This paper argues that the notion of constitutional time is crucial to a critical analysis of the relationship between the rule of law and democracy in the EU. Competing conceptions of constitutionalism beyond the State are analysed here through the lens of different configurations of time. In fact, as observed by Waldron, the rule of law in itself is inevitably a contested concept and many of its weaknesses resurface in any study of the rule of law beyond the State. It is by assessing the weight that the main approaches confer upon the iterative quality of democracy that it is possible to identify the limits, contradictions and ambitious promises of any effort to transpose the rule of law beyond its State-sovereigntist confines.
At a time when the project of integrating European states through the rule of law is faltering, this paper aims to recover new theoretical resources for invigorating law’s philosophical grounding and its institutional resilience. Complementing scholarship that has turned to different substantive narratives of European integration, the paper considers narrative thinking itself as a mode of post-national social integration, one for which law is essential. Narrative thought—precisely through the lawyerly tool of analogical reasoning—‘slows’ the experience of political time, training one to acknowledge the interdependence of one’s political life among that of others. Drawing on critical legal studies and law and literature, this paper suggests a theoretical framework for more sensitive European jurisprudential practice, at once able to remedy tendencies toward fragmentation, and to retain the EU’s heterarchical character; in short, to think what it means ‘to be together’ differently.
This paper argues that the recent efforts of European constitutional scholars to reinterpret the EU polity on the basis of new narratives requires a shift from abstract narratives to concrete storylines. For this purpose and drawing from the insight of the law and literature scholarship, this article will examine the Laval case, decided by the European Court of Justice, from the point of view of Habermasian deliberative democracy theory. Through this new approach of analyzing the case-law of the European Court of Justice, this article will not only display how recent efforts by European constitutional scholars to re-narrate the EU polity as deliberative democratic entity can be authenticated by concrete storylines. Moreover, the analysis of the Laval case through such philosophical eyeglasses will fundamentally challenge the conventional manner through which we usually read and assess judgements of the European Court of Justice.