact, to ‘constitute’ it. What does this mean? What are the normative or practical implications of this ‘constitutional’ phenomenon? At its core the constitution of power entails the sociopolitical emergence of mechanisms to extract and redirect (‘mobilize’) human and fiscal resources in a legitimate and compulsory fashion. Legitimate compulsory mobilization is the crucial element in the political metabolism of a community, converting social and economic resources into work for public ends. This ‘metabolic’ function, if you will, is the essential element of any genuinely ‘constituted’ public authority. It is also, as this chapter elaborates, crucial to understanding the nature and limits of the legal and political order of European integration. The European Union (EU) is marked by two features operating in persistent tension. First, the EU enjoys extensive rulemaking, enforcement and adjudicative powers conferred by the member states by way of the treaties. Second, the EU possess little or no autonomous capacity to mobilize fiscal and human resources in its own right. Consequently, even as the EU has come to enjoy extensive normative-regulatory power (hence giving rise to a highly pluralist legal system), the ultimate authority to mobilize fiscal and human resources in the EU system has remained stubbornly and overwhelmingly national. In the EU system, in other words, the metabolic function is still distributed among the governing bodies (notably legislatures) of the member states. This distribution of power – vertically ‘multilevel’ in a legal and regulatory (i.e., administrative) sense but horizontally ‘polycentric’ in a robustly democratic and constitutional sense – has had profound implications for the nature of the integration process since its inception. Moreover, this odd combination of autonomy from, yet dependence upon national forms of ‘constitutional’ government is also crucial to defining what the EU’s legal-pluralist regulatory system can realistically achieve. These limits, as well as the EU’s deeper ‘administrative, not constitutional’ character, have been especially clear in the various crises that have persistently confronted the integration process over the last decade.

Suggested Citation

Lindseth, Peter L., The Metabolic Constitution: Legitimate Compulsory Mobilization and the Limits of EU Legal Pluralism (June 29, 2017). Forthcoming, Gareth Davis and Matej Avbelj (eds) Research Handbook in Legal Pluralism in EU Law (Elgar), Available at SSRN: https://ssrn.com/abstract=2995296

Peter L. Lindseth (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States
860-570-5392 (Phone)
860-570-5242 (Fax)

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