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(p. 382 ) Part Six European Constitutional Law

Source:

Comparative Law as Transnational Law

Publisher:

Oxford University Press

(p. 383 ) In 1995, Dieter Grimm, then a Justice of the Bundesverfassungsgericht (German Federal Constitutional Court) and a highly regarded public law scholar, famously posed the question: Does Europe need a constitution? His court’s repeated, high-profile confrontations with the domestic constitutional implications of the European project gave Grimm’s reticence exceptional gravity. In a widely discussed speech delivered at Humboldt University in Berlin, in May, 2000, German Foreign Minister Joschka Fischer answered Grimm’s question with an authoritative yes. After cataloguing the difficulties confronting the project of European integration, Fischer explained that the only viable solution would be “the transition from a union of States to full parliamentarization as a European Federation.” That remarkable future, Fischer admitted, “will have to be based on a constituent treaty” that “constitutionally enshrines” the principle of subsidiarity. Later still, the German philosopher Jürgen Habermas influentially argued that, more than a concrete constitution, Europe needed to undertake a formal constitutional process as the means for nurturing the constitutional prerequisite of a shared European civic identity.

Given the especially significant German engagement with the subject of a European constitution represented by these prominent examples, it was only natural that the German Law Journal (Journal or GLJ) should have published so much compelling commentary on the question, especially as the Journal’s first decade coincided with the dramatic political events that fueled the theoretical debate: The summons from Laaken in 2001, to pursue a constitutional project; the work of Giscard d’Estaing’s convention; the triumphal endorsement of the constitutional treaty by European heads of state in Rome, in 2004; the treaty’s surprising defeat in ratification referenda in France and Holland, in 2005; the anxious “period of reflection” that led to the promulgation of the more modest Lisbon Reform Treaty, in 2007; Ireland’s initial rejection but eventual ratification of the Lisbon Treaty; and the Lisbon Treaty’s entry into force, in December 2009.

The following selection of German Law Journal contributions traces or theoretically informs the recent history of European constitutionalism. It also is another fascinating example of the transnational encounters captured by the German Law Journal. More than with other themes, however, the Journal’s coverage of European constitutional law closely aligns with traditional scholarly conceptions of transnational law in that these pieces address the possibility of a constitutional order for Europeans—a constitutional order that transcends national frontiers. The prospect of decamping constitutional law to a supranational level inherently involves jurisprudential encounters among the many national constitutional traditions touched by that process. That process also involves a dramatic encounter between firmly held visions of constitutionalism: One that sees the constitutional jurisprudential tradition as indivisibly bound to the state as a political form and the other that can imagine constitutionalism operating beyond the state on supranational or even international planes.

(p. 384 ) Matej Avbelj’s article, from 2008, helpfully frames an approach to the subject by offering a definition of constitutionalism generally and providing a taxonomy of “EU constitutional narratives.” Indeed, Avbelj sees “many EU constitutionalisms” convening and influencing one another as a transnational encounter.

Morag Goodwin’s 2002 essay reviewing the book Welche Verfassung für Europa? (What Constitution for Europe?) joined the narrative shortly after the Convention on the Future of Europe began its work drafting a constitution. The book under review is a collection of interdisciplinary essays on the prospects and possible problems confronting European constitutionalism. Thus, Goodwin’s survey of the different voices published together in the book provides an invaluable introduction to the contending perspectives that still dominate the debate, including the fundamental dispute over whether a constitutional process is inherently political or might, itself, be a jurisprudential phenomenon. Goodwin’s review is representative of the many book reviews the German Law Journal has published that treat the literature that surrounds the debate over European constitutionalism.¹

One of the criticisms Goodwin raises in her review is that the contributions to the book, even accounting for the fact that it was published in German by German editors, are almost myopically preoccupied with the German theoretical debate over European constitutionalism. As Goodwin notes, this is partly due to the prominence of the leading contributors to the debate, not the least including former Federal Constitutional Court Justice Dieter Grimm. Grimm’s skepticism toward a European constitution should not be interpreted, however, as skepticism for the European project more generally. Rather, a more fundamental suspicion of the European Community and the (p. 385 ) European Union was championed by Justice Paul Kirchhof, Grimm’s colleague on the German Federal Constitutional Court. Kirchhof’s successor on the constitutional court, Justice Udo Di Fabio, has maintained a tradition of Euro-caution in a large corpus of theoretical scholarship and during his service as Reporting Justice in a number of cases in which the Constitutional Court mapped sometimes controversial limits to deepening European integration. The most sensational example of the latter might be the Lisbon Treaty Case decided in 2009, in which the constitutional court upheld Germany’s ratification of the Lisbon Reform Treaty, but seized the opportunity to underscore two dramatic limits to the European project. First, the Court’s Second Senate emphasized the treaty (that is, the international law) as opposed to the constitutional orientation of the Lisbon regime. Second, the Court’s Second Senate declared that the political integration achieved by the Lisbon Treaty marked the ceiling of allowable integration under the existing German constitutional framework. The German Law Journal published a special issue on the Court’s controversial Lisbon Case judgment just days after the decision was issued.² The German Law Journal is privileged to have been the forum in which Justice Di Fabio has published some of his rare English-language commentary (and in which others have commented in English upon his work), including the essay, from 2004, that is reproduced here, in which Justice Di Fabio uses a reproving tone in an assessment of the draft European constitution.³

Both Justices Grimm and Di Fabio, with distinct emphasis and tone, note that the European demos—or civic identity—is inadequate to justify a constitution. Europe is too linguistically and culturally fractured to constitute what Grimm calls the required collective identity. But Justice Grimm is diagnosing the state of affairs in 1995. He does not rule out the possibility of the gradual emergence of a European public, although he cautions that it will take far more time than the thoroughly Europeanized continental elites assume, and he worries that rushing into a European democratic process might actually exacerbate the deficiency. Justice Di Fabio, by contrast, is not as convinced of the possibility of a European political identity because he sees many central elements of public and political life as still more closely linked to “Member States’ spheres of identity . . . and national cultural spheres.”

Jürgen Habermas long agreed that the civic foundation for a European constitution did not yet exist. But he was convinced that increasing the volume and quality of European democratic processes, almost despite the absence of the necessary demos, would virtuously generate the missing European identity. If you build it, he urged, they (p. 386 ) will come. But the massive protests against the American-led invasion of Iraq that gripped European capitals, in February, 2003, suggested such a commonality of values and civic action that he dared argue that, in its shared opposition to American military and economic hegemony, Europe had found its constituent identity. The procedural path to identity formation was having its effect, particularly as it unfolded as the public discourse contributing to the creation of a European constitution. In an essay from 2009, Russell Miller calls into question Habermas’s conclusions about a European identity. Miller argues, by reference to Ian McEwan’s novel Saturday, that Habermas overlooked the rich, persistent diversity that Miller sees as the true wonder of Europe.

The German Federal Constitutional Court’s historic hesitance toward Europe, and the commentary of jurist-scholars like Justice Kirchhof and Justice Di Fabio, can be taken as representative of a state-centric approach to constitutionalism that conflicts with the supranational constitutional aspiration of some Europeans. As we suggested earlier, the confluence of these approaches in the debate over European constitutionalism—often in the pages of the German Law Journal—constitute a kind of transnational encounter.

Alexander Somek’s 2007 essay speaks honestly and clearly about the legitimacy deficits that were exposed by the failure to ratify a European constitution, in 2005, and the elite-driven project to resurrect the salvageable parts of that agenda through the less-ambitious Lisbon Reform Treaty. The result, he says, is an ambiguous “postconstitutional ordering [that] is a mixture of the absence of” international law and constitutional law.

Maria Cahill, drawing in part on Habermas’s constitutional proceduralism, has twice written for the German Law Journal to defend, even from a perspective that can be characterized as “pro-European,” the ratification failures in the European constitutional narrative. As noted in the timeline above, the European Constitution was defeated in referenda in France and Holland; the Lisbon Treaty initially was defeated in an Irish referendum. Cahill explained the “constitutional value” of the former “no” in an article, in 2006.⁴ The latter is addressed in this part’s final contribution, Cahill’s article, from 2008. In both pieces, Cahill is acutely aware, as was Somek, of the democratic unseemliness of the European elites’ determination to press ahead with the constitutional agenda in spite of these democratic setbacks. The constitutional value of these respective defeats, as Cahill sees it, is that each served as an invitation for a deeper, more open, more rational discourse in the organic development of the European constitutional project. This opportunity is missed, Cahill argues, if constitutional fundamentalism drives the process toward a predetermined end—and always at the earliest possible date. That more promising discourse, Cahill suggests, would require Europeans—again and again—to grapple with the very “personal decision about who we are and how we want to organize our living-in-common.” At least two dominant answers to that question are evident in this survey of German Law Journal commentary on European constitutional law (although Avbelj smartly suggests (p. 387 ) many others): Constitutionalism, because of its relationship to a shared civic identity, is immutably linked to the state; and it is attributable to the European project because such a European civic identity is imaginable or because the constitution’s more essential functions of subordinating public authority and securing individual liberty already have been achieved at the European level. The productive conflict between these answers—a rich kind of transnational encounter—seems certain to continue in the pages of the German Law Journal.