The Constitutional Imaginary and the ‘Metabolic’ Realities of European Integration

Abstract

Understanding the European Union (EU) as an autonomously constitutional entity—what this volume evocatively calls the EU’s ‘constitutional imaginary’—has been central to judicial decision-making and legal scholarship on European governance over many decades. If our aim, however, is to understand what European governance actually is, rather than what the dominant discourse among lawyers, judges and law professors asserts it should be, then we must consider whether this discourse obscures more than reveals. The constitutional imaginary has primarily served, this chapter asserts, as an ideology that legal elites have deployed in a process of institutional change to overcome Europe’s polycentric, nation-state constitutional realities. The core weakness of this ideology as an agent of change, however, has been its almost exclusive focus on the ‘constraint’ function of constitutionalism rather than on the actual ‘constitution’ of power in a socio-political sense. The latter refers to the capacity of a system of governance not just to produce constraining legal norms but also to mobilise human and fiscal resources in a legitimate and compulsory fashion toward ends that governing bodies select. The construction of this sort genuinely ‘metabolic’ constitution in the EU—one unmediated through the member states—is the true Rubicon that European governance must cross in order to turn its ‘constitutional imaginary’ into a socio-political reality.

Keywords: Constitutional ideology, hysteresis, institutional change, metabolic constitution, power-legitimacy nexus

JEL Classification: F02, F15, H11, K33, N40, N44