Constitutionalization of European Law by European Courts: Legitimate Constitutional Moments?
13 Pages Posted: 31 Jul 2018 Last revised: 3 Mar 2020
Date Written: July 11, 2018
The present chapter explores the legitimate role of the two European courts in the constitutionalization of European law, in light of prominent discussions about ‘constitutional moments.’ In particular, this contribution considers possible lessons from Ackerman’s claims that the US constitution has undergone drastic changes at several ‘extra-constitutional’ ‘constitutional moments’. Ackerman argues that several features serve to legitimate the changes. Several of these issues also merit attention as concerning the constitutionalization of European – and possibly International – Law. What would count as such a phenomenon of constitutional change? How might we identify any decisive events that brought such changes – the ‘constitutional moments’ of ‘extraordinary politics’ that concern Ackerman? And what features of such ‘extra-constitutional’ events bestow legitimacy on the changed constitution? These issues are particularly important for any such ‘constitutional moments’ in the constitutionalization of international law, due to two features of the main agents of such changes: Treaty may develop beyond what states are constitutionally authorized to consent to; and international courts are often challenged as to their own legitimacy.
Keywords: constitutionalization, human rights, EU, international courts
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