Constitutional Values as Legitimation Formulas: a systems theoretical critique

Constitutional values are too unstable and conflictual to provide for normative foundations of constitutional organisations. Values actually may become sources of legitimacy deficits and even illegitimacies themselves. National and post-national constitutions, therefore, require further institution-building and constitution-making to transform values into autonomous structures and semantics such as constitutional rights and supranational or transnational constituent polities. Following Luhmann’s statement that ‘all value lists are waiting lists’, I address the problem of constitutional values as a problem of their temporality. However, it does not mean that constitutional legitimacy is exclusively achievable by legal procedures and entirely depends on their efficiency. Constitutions incorporate values which are internally operationalised and reformulated as intrinsic values of legality, yet remain external to the purely technical concepts of constitutional law and politics.

Constructing the Global Constitutional Canon: Authority and Criticism in Comparative Constitutional Law

With the surge of right-wing populism in many parts of Europe and the United States, the prospects of democratic constitutionalism appear once again at risk today. Yet, in spite or perhaps because of it, comparative constitutional law is doing well. With our success, new challenges and questions have arisen. As a discipline, we must debate where to go from here and how comparative constitutional law can contribute to addressing the challenges we confront today. Crises are often productive moments – and thus it is important, in spite of our current sense of urgency, to pause a moment to reflect our own foundations and normative commitments to make sure the castles we build today are not of sand. A good way to addressing these question is to engage with the idea of a canon in comparative constitutional law. What, if any canonical texts are there perhaps already in our field, do we need a canon or are canons an outdated concept – and if so, what do mean by that.

Canon construction as an interpretive exercise: A critical perspective

This paper argues that we should look at the project of canon construction as not merely a descriptive, but an interpretive exercise (channeling Dworkin) — and we should think carefully about how matters of experience and perspective (i.e. who is at the table) will shape what counts as canonical, and what cases are part of the canon. It aims to bring some recent projects on rewriting judgments from a feminist and postcolonial perspective into the debate on canons as a way of challenging the existing canon of leading judgments.

A Constitution with Multiple Judicial Voices: The Challenge of Canon Construction in European Constitutionalism

The purpose of my paper is to rethink the narrative and the theory of the legal order of the European Union by investigating the relationships formed among the supreme (constitutional) courts of EU Member States in the process of application of EU law. In particular, the paper looks at the increasing practice of national supreme courts to refer to each others’ legal reasoning when ruling on questions of EU law. I refer to this practice as the ‘multilogue’, given its horizontal and multilateral character. I hope to demonstrate the ways in which this multilogue influences the direction of European integration, both positively and negatively, and shapes the EU’s constitutional identity through increasing the power of national courts to influence the development of EU law.