Alexander Somek: “Constitutionalization”: A second look at a dogma

Ostensibly, we owe it to Eric Stein and to Joseph Weiler that we have come to perceive the path taken by the EU as a “process” of “constitutionalization”. This interpretation has risen to the level of a dogma of EU law studies. It is based on the idea that a constitution is higher law. But this is questionable. Many things are higher law, and what is higher law vis-á-vis other law is always relative. Owing to the dogma we Europeans turned Marshall’s core idea (law that is constitutional law ought to be higher law) upside down. It is not the case that anything that is higher law is therewith already constitutional law. This is a mistaken belief that is now common sense in Europe. Indeed, it may well be a scandal that to treat that which is not a constitution as higher law in Europe. EU law has come to be what it is in without originating from what Bruce Ackerman would call “higher-law-making processes”. Instead, is the product of judicial fiat and cunning member state acquiescence.

Why read “The Transformation of Europe” today?

Indeed, why? This paper examines the seminal article by Joseph Weiler as a ‘European constitutional imaginary’: a set of ideas that provides the integration project with its utopia, the desired, but never-to-be reached destination. Constitutional imaginaries are however ideological at the same time: they hide from sight structures of power and domination established and maintained by them. Yet, the paper argues, such effects are inevitable and studying Transformation may help us understand why this is so and why originators of various constitutional imaginaries are far from dogmatic ideologues. In particular, the paper identifies Transformation’s links to the American liberal legalism, which after an internal crisis of 1980s got revived on the global scale at the End of History moment as “New Constitutionalism”.

Milward lives!

Contrary to opinions regarding national sovereignty and the EU as antithetic, the article examines the potential for their complementary relationship by drawing from the seminal analysis by Alan Milward. It restates that originally the process of European integration was instrumental to the pursuit of the foundational commitments inspiring national democratic and social constitutional self-government and that only with the crisis of the social state in mid 1970s was European integration re-oriented to transform in neoliberal terms democratic and social constitutionalism. As in the most recent evolutionary phase this trend is maintained and radicalised, Milward’s idea of conceiving European integration with a view to rescue national constitutional self-government may inspire attempts at redressing the contents and structures of EU law.