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Essay: Postnationalism, (Dis)organised civil society and Democracy in the European Union: Is Constitutionalism Part of the Solution or Part of the Problem?

Published online by Cambridge University Press:  06 March 2019

Mike Wilkinson

Abstract

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The idea of a European constitution has been a constant refrain in academic and political discourse on European integration, and has recently gathered considerable momentum due to the intervention of politicians and the media and its explicit institutional recognition in the Laeken Declaration on the Future of the European Union. If much of the debate is characterised, tainted even, with a top-down logic of legal-constitutional engineering - a logic which arguably flows from the elitist political roots and philosophy of the project itself - there is nevertheless a growing tendency to examine the theoretical alternatives through which a more open and inclusive constitutional process might be understood. There is considerable irony in an endeavour to ‘democratise’ a postnational polity through a constitutional settlement, brought out when the theoretical underpinnings of the constitutional movement are laid bare, and the alternatives to a hierarchical or legocentric understanding of constitutionalism's reach are examined. The purpose of this paper is to suggest some of the possible pitfalls in a constitutionalist position fixated on a hierarchical or federal arrangement, and highlight some theoretical alternatives which appear accommodating, even demanding, of a more bottom-up approach and conducive to a radical inclusion of civil society, both organised and disorganised, in the structures of constitutional construction and negotiation.

Type
Research Article
Information
German Law Journal , Volume 3 , Issue 9: Special issue - The War on Terror - One Year On , September 2002 , E2
Copyright
Copyright © 2002 by German Law Journal GbR 

References

It should be emphasized that the papers presented at the conference, some of which I have quoted in this article, were very much ‘work in progress’ and therefore the views expressed should be considered as provisional.Google Scholar
The Declaration establishing a Convention on the Future of the European Union, established in December 2001 in Laeken, and which continues its deliberations into 2003, includes a section entitled “Towards a Constitution for European citizens”. It has sparked a good deal of media and academic interest. For an up-dated overview of the impression this self-styled ‘Constitutional Convention’ has made in the various national media, visit http://conventionwatch.iue.it.Google Scholar
For an elaboration of this idea in terms of European integration, see Z. Bankowski and E. Christodoulidis “The European Union as an Essentially Contested Project” (1998) 4 European Law Journal 341.Google Scholar
Kay, R., “American Constitutionalism” in L. Alexander (ed.) Constitutionalism: Philosophical Foundations (1998, Cambridge, CUP), 16-63 at 16.Google Scholar
See N. Walker “The Idea of Constitutional Pluralism”, (2002) 65 Modern Law Review 317-359 at 317, quoting P. Haberle, “Verfassungsentwicklungen in Osteuropa – aus der Sicht der Rechtsphilosophie und der Verfassungslehre,” (1992) 117 Archiv des offentlichen Rechts 169 – 211, at 270. Whilst noting, empirically, the expansion of constitutionalism, Walker's paper highlights the “unprecedented range and intensity of attacks that constitutionalism has also faced,” in the recent conceptual and normative discourses.Google Scholar
This is examined in some detail below.Google Scholar
The problem of boundaries is an intriguing one, and has been the subject of much recent discussion. Quite simply democratic theory is ‘paralyzed’ when dealing with the determination of its own scope, a paradox that is not necessarily resolved if we assume a deliberative model of democracy, see H. Lindahl “Sovereignty and Representation in the European Union”, in N. Walker (ed.) Sovereignty in Transition (forthcoming, Oxford: Hart). Arguably the paradox of democracy extends to its substance, given that as Michelman argues, it is “absolutely not possible to appoint democracy to decide what democracy is”, F. Michelman Brennan and Democracy (1999, Princeton: Princeton University Press), quoted in Sabel and Gerstenberg, “Directly Deliberative Polyarchy: An Institutional Ideal for Europe”, in C. Joerges and R. Dehousse (eds) Good Governance in Europe's Integrated Market (2002, Oxford:OUP) 289 - 343.Google Scholar
This primarily refers to the supra-state level, although there is of course also a considerable amount of pressure to recognize sub-state entities such as regions in constitutional terms, which might be part of a ‘postnational’ settlement.Google Scholar
See J. Weiler, “We Will Do, and Hearken” Reflections on a Common Constitutional Law for the European Union, in R. Beiber and P. Widmer (eds) The European Constitutional Area (Zurich: Schulthess, 1995).Google Scholar
Sabel, C. and Gerstenberg, O., “Directly Deliberative Polyarchy: An Institutional Ideal for Europe”, in C. Joerges and R. Dehousse (eds) Good Governance in Europe's Integrated Market (2002, Oxford: OUP).Google Scholar
Gerstenberg, O., “The Judicial Enforcement of Constitutional Essentials and the Role of Private Actors: The Case of EU-Constitutionalism”, paper to Law and (Dis)organised Civil Society Conference, Florence June 2002.Google Scholar
See Cotterrell, R., Law and Community: A New Relationship? (1998) Current Legal Problems 367-391 for an interesting examination of the changes to sociological conceptions of law and legal pluralism engendered by the recent transformations of political community. He notes that “if the image of the social remains law's familiar image of imperium, difficult questions present themselves as to how law's hierarchy of authority is to be understood, including the relationship between national and transnational legal authorities and law-creating agencies and their jurisdictions” (388).Google Scholar
See C. Offe, “Homogeneity and Constitutional Democracy: Coping with Identity Conflicts through Group Rights,” Journal of Political Philosophy 6, no. 2 (1998) 113-141.Google Scholar
See the speech of Fischer, J., given in the Humboldt University Berlin on 12 may 2000, and responses in C. Joerges, Y. Meny and J. H. H. Weiler (eds) What Kind of Constitution for What Kind of Polity? (2000, Florence, Robert Schumann Centre). V. Giscard D'Estaing, Chairman of the Laeken ‘Convention', has also made comparisons to the Philadelphia Convention which gave birth to the US constitution.Google Scholar
Habermas, J. So, Why Does Europe need a Constitution?, Robert Schumann Centre, European University Institute, 2001 and “Why Does Europe Need a Constitution” (2001) 11 New Left Review, 5-26.Google Scholar
Few openly advocate a European (super-)state. Although see F. Mancini “Europe: The Case for Statehood” (1998) 4 European Law Journal 29-42 for a notable exception.Google Scholar
See, for example, The Economist, 28 October 2000. N. Walker makes this point.Google Scholar
See Frankenberg, G., “Tocqueville's Question: The Role of a Constitution in the Process of Integration” (2000) 13 Ratio Juris 1 for a detailed analysis of the different links between constitutionalism and integration.Google Scholar
Habermas, J., Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (1996 Cambridge MA: MIT Press). For a concise summary of the resolution of the tension between constitutionalism and democracy, see “On the Internal Connection Between Democracy and the Rule of Law (1995) European Journal of Philosophy, 12- 20.Google Scholar
See Schmalz-Braun, R., “Democratic Governance and Globalisation” (2001) 4 Constellations 554-568 at 556.Google Scholar
ibid, 566-567.Google Scholar
Habermas, J., The Inclusion of the Other: Studies in Political Theory, C. Cronin and P. de Grieff, (eds) (1998, Cambridge: MIT Press) 158.Google Scholar
ibid, 159.Google Scholar
ibid, 161.Google Scholar
For two interesting and different critical commentaries on the recent work of J. Habermas from the perspective of his own earlier work and critical project, see J. McCormick, “Habermas on the European Union: Normative Aspirations, Historical Assumptions, Empirical Questions”, paper prepared for presentation at the conference, Philosophy and Social Science 200, Prague (12 May 2000) and D. Cook, “The Talking Cure in Habermas’ Republic”, (2001) New Left Review 135.Google Scholar
See McCormick, J., ibid.Google Scholar
See Cook, D., n 25 above.Google Scholar
Accordingly, it might be considered that “constitutionalism as a metaphor for the apex of an internal legal order organised in a hierarchical manner to regulate ‘external’ society according to a similar ‘top-down’ command logic, is the crowning conceit of a legocentric model of social engineering” (N. Walker, n 5 above).Google Scholar
See Cederman, L., “Nationalism and Bounded Integration: What it would Take to Construct a European Demos” (2001) 2 European Journal of International Relations 139-174 for an examination of the essentialist and constructivist opposition to a postnational movement. For him essentialism refers to the belief that “each ethnic core produces a political identity more or less straightforwardly”, 142. A variant might be associated with the GFCC in the Maastricht decision, the court, arguably basing “democratic demos on a cultural-organic view of identity”, see H. Lindahl, “European Integration: Popular Sovereignty and a Politics of Boundaries (2000) 3 European law Journal 239-256 for a discussion of this.Google Scholar
This expression comes from Sabel, C. and Gerstenberg, O. “Directly Deliberative Polyarchy: An Institutional Ideal for the European Union”, n 10 above. It is examined in more detail below.Google Scholar
Grimm, D., “Does Europe Need a Constitution?” (1995) 1 European Law Journal 282-302.Google Scholar
Essentialism here refers the belief that cultural communities must always precede political and constitutional ones. See n. 29 above.Google Scholar
Walker, N., no 5 above, 322.Google Scholar
Weiler, J., “Federalism without Constitutionalism: Europe's Sonderweg” in Nicolaidis, K. and Howse, R. (eds) The Federal Vision: Legitimacy and Levels of Governance in the US and the EU (2001, Oxford: OUP) 54-72.Google Scholar
See also Weiler, J., “Demo, Telos, Ethos and the Maastricht Decision” (1995) 1 European Law Journal Google Scholar
Walker, N., n 5 above, 324-331.Google Scholar
Walker, N., n 5 above, 324.Google Scholar
See Chistodoulidis, E., “Law and the framing of postnational civil society”, paper to Law and (dis)organised civil society conference, (2002, Florence, EUI).Google Scholar
ibid.Google Scholar
ibid.Google Scholar
Walker, N., n 5 above, 331.Google Scholar
This body of work is self-consciously inspired by the alternative enlightenment tradition of Foucault, and so in some sense departs at a fundamental level from the thinking of J. Habermas. See, for example, J. Tully, “To Think and Act Differently: Foucault's Four Reciprocal Objections to Habermas”, in D. Owen and S. Ashenden (eds) Foucault contra Habermas: Recasting the Dialogue Between Genealogy and Critical Theory (1998, London: Sage).Google Scholar
Walker, N., n 5 above, 13.Google Scholar
For an interesting argument to this effect, questioning and refuting a necessary affinity, often assumed, between capitalism and the rule of law, see W. Scheuerman, “Globalisation and the Fate of Law” in D. Dyzenhaus (ed.) Recrafting the Rue of Law (1999, Oxford: Hart).Google Scholar
Tully, J., quoted in Walker, n 5 above, 330.Google Scholar
This is a reference from Siedentop, L., Democracy in Europe (2001, Columbia University Press) at 22.Google Scholar
Sabel, C. and Gerstenberg, O., “Directly Deliberative Polyarchy: An Institutional Ideal for Europe”, in C. Joerges and R. Dehousse (eds) Good Governance in Europe's Integrated Market (2002, Oxford: OUP).Google Scholar
Gerstenberg, O., “The Judicial Enforcement of Constitutional Essentials and the Role of Private Actors: The Case of EU-Constitutionalism”, paper to Law and (Dis)organised Civil Society Conference (2002, Florence: EUI).Google Scholar
Sabel, C. and Gerstenberg, O., n 47 above, 7.Google Scholar
Also sometimes referred to as agonic democracy and agonistic pluralism.Google Scholar
S. Benhabib recognising a trend of agonistic thinking in democratic theory, opposes it to both liberalism and republicanism and also the proceduralism of J. Habermas, see Introduction in S. Benhabib (ed.) Democracy and Difference: Contesting the Boundaries of the Political (1996, Princeton University Press). For other examples of the influence of this way of thinking see: C. Mouffe, The Paradox of Democracy (2000, London: Verso); I.M. Young, Inclusion and Democracy (2000, Oxford: OUP); J. Tully, Constitutionalism in an Age of Diversity (1995, Cambridge: CUP); J. “Tully, The Agonic Freedom of Citizens” (1999) 28 Economy and Society 161-182, N. Walker, op. cit. no. 3, 49.Google Scholar
Tully, J., “The Unfreedom of the Moderns in Comparison to their Ideals of Constitutional Democracy” (2002) 65 Modern Law Review, 204- 208.Google Scholar
ibid, 213.Google Scholar
Tully draws on a distinction between the ‘freedom of the Moderns', broadly associated with the rule of law and the ‘freedom of the Ancients', broadly associated with democratic freedom and participation.Google Scholar
ibid, 217.Google Scholar
ibid, 218.Google Scholar
ibid, 219.Google Scholar
ibid, 220.Google Scholar
For the full text of the Charter of Fundamental Rights of the European Union, visit http://europa.eu.int/comm/justice_home/unit/charte/index_en.html.Google Scholar
I owe this point to N. Walker.Google Scholar
See Tully, J., Strange Multiplicity: Constitutionalism in an Age of Diversity (1995, Cambridge: CUP).Google Scholar
Ibid.Google Scholar
See DeWitte, B., “The Closest Thing to a Constitutional Conversation in Europe: The Semi-Permanent Treaty Revision Process,” in P. Beaumont, C. Lyons and N. Walker (eds) Convergence and Divergence in European Public Law, (2002, Oxford: Hart).Google Scholar
Shaw, J., “Postnational Constitutionalism in the European Union” (1999) 6 Journal of European Public Policy and “Process and Constitutional Discourse in the EU” (2000) 27 Journal of Law and Society, 4. Also in the EU context, Tully's ideas influence the work of R. Bellamy, see “The Right to Have Rights: Citizenship Practice and the Political Constitution of the EU” in R. Bellamy, and A. Warleigh (eds), Citizenship and Governance in the EU, (2001, London: Verso).Google Scholar
Shaw, J., “Process, Responsibility and Inclusion in EU constitutionalism: The Challenge of the Convention on the Future of the Union”, 4, paper in preparation for a Walter Hallstein 100th birthday commemorative volume, presented at Law and (Dis)organised Civil Society Conference, (2002, Florence, EUI).Google Scholar
ibid, 5.Google Scholar
See n. 47 above. See also Cohen, J. and Sabel, C. “Directly Deliberative Polyarchy” (1997) 4 European Law Journal 313-42, J. Cohen, “Reflections on Habermas on Democracy” (1999) 12 Ratio Juris 385-416 and O. Gerstenberg “Law's Polyarchy: A Comment on Cohen and Sabel” (1997) 4 European Law Journal 343-58.Google Scholar
ibid.Google Scholar
ibid. This resonates with the earlier discussion about the extent to which the empirical force of constitutional patriotism is historically accurate.Google Scholar
Sabel, C. and Gerstenberg, O., n 47 above.Google Scholar
ibid.Google Scholar
ibid.Google Scholar
ibid.Google Scholar
ibid.Google Scholar
ibid.Google Scholar
Charles Pierce, William James and John Dewey.Google Scholar
Gerstenberg, O., “The Judicial Enforcement of Constitutional Essentials and the Role of Private Actors: The Case of EU-Constitutionalism”, paper to Law and (dis)organised Civil Society Conference (2002, Florence, EUI)Google Scholar
ibid.Google Scholar
ibid.Google Scholar
ibid.Google Scholar
ibid.Google Scholar
This is particularly striking in the face of Tully's earlier focus on the cultural aspect of constitutionalism in Constitutionalism in an Age of Diversity, n 61 above.Google Scholar
See Schmalz-Bruns, R., “Democratic governance and Globalisation” (2001) 8 Constellations, 565.Google Scholar
We are reminded of I. Ward's critique of the insufficiency of constitutionalism in the absence of a European political imagination. See I. Ward, “Beyond Constitutionalism: The Search for a European Political Imagination” (2001) 7 European Law Journal, 24-40. Bearing in mind Weiler's forceful critique (see paragraph 11 above) the substance of postnationalism need not and ought not be rooted in an ‘organic’ identity reminiscent of national integration. Weiler himself has examined the notion of civic demos in European citizenship. For an examination of a (Kantian) cosmopolitan identity see P. Eleftheriadis, “The European Constitution and Cosmopolitan Ideals” (2001) 7 Columbia Journal of European Law, 21-39.Google Scholar
A concept which hasn't been examined in any detail here but which perhaps sits at a crossroads between the universal idea of abstract reason and the substantive interpretation of a particular community is the concept of rights, which has played a significant role in the construction of a European constitutional identity. It is worth noting that the recent drafting of a Charter of Rights Elaboration of the Charter of Rights itself shows how a more open, inclusive and media-responsive constitutional process might be generated- see G. de Burca, “the Drafting of the EU Charter of Fundamental Rights”, (2001) 26 European Law Review, 126. In terms of European institutions the concept of rights provides an interesting test case for the balance between unity and diversity that is sought in a constitutional framework.Google Scholar