Working Through 'Bitter Experiences' Towards Constitutionalisation. A Critique of the Disregard for History in European Constitutional Theory: Are Those that Forget the Past Doomed to Repeat its Mistakes? A Comment on Christian Joerges
European University Institute Law Working Paper No. 2005/14
32 Pages Posted: 15 Jun 2006
Date Written: December 2005
The defeat European constitutionalism has experienced in the French and the Dutch referendum has many reasons. The deficiency this contribution addresses is the lack sensitivity for the historical dimensions of the integration project in general and the darker legacies of law in particular. Three exploratory steps are undertaken: (1) The first deals with the diversity of European pasts. It is submitted that European constitutionalism must respect this diversity and promote toleration rather than homogeneity. (2) The second discusses the presence of European pasts in two fields. One is the controversy over "social Europe" which is traced back to divergent national histories, memories and anxieties. The other concerns the search for a European identity and citizenship. (3) The reluctance of Europeans to confront the darker side of their pasts, including the failures and fragility of law and legal institutions, has many good and bad reasons. We risk getting involved in a bitter politicisation of our memories. The contest over memories seems, however, not only unavoidable; it might become a constructive exercise. The search for a new future in post war Europe was a response to the atrocities of the Nazi period. That legacy is still alive and can be revitalized. The readiness to face Europe's past can be understood as a European vocation which may provide the integration project with an unheard of specific legitimacy. In his comment Dario Castiglione discusses Christian Joerges's ideas of deliberative supranationalism and of the 'conflict of disciplines'; and suggests that his analysis of the relevance of the past can be extended by distinguishing between three different modes in which the past can be used: as present in the modern predicament; as a form of public discourse; and as a way of shaping and confronting one's own identity.
Keywords: constitution building, European identity, legitimacy , Nation-state, supranationalism, European citizenship, supremacy, social policy, European Convention
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