by admin | Aug 31, 2023 | Book Review
The Brits have decided to exit the European Union in 2016 via a referendum, after which the long process of negotiations and bargaining between the United Kingdom (UK) and the European Union (EU) has started. The Brexit finally happened on January 31 2020, so as from February 1 2020, the UK is not a Member State (hereinafter: MS) of the EU. Brexit has raised several vital questions regarding the withdrawal process, the contractual obligations of the exiting MS and the EU, and the management of the consequences of the decision. Lilla Nóra Kiss has explored the main legal, social and institutional aspects of the withdrawal in her monograph published in 2020. In the following, I address the key findings of her analysis in the light of the happenings of the last three years since the Brexit has been delivered.
Where did it all start?
The United Kingdom held a referendum about its EU membership on June 23, 2016. The Westminster has made an official decision to approve Prime Minister Theresa May to notify the EU about the UK’s intention to exit. Three years later, on January 31, 2020, the United Kingdom officially exited the European Union. Although a referendum on the membership was not a first in the EU’s history, the invocation of Article 50 of the Treaty of the European Union (TEU) was.[R11]
The right to withdraw from the European Union was introduced by the Lisbon Treaty. Although the exit was (and would have been) possible pre-Lisbon as well – based on the general rules of international law – up until the Brexit, this option was used only as an instrument of political pressure or a bargaining chip to achieve temporary political goals. See for example Greece during the Eurozone crisis; or the Netherlands, when a far-right party called for a referendum on EU membership – but the idea was rejected by the Dutch parliament – or in France, when Marine Le Pen has also called for a “Frexit” referendum, but she has not gained significant political traction, and her party was defeated in the 2017 presidential election. Thus, it was a shocking surprise when the Brits had not just expressed their intention to leave via the referendum, but actually have exited the EU 3,5 years later.
Brexit-abouts with the eyes of a lawyer
Brexit has drawn attention to the fact that there is a great deal of uncertainty surrounding the interpretation and practical application of the exit clause. First, Article 50 TEU does not set out a common set of criteria for the making of the decision about the exit. As a result, the decision to withdraw has to be made in accordance with the constitutional requirements of the Member State intending to exit. The respect of national constitutional decision-making is important from a sovereignty point of view, however, it brings uncertainty to the system right from the beginning of the withdrawal process. Is it enough to express the withdrawal intention by a referendum? In several states, the result of the referendum is not binding to the parliament. This is the case in the UK. However, in other states (e.g., in Hungary), the outcome of the referendum is binding to the legislature (if the referendum is valid, legally). So, as in the case of the UK, the referendum is not binding, therefore, the result cannot be considered as a decision to withdraw. That is why a parliamentary decision made in accordance with the British constitutional requirements was needed about the exit before the British Prime Minister – Theresa May – has notified the European Council about the withdrawal intention in March 2017. This is just an example of the open constitutional questions – however, the TEU does not give an answer to these as it gives the room for the Member States.
Secondly, the exit clause did not set up a strict timeline for the withdrawal process. It declares that “The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the [withdrawal] notification, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.” The clause says that the Treaties shall cease to apply, but it does not say that it is equal to the cease of the membership – and not just a termination of rights and obligations arising from the membership. So, it declared a 2-year frame from the notification, but it did not say that an agreement is a must to withdraw, neither it says that lacking an agreement between the EU and the exiting state means the cease of the membership just by the lapse of time. Thirdly, Art. 50 is not clear whether it requires an agreement to withdraw. However, the membership is a contractual relationship between the EU and the Member State. It would be odd (and uncertain) to finish it without an agreement.
Fourth, the exit clause did not list those issues that need to be solved before the withdrawal in general (in case of any state). For example, the key question was the future of the EU citizens who are about to lose their complementary status as EU citizens ipso iure by the fact of the withdrawal. Another key question was the access to the single market by the exiting state, but the Schengen-zone and the border issues were also vital. The financial settlement and the relocation of certain EU agencies are more on the technical side of the negotiations; however, these are not insignificant either. In the case of the UK, a specific question was the settlement of the borders – particularly between Northern Ireland and Ireland given the Good Friday agreement. In the case of a euro-zone state, the exit agreement should also cover the retransition to the national currency from the euro, or the reorganization of the fiscal sovereignty in that certain state.
Moreover, besides the main legal questions mentioned above, there are several political issues – such as the future of the EU integration in a post-Brexit era. A significant aspect of this dimension is the closeness of the integration, so, whether the ever-closer integration process is really getting ever closer or not. Brexit unraveled the fraction between the “old” and the “new” Member States, or with a less fortunate geographical nomination, between Western and Eastern Europe. The old Member States, who have been implementing EU law for over six decades, are reacting differently to policy related harmonization of the national laws than the new Member States who are seemingly more supportive to an economic integration compared to a political union. The political approach towards the supranational power obviously impacts the policy-making as well. Thus, some policy areas are about to change due to Brexit – where the unification of rules were blocked by the UK and small and medium size states and the decision-making is not subject to consensus.
As a result of the uncertainties around the exit clause, examining the legal framework and the conditions for leaving the Union and answer the open questions of the exit procedure were vital.
Framing the Big Brexit Picture – Legal, Institutional, and Social Aspects
The withdrawal was a complex and important historical event with major political, economic, social and policy implications for the EU, and also for the exiting state. It is important to understand what has happened in recent years, what led to Brexit, and what the implications of the exit were and are for both the European Union and the UK, which can help shape the future of the cooperation.
“The main legal, institutional and social aspects of exiting the EU“ is a monograph based on the doctoral dissertation of Lilla Nóra Kiss, successfully defended in November 2019. The 180-page book provides a comprehensive picture of the possibilities of leaving the EU, the practical problems encountered, and suggestions for future solutions. The work does not focus specifically on Brexit but looks at it only as a case study for examining the case of leaving the EU. In preparing this work, the author has carried out a wide range of research in Hungary and abroad, including research in EU institutions and academia, and has consulted with academics and practitioners, making the monograph extremely thorough.
The monograph – in accordance with its objective – is a real niche in both domestic and international literature, which systematically examines the legal aspects of the unprecedented situation of the withdrawal of a Member State from the European Union and presents the withdrawal procedure with a theoretical foundation. The emphasis is on the social processes preceding the exit process, the development of the integration paradigm and the relationship between exit and the development of the integration paradigm, and the analysis of Article 50 TEU. In doing so, the author provides an excellent context for the subject of Member State withdrawal and lays the foundations for understanding the rest of the work.
The monograph is structurally divided into three major sections, which are logically linked to the chronology of the withdrawal of a MS, thus placing the practical and legal issues of the withdrawal procedure and the effects of the withdrawal in chronological order.
The first structural unit refers to the time before Brexit, placing it in context, referring to the development and evolution of integration processes, and the rise of Euroscepticism as a possible cause. Of particular interest is the author’s comparison, through the example of Greenland’s withdrawal from the European Communities, between the withdrawal procedure under international law and the procedure under EU law. The comparison concludes that the TEU, while not completely departing from the norms of international law, brings the withdrawal process within the framework of EU law.
The second part of the work examines the right of withdrawal, the substantive and procedural issues of withdrawal, and the legal nature of the withdrawal agreement. The author makes realistic and necessary de lege ferenda proposals for reforming, clarifying, and supplementing the withdrawal clause which, in my view, are extremely forward-looking and therefore worthy of consideration if the Treaties are amended.
The third section focuses on the issues that arose after the withdrawal of a Member State, the legal status of EU citizenship, and possible changes to the legal institution in the event of a Member State’s withdrawal. As the withdrawal of a Member State has an obvious impact on the free movement of persons, the author suggests that there is a need for a minimum harmonization of national citizenship rules in the Member States − of course, whilst respecting national sovereignty − which would resolve the contradictions and tensions that exist concerning the recognition of dual citizenship. The author’s ambition is also to redefine the rules on EU citizenship. The proposals reveal the author’s humanist approach and her commitment to the principle set out in the introductory section, namely that ‘the vocation of law is to regulate people’s lives in a modern way‘. I am also a believer in the natural law approach, according to which law serves man, and not vice versa. Therefore, when it comes to reforming the Treaties and EU citizenship, it is not only the interests of the Union and the Member States that must be taken into account, but also the interests of EU citizens.
The monograph is logically structured, well contextualized, and follows a coherent train of thought, making it easy to understand. The author’s style is readable, reflecting her point of view, while at the same time being exhaustively precise in her statements and arguments. The monography focuses on the current events of Brexit only to the extent necessary for the analysis, so that it does not make the mistake of basing the assumptions on vague facts, and this allows the work to remain relevant today and in the future.
Conclusion
Brexit demonstrated that a MS could not just vote to leave the EU, but do exit, too. This may have emboldened Eurosceptic and anti-EU movements in other countries, who saw Brexit as a validation of their stances. Brexit also served as a warning sign that discontent could lead to other countries reevaluating their EU membership. Brexit vote was partly driven by a desire to reclaim national sovereignty, other MS facing similar concerns about loss of sovereignty might be inspired to follow a similar path. As a result of the various post-Brexit effects, some argue that Brexit may encourage other countries to leave the EU, while others believe that Brexit may serve as a cautionary tale and persuade the Member States to remain constituents of this elite club. Some have raised concerns about the stability of the EU and the potential for further exits, while others have emphasized the importance of unity and solidarity in the face of this challenge. Either way, it was crucial to clarify clearly how a Member State can leave the European Union.
In my opinion, based on what has happened in the last three years since the Brexit has happened, the British withdrawal only strengthened the continental alliance and put the development of integration on the right track – highlighting the points of potential tension among the Member States – and gave a great opportunity to these states to keep their cooperation working. Right after the Brexit has happened, the COVID-19 has hit globally, and then the Russian war in Ukraine has started (again). All these events brought the EU closer, showing that the countries are better up for continental economic cooperation than dividing based on their differences. Although, there are a lot of tensions and conflicts on the European political map, seemingly, the Brexit has strengthened the internal cohesion of the Member States. Hopefully, there will be no need to apply the procedure again in the future. As a matter of this, Brexit can serve as a good incentive to avoid future breakups by avoiding irrevocable conflicts – or solving them right after their occurance.
Brexit is an important and complex historical event, I therefore recommend this handbook to anyone who wants to understand the legal background and the procedure of leaving the European Union, as it is allowing readers to gain a comprehensive picture of the events and their effects.
Zsuzsanna Mária Nagy, JD, specialized in English legal translation, Analyst at the European Union Research Directorate of the Center for Fundamental Rights. Zsuzsanna’s past and present research focuses on geo-blocking, matrimonial property law in European countries, the use of telecommunications devices in criminal proceedings, EU funding to Ukraine, circular economy, cryptocurrencies, data protection. During her university years she won the National Higher Education Scholarship and the New National Excellence Programme in 2021. She also completed Erasmus+ studies at the University of Salento in Lecce and she completed a Public International Law course at the FernUniversität in Hagen. E-mail: dr.nagy.zsuzsanna.ak@gmail.com
by admin | Aug 15, 2023 | Book Review
These days, due to many rule of law debates going on around the world, especially in Europe (within the EU), the set of principles encompassing that of the rule of law merits examination as well. This set of principles is commonly alluded to as ‘constitutionalism’ and it encapsulates such fundamental principles as separation of powers, protection of human rights, democracy, pluralism, and of course the rule of law. This is how I have been normally approaching the topic of constitutionalism in the classroom for more than 16 years.
It is certain that the paradigm of constitutionalism is shifting, I have previously written about this referring to Thomas Kuhn, historian of science, who defined ‘paradigm’ as “universally recognized scientific achievements that for a time provide model problems and solutions.”[1] Obviously, when we look at constitutionalism, it is easy to see that both our ‘model problems’ and ‘model solutions’ have changed over time under the aegis of constitutionalism, therefore our community of ‘practitioners’ (of science) need to change our paradigms as well. LSE’s Martin Loughlin certainly provides food for thought to this change, with his latest volume published with Harvard University Press in 2022, titled – very suggestively – Against Constitutionalism.[2]
The book focuses on and defines constitutionalism “between legal thought and political practice […] as America’s unique contribution to modern constitutional thought”.[3] Loughlin, however, remains skeptical about the exact meaning of the concept – examined through the lens(es) of the Federalist Papers.[4] In the Preface of the book, he points out that “[t]he problem is that constitutionalism, though often extolled, is rarely defined. It certainly expresses a belief that order, freedom, and justice are best promoted in a regime whose main characteristics are defined by a founding text elevated above the ordinary cut and thrust of politics. Beyond that basic assumption, its meaning remains obscure.”[5] He then turns to an enumeration of its content by taking on its ‘crucial elements’. In Loughlin’s view, these are “imposing curbs on the exercise of arbitrary power, advancing ‘the rule of law’, establishing a regime of limited government, and ensuring that the citizen’s basic rights are protected.”[6] This basically squares away with the “European textbook” definition of content, which I provided above.
But how does then one end up arguing ‘against constitutionalism’?
Loughlin writes that the 18th-century roots of constitutionalism (mostly of American – and French – origin) – as a “purely modern concept”[7] – were created in a revolutionary spirit, intent on overthrowing arbitrary (and in the French case absolutist) regimes in favor of “limited government and maximized individual liberty”. As opposed to this, he makes the argument that the theory and principle of constitutionalism is now used for state-building, developing into a philosophy of government, underpinning executive action.
Loughlin puts his finger on what I now call the ‘lip service problem’ (merely based on a wordcount of this expression in this context) by stating that ruling elites pay lip service to democracy but through referencing constitutionalism, in fact, they are “able to perpetuate their authority to rule”.[8] We can certainly appreciate that there is some truth to this. His point of view unveils that he argues against constitutionalism in this sense (as an ‘aberrant mode of governing’), and for constitutional democracy to be restored, the principle and theory of constitutionalism should be critically analyzed because – over time – it did not remain an exclusively and “distinctively American experiment”.[9]
The first very interesting critical claim he makes is an identitarian one, and therefore interesting to scholars who work with the concept of constitution and identity, or even constitutional identity (both in the American and European sense). Loughlin posits that democracy (understood as a core element of constitutionalism) is transformed by how constitutionalism promotes collective self-government. Therefore, he argues that the “[d]emocracy is no longer to be conceived as an expression of the collective will of a people; it is reconfigured as an expression of the collective identity of a people and, critically, an identity that is permanently inscribed into the foundational principles of the constitution.”[10]
This argument resonates very well with German approaches to the role of democracy in view of constitutional identity, when we consider certain debates in EU integration from the past years. Democracy being a foundation constitutional principle needs to be respected, and if e.g. EU institutions do not take necessary account of offering the chance to a Member State to adequately scrutinize certain EU legal acts, therefore this foundational principle of democracy is violated, i.e. we arrive at the violation of an identitarian element that is – in his words – ”permanently inscribed into the constitution” (i.e. part of constitutional identity as understood in many contemporary European debates, cf. the German Constitutional Court’s PSPP decision for one). (On this issue, further pieces have been published on this platform here, here, and here.)
Next up, Loughlin critically looks at the concept of the constitution and states that it has been transformed – over time – “from a political pact into a medium of societal self-organization,”[11] and at the same time, he enumerates six features it still realizes. The constitution, as the “authoritative expression of the regime’s collective political identity”, in his view, creates a comprehensive, limited, and representative government (with a permanent governing framework), safeguarding individual liberty, which is “supervised by a judiciary charged with elaborating the requirements of public reason.”[12] The book then delves into distinctions between constitutionalism and constitutional government, describes the American project of constitutionalism after being done with European roots rather abruptly, but then returning to them post-WW2, offering a brief laudation of the German Basic Law. Loughlin argues that the Grundgesetz (German Basic Law) was quickly established “as the authoritative expression of the Federal Republic’s collective political identity.”[13] Then he moves on to assess postcolonial efforts of ‘transplanting constitutionalism’, focusing on India’s example. These two countries demonstrate, according to Loughlin, that when a “clean break with the past was required, the project of constitutionalism offered a path to the new world.”[14] In another part of his chronological overview, he details an ‘Age of Constitutionalism’ (see Part III below), where ‘constitutionalization’ is mentioned as a key factor on many levels.
As for the Origins of Constitutionalism (Chapter 1), he examines the concept from early English common law, through Montesquieu, arriving at the modern Idea of the Constitution and Constitutional Authority.
Chapter 2, suggestively is titled The Ideology of Constitutionalism, and he makes the methodological argument that through constitutionalism “we shape a cluster of beliefs and cultural symbols into a meaningful arrangement, thereby making it available for purposive action”,[15] which makes it an ideology – on that, he agrees with Sartori but disagrees with him on many points. On this account, though, since we currently live in an era where European leaders and institutions also seem to use elements of constitutionalism as ideological weapons against certain Member States, I would like to call attention to the subchapter titled The Rule of Law and the Rechtsstaat, pointing to the fact that – between legal thought and political practice (i.e. as the main focus of the book is defined) – the rule of law is a highly ambiguous notion. Next, he tackles separation of powers, in the American and French mold, then sums up the limits of what he class “Enlightenment Constitutionalism”, in which he refers back to the Rule of Law and Rechtsstaat, too.
Chapter 3, The Constitution of What? investigates Loughlin’s argument that constitutionalism and therefore the constitution to which it binds relate to state theory (as a tool of state-building), and then looks at Sovereignty and the State Constitution deriving from said sovereign power.
Chapter 4, The Path to Ordo-Constitutionalism, starts out of current debates regarding the inflation of the administrative state (more simply put “government growth”), which in Loughlin’s view changes the state in a neo-liberal sense, as they were the ones to recognize that “free markets and individual liberty could be preserved only by vigilant governmental action, [therefore] they advocated a new role for the constitution, that of establishing an institutional order that could guarantee the maintenance of a well-functioning market system.”[16] This is what Loughlin calls ’advancing the philosophy of Ordo-constitutionalism’, in recognition of a new role for the constitution, due to the changing character of the state, which he examines in detail next – coming to the conclusion that the ‘era of big government’ (borrowed from President Clinton’s famous 1996 State of the Union speech) is not compatible with ‘reviving constitutionalism’ or at least it is to be a challenging exercise.
In the following, by describing what he calls the Constitution of Liberty, he arrives at presenting his assessment on ‘ordo-constitutionalism’, in the above economic sense, and talks about the importance of an economic constitution (also placed on German foundations), in which effort the state’s essential function (task) is mentioned as maintaining an institutional system for the well-functioning operation of the market system (in the ordo-liberal view). In his words, ordo-constitutionalism is a very popular model these days and it“postulates the establishment of a constitution that imposes duties on public authorities to safeguard the operation of the private market system. Its mantra is ’the free economy and the strong state’”[17] – however, what he means by this is that the state should be constitutionally insulated from becoming an active power player in the economy (economic activity, to be exact.) On this note, I might add that many of our current debates regarding the information economy tackle the same issues regarding the role of the state and its essential functions in regulating commerce and industry under the guise of “digitalization” and the American and European regulatory approaches largely differ in this sense, especially regarding the room for maneuver that should be at the disposal of the state to regulate the market and therefore control the economy.[18]
Part II dissects the elements of constitutional democracy, focusing on constituent power, constitutional rights, and after all, constitutional democracy, while Part III begins with describing what Loughlin calls the Age of Constitutionalism.
In this Part III, Loughlin rebrands the Constitution as a ‘Civil Religion’, he addresses the role of the much-debated concept of Juristocracy, and arrives at the examination of the issue of Integration (of the political community) through Interpretation (by the Judiciary) – and its limits, delving into many aspects in this regard based on the Federalist Papers and seminal instances of SCOTUS case law from Marbury v. Madison to Dredd Scott, etc. as well as many European references. In the following, the writes about A New Species of Law, suggestively, looking at – among others – many Latin American examples of constitutionalism in a broader theoretical context, then shifting focus – in this same context – to a holistic view of emergency situations (and other special regimes).
In the subchapter The Concept of Constitutional Legality, he uses the term ‘invisible constitution’ in a way that needs some clarification from the point of view of a Hungarian scholar, such as the author of this review. In constitutional legal terms, ‘invisible constitution’ has a very specific meaning for Hungarian constitutionalism, as the notion (coined by the first post-Transition President of the Constitutional Court, László Sólyom, in 1990 through a concurring opinion as ‘láthatatlan alkotmány’ ) has become the ‘call-sign’ of judicial activism, describing the key role of a post-transition democratic institution in safeguarding constitutional rights, stabilizing constitutional democracy and the rule of law through interpretation of the constitution and through engagement in ‘gap-filling’ where either the letter of the law or its application was absent or faulty. More exactly, in Decision 23/1990 (X.31.) AB, the Hungarian Constitutional Court declared capital punishment unconstitutional. In a concurring opinion, the then President, László Sólyom, famously wrote the following opinion: “The Constitutional Court has to create its own interpretation on the right to life. In this context, the starting point is the whole Constitution. The Constitutional Court must continue its effort to explain the theoretical bases of the Constitution and the rights included in it and to form a coherent system with its decisions in order to provide a reliable standard of constitutionality – an ‘invisible Constitution’ – beyond the Constitution, which is often amended nowadays [in 1990] by current political interests; and because this ’invisible Constitution’ probably will not conflict with the new Constitution to be established or with future Constitutions. The Constitutional Court enjoys freedom in this process as long as it remains within the framework of the concept of constitutionality.”
Loughlin uses the same expression slightly differently, i.e. to mean that a new species of law emerges, promoting this invisible constitution, meaning that the written constitution is no longer a system of rules, rather a set of abstract principles, articulating the values of the social order. Obviously, the conductor of this transformation is the judiciary as the authoritative interpreter of the constitutional text, so in this sense, it aligns with Sólyom’s arguments for Hungary, but this brings with it the problems, according to Loughlin, that the historical link of legitimacy is broken by the fact that this way the constitution ceases to derive its authority from the constituent power of the people, exposing the constitution, which then „is treated as an order of values that evolves as social conditions change.”[19]
He will return to this argument at many turns throughout the book, as it is his overarching motive that legislatures drive constitutional democracies. Thus, naturally, Loughlin approaches breaking this link of legitimacy from another aspect as well, when he tackles the issue of legislature delegating broad mandates to executives “not only to deal with emergencies but also to act in a general regulatory capacity, and the principle of ‘proportionate empowering’ confers wide latitude to take whatever action is deemed necessary. Through a wide range of mechanisms, governments now play a major role in enacting, shaping, interpreting, implementing, and reviewing legal rules and determining the government’s own legal responsibilities.”[20] In this situation, what we in Europe call fusion of powers, we find ourselves in a rabbit hole that fits squarely into the intended focus of the book: between legal thought and political practice.
In the chapter on The Struggle for Recognition, Loughlin asks the question whether the political struggles of the present take away the ‘ideological power’ of constitutionalism, by taming democracy and realigning it with the fundamental ideas and principles thereof. In this process, Loughlin looks at two different dynamics of constitutionalism (an inclusive and an exclusive one) and turns this inquiry toward international law, which he calls The Cosmopolitan Project in reference to the idea of ‘cosmopolitan constitutionalism’, which he traces critically through Kant, Habermas, and Kumm. Loughlin then ties the bow on his bouquet of arguments neatly by channeling ‘ordo-constitutionalism’ back into the debate branded as ‘a global project’,[21] but talks separately about constitutionalism with a cosmopolitan purpose.[22]
Eventually, he draws his conclusion: “Cosmopolitan constitutionalism ushers in a world of markets, voluntary associations, and service agencies in networks that transcend national boundaries. It is a constitutional discourse for a world of interacting orders and permeable boundaries. To the extent that it conjures a world without boundaries, constitutionalism with a cosmopolitan purpose envisages a world if not quite yet without states, then perhaps without politics, and certainly without the pivotal significance of democratic practices.”[23]
This is a very astute observation regarding the challenges presented by the book in many parts. Loughlin reflects on key debates of our times such as the changing nature and function of constitutions, the separation and fusion of powers, executive overreach, “government growth” and the administrative state. He adds to this his remarks on juristocracy and the role of (constitutional) courts, populism, or ‘the invisible constitution’, upholding abstract principles with universal scope and influence, transforming constitutionalism into a ruling philosophy.[24] He then turns this train of thought into a counter-argument against contemporary workings of international institutions that also lack democratic authorization, i.e. the link of legitimacy tied back to the constituent power of the people. In Loughlin’s view, the primary driving force of a constitutional democracy is the democratically elected legislature, that is – he posits – continually exposed to losing its power to the judiciary and the executive.
In the end, Loughlin reverts to the list of six rigorous criteria (mentioned in the introduction) to qualify contemporary constitutional democracies and argues that regardless of their form of government and state structure, few of them would meet the criteria.[25] His final conclusion also defines his argument against constitutionalism, being that it “rests on the claim that [constitutionalism, as understood and described in the book] institutes a system of rule that is unlikely to carry popular support, without which only increasing authoritarianism and countervailing reaction will result.”[26]
I wholeheartedly offer ‘Against Constitutionalism’ to everyone who is interested in an Anglo-Saxon approach to how the paradigm of constitutionalism has shifted over time, how it should function and what should it mean today, and how it should affect our daily lives.
[1] Thomas S. Kuhn (1962, 1970): The Structure of Scientific Revolutions. Second Edition, enlarged. University of Chicago Press, p. viii; see also: István Stumpf: Paradigm-Shift in Constitutionalism. Gondolat, Budapest, 2022
[2] Martin Loughlin: Against Constitutionalism. Harvard University Press, 2022. (For a review on the book in Hungarian, see: Csapodi, Márton: Martin Loughlin – Against Constitutionalism. Könyvismertetés. Iustum Aequum Salutare. (1)2023:197-206.)
[3] Ibid., p. 22
[4] In detail: Ibid, pp. 2-6.
[5] Ibid, p. ix
[6] Ibid.
[7] Ibid, p. 2
[8] Ibid, p. x
[9] Ibid, p. 22. In this spirit, he later talks about transplanting constitutionalism into other legal systems all over the world as well.
[10] Ibid, pp. 5-6.
[11] Ibid, p. 6
[12] Ibid., pp. 6-7
[13] Ibid, p. 14
[14] Ibid, p. 16
[15] Ibid., p. 38.
[16] Ibid., p. 63.
[17] Ibid., p. 73.
[18] See: Márton Sulyok: How to Tame the Beast? Toward a Regulation Revolution in the Digital Platform Economy. In. Zoltán Ács et al.: The Entrepreneurial Ecosystem: A Global Perspective. Palgrave Macmillan, 2023, pp. 329-362.
[19] Loughlin, 2022, p. 161
[20] Ibid., p. 162-163
[21] Ibid., pp. 183-187
[22] Ibid., pp. 188-190
[23] Ibid., p. 190
[24] This last part of the argument is on p. 191
[25] Ibid., p. 195
[26] Ibid., p. 202
Márton Sulyok JD, LLM, PhD is an Asst. Professor (Senior Lecturer) in Constitutional Law and Human Rights at the Institute of Public Law, University of Szeged in Hungary. JD (2007, Szeged), LLM in Anglo-Saxon Law and English Legal Translation (2012, Szeged), PhD in Law and Political Sciences (2017, Szeged). Certified as an American Legal Expert (since 2009) in a joint training program of the University of Toledo College of Law and the University of Szeged Faculty of Law and Political Sciences. Currently, Prof. Sulyok is the Head of the Public Law Center at Mathias Corvinus Collegium (MCC) in Budapest, Hungary. Previously, he sat on the Management Board of the EU Fundamental Rights Agency (Vienna, 2015-2020), and currently he represents MCC on the Board of Directors of the European Public Law Organization (Athens, Legraina, Greece).
by admin | Feb 19, 2023 | Book Review
Towards a Dignified Discourse on Human Rights?
The universal respect for human rights should be the tie that binds, not divides our societies. Unfortunately, the currently raging conflict in Ukraine, the rising global tensions as well as the increasing shift in how the world views human rights makes this discourse unavoidable. In recent years, we have experienced the expropriation of interpretation in several legal questions. Albeit diversity and freedom of opinion are core values, interpretative tendencies that are locked into certain institutions or dynamics without giving any merit to outside input might lead – in our context – to the weaponization of human rights in various social and political situations instead of protecting individuals on legal grounds – as they should. One-size-fits-all legal interpretation minimizes the need and space for open discourse and exchange of views and, therefore, fastens political and societal polarization as well. This creates divide when it comes to individual needs, worldviews and interpretations not being heard, which contributes to ever-rising tensions. As a result, questions related to human dignity, fundamental rights, and values are becoming wedges rather than essential ties among us, actual tools for social cohesion.
The Authors of ‘Human Dignity and Law: Studies on the Dignity of Human Life’ (Guillermo F. Arquero Caballero, Grzegorz J. Blicharz, Carlos Espaliú Berdud, María Luisa Gómez Jiménez, Franciszek Longchamps de Bérier, Javier Martínez-Torrón, Federico de Montalvo Jääskeläinen, Liviu Olteanu, Maria do Céu Patrão Neves, José María Puyol Montero, Hugo S. Ramírez-García, Francesc Torralba and Luca Valera) recognized that unilateral interpretation in human rights advocacy is a zero-sum game, where no win-win scenario could be achieved. There is a need for competition in the ‘marketplace of ideas’ in order to respect our diversity and preserve alternative and valid legal interpretations in different cases. This book serves as a set of ideas on the various aspects of human dignity.
The Authors’ valuable contribution shows that we need new, renewed, and alternative ways to approach social conflicts to prevent driving society into disintegration. Hyper-judicialization of human rights and applying only one solution for all cases only lead to injustice. Therefore, based on our human dignity, we should rebuild a culture of respect for those who think and live differently. In this process, retrieving and rediscovering the concept and content of human dignity is crucial. The Authors provide an introduction into the ‘know-how’, by discussing the importance of the many aspects of upholding human dignity.
The current trend of monopolization in legal interpretation, where only one viewpoint is accepted, as they argue, leads to the weaponization of human rights and ultimately polarizes society. The Authors propose that there should be competition in the “marketplace of ideas” in order to allow for the respect of diversity and the consideration of alternative (concurrent) legal interpretations. The book draws on the concept of persona in Roman law, which posits that law exists to serve humans rather than the other way around. The authors argue that a return to this principle is necessary in order to rebuild a culture of respect for those who think and live differently.
In our understanding, the erosion of human dignity seems to be a result of intensifying migratory movements, changes in the reasons for migration, and the emergence of new technologies that challenge traditional definitions of humanity. The creation of artificial life and the modification of human bodies raise both social and legal questions about human dignity and the legal status of humanoid robots.
Step by Step
José María Puyol Montero, the author of the first chapter discussing these issues highlights the case of Sophia, a humanoid robot that was granted Saudi citizenship and appointed as an ambassador to the United Nations Development Programme, and discusses the impact on international relations and the consideration of robots as persons or objects under the law. The chapter also discusses the views of moralists in the 16th to 18th centuries on the dignity of Native Americans and enslaved Africans in the Spanish Crown and the efforts to protect their human dignity on moral and religious grounds. The author concludes that human dignity is an inherent aspect of being human that should be exercised as a responsibility for both personal development and the betterment of society.[1] This is why the birth of social rights[2] was such an impactful development, particularly when it came to labor law.
In addition to AI and emerging (disruptive) technologies, the gig (sharing) economy poses challenges to the protection of human dignity and labor rights due to the lack of clear legal categorization and the influence of algorithms and artificial intelligence on the measurement of trust. Grzegorz J. Blicharz argues that universal moral assumptions should be applied in these relationships due to the fact that contractors are human beings with dignity and human rights, regardless of the legal classification. This is where the issue of the wage-gap between men and women also comes up, as a potential threat to the betterment of society.
The next chapter discusses the concept of ecological citizenship, which involves the obligation to protect the environment,[3] and the importance of reshaping the relationship between morality and law in order to address humanity’s vulnerability and ensure the preservation of the planet.[4] Hugo S. Ramírez-García also mentions the need to redefine concepts such as citizenship in the face of technological advances, wars, and pandemics.
The following chapter discusses the impact of COVID-19 on human dignity and the projection of the “Red Queen Effect” (i.e. the constant need to adapt and evolve in order to survive) on public health policies. María Luisa Gómez Jiménez discusses the importance of human dignity in the design and implementation of health policies and the need to consider the long-term effects on the public’s trust and the sustainable development of the health system.
The final chapter discusses the concept of “dignity in the end of life“, including the right to a dignified death, the role of palliative care, and the legal regulation of assisted suicide and euthanasia. Francesc Torralba discusses the need to respect the autonomy and dignity of individuals in end-of-life decisions and the importance of providing appropriate palliative care.
Conclusions
Seeing how many different threats our society has to face, the motto of the European Union, “Unity in Diversity,” has been called into question in recent years. Are we really ‘united in our diversity’? Or our diversity became a ground for distinguishing and dividing us? We are living in a very controversial world where our personal features and values have become our own enemies and they can be weaponized against us by the click of a button. As a result, societies became very polarized; politics and extreme rhetoric are circulating ideological themes wrapped in trendy new layers of the concepts of ‘human rights’ and ‘dignity’. Human rights are supposed to provide cohesion at the social level due to their universality. However, the interpretation of human rights content and applicability might vary in each state or region, so due respect should be given to particularity. Instead, this trivial truth led to reshaped processes designed to tilt the role of human rights and dignity, transforming then into political weapons to fight ideological battles. A new layer of this is the digitalization and the evolution of certain technological solutions, which all affect human nature, human dignity, and its legal and social evolution.
The book bravely deals with these sensitive issues and express their professional opinion about human dignity and its conceptual elements based on the lessons learned from Roman Law. The fact that most of these chapters deal heavily with Artificial Intelligence and digitalization as part of the broader conversation about human dignity conveys a message about the state of human rights and which direction we should move. If we wish to preserve our environment and maximize our chances of avoiding another pandemic and uphold our rights in the digital age, new perspectives must appear in conversations about the place law holds in today’s society. However, we have to keep an eye on the original concepts and from time to time, we should go back to the roots, reinterpret and rethink those in the light of our present.
‘Human Dignity and Law. Studies on the Dignity of Human Life’ starts an overdue conversation about new aspects of the challenges we are facing and, in our opinion, does a very good job. It is an intriguing work that presents revolutionary ideas grounded in extensive and in-depth research. Its 306 pages and 12 longer chapters contain intriguing data, necessary for the new generation of thinkers to prepare for the unique challenges to come. Since the Authors recognized that unilateral interpretation of human rights is a zero-sum game, where no win-win could be achieved, we applaud that they opened the floor for a fresh and much needed debate on human dignity, human rights, and their protection.
Human rights issues are often complex and multifaceted, requiring a nuanced and respectful approach. Unilateral interpretation and one-size-fits-all solutions can lead to injustice and further polarize society. In order to achieve a win-win solution, it is important to consider multiple perspectives and engage in open and respectful dialogue. Only by approaching human rights issues with an open mind and a willingness to find mutually beneficial solutions can we hope to uphold the universal respect for human rights and prevent societal disintegration.
Lilla Nóra Kiss, PhD, Visiting Scholar and Adjunct Faculty, Antonin Scalia Law School, George Mason University, USA; Founding Member, Freedom and Identity in Central Europe (FICE). Email: lkiss@gmu.edu
Mónika Mercz, JD, specialized in English legal translation, Professional Coordinator at the Public Law Center of Mathias Corvinus Collegium Foundation while completing a PhD in Law and Political Sciences at the Károli Gáspár University of the Reformed Church in Budapest, Hungary. Mónika’s past and present research focuses on constitutional identity in EU member states, data protection aspects of DNA testing, environment protection, children’s rights and Artificial Intelligence. Email: mercz.monika@mcc.hu
[1] L. N. Kiss – O- J- Sziebig, “Defining the Common European Way of Life”, HUNGARIAN YEARBOOK OF INTERNATIONAL LAW AND EUROPEAN LAW 9, 2021, p. 111-131.
[2] W. Rosen, “The Most Powerful Idea in the World: A Story of Steam, Industry and Invention”, University of Chicago Press. 2012. p. 149. ISBN 978-0-226-72634-2.
[3] O. J. Sziebig, “The Implementation of the Aarhus Convention’s Third Pillar in the European Union – a Rocky Road Towards Compliance”, EUROPEAN STUDIES: THE REVIEW OF EUROPEAN LAW ECONOMICS AND POLITICS 6, 2019, p. 205-218.
I. Olajos – M. Mercz, “The use of the precautionary principle and the non-refoulement principle in public law – Or how far the boundaries of constitutional principles extend”, Journal of Agricultural and Environmental Law, Vol. 17 No. 32, 2022, p. 79-97. DOI: https://doi.org/10.21029/JAEL.2022.32.79
M. Mercz, “Constitutional or environmental law?”, Constitutional Discourse, 2022, https://www.constitutionaldiscourse.com/post/monika-mercz-constitutional-or-environmental-law (access 09.01.2023)
[4] The concept of Environment as a Public Concern is underlined by Elliott and Esty’s paper on this issue, “imposition of a credible risk of a risk without someone’s informed consent, not merely provable actual injury, should be cognizable as a harm that environmental law should address to the extent practical”.
by admin | Jan 27, 2022 | Book Review, European Union, USA
In the current “rule of law” climate, a book such as the one reviewed hereunder might provide us with some much needed guidance in our arguments over what the concept of constitutionalism is and what it really means in terms of the rule of law. In his 2019 book titled “Revolutionary Constitutions: Charismatic Leadership and the Rule of Law”, Bruce Ackerman ambitiously addressed the topic of constitutionalism by using a unique comparative approach. His comparison focuses on three ideal types (revolutionary outsiders, responsible insiders, elite construction), in which he elaborates in each of them the four developmental phases (from Time One to Time Four) of constitutional development. The scientific uniqueness of the Author’s approach is the applied categorization of constitutional changes and the stages of operation of the post-change systems. Constitutionalism – as the Author defines it – “is part of a larger dynamic”; it should always be discussed. It means different ways of legitimizing power, its “rise reshaped modern notions of authority”. Ackerman asserts that considering the constitutionalism “as a one-size-fits-all ideal” is a mistake. This is one of the most valuable statements of the book in my view, as it turns into relative (or correlative) all values that are supposed to be objective and clear, transparent and without any doubt. If the reader presumed that constitutionalism is a universal value-system, the Author provides convincing arguments to the opposite. Even if the Readers might have some common idea about the fundamentals of constitutionalism, it evolved via very diverse ways under altering conditions all around the world. Literature on constitutionalism generally treats this as an optimal status consisting of democratic values in a rule of law state functioning within a framework having guarantees.
Ackerman treats constitutionalism as a process of change and the post-change-development of the society from a legal and political perspective.
Ackerman explains that the different cultural and historical heritage of states led them to multiple levels and forms of constitutionalism. All constitutions were transformed by social, cultural, and historical dynamics. Different movements (such as revolutions) strengthened the transformation into “powerful engines of legitimation” in the last century. Even if the Author analyzes social, legal, and political changes that arose in the twentieth century, he raises concerns and draws consequences that could be interpreted and monitored today.
The book reveals the Author’s individual vision of historical events determined by the types of constitutional movements and development, by which he established a new categorization system.
The comparative work often refers to the Weberian system (and highlighting the differences of the new approach). The fundamentals that are defined by Max Weber and his anti-positivist followers may still serve as points of reference in putting the social sciences on a rational footing. Ackerman considers his own approach positivist in only one sense: when it comes to defining the nature of a constitutional revolution. The positivist approach distinguishes law from non-law but does not question how a system legitimates itself. This leads to both over- and under-inclusive definitions according to Ackerman. Therefore, the Author also deters from the leading legal positivist perspective besides focusing on past events from a new approach.
I find the book particularly valuable in re-evaluating events that have now become historic in the light of past, recent, and present events. The Author’s assertions have a common ground within each type: these events impact on constitutionalism, its establishment or disestablishment, and its role as a source of authenticity. The interpretation is vital as our past often determines our future, and this also is true for the states. The durability and further development opportunities of mature democracies are results of the constitutional development of states. If the states evolve in terms of their constitutionalism in different ways, their conditions for the rule of law will not be the same either.
Finally, the Author is deviating from the conventional bipolar division of the legal world (common law, continental law) and applies a four-stage dynamic of constitutionalism(Time One: mobilized insurgency, Time Two: constitutional founding, Time Three: succession crisis, Time Four: consolidation). He attempts to rethink comparative law by distinguishing his theory from former and contemporary theoretical viewpoints. His comparison is based on a chronological order of development stages of revolutionary, establishmentarian, and elitist models of constitutionalism, and, on the other hand, on different countries’ case studies. Ackerman uses evaluative, analytical, and comparative methods by which he presents the constitutional development from the early stages of the regime changes until the afterlife of the established legal orders. He does this by guiding the readers to India, South Africa, France, Italy, Poland, Iran, Burma, and Israel. Ackerman finishes his book by a chapter about American exceptionalism.
Lessons for future ‘,influencers’,: pathways for legitimizing and elaborating power (the ,revolutionist,, the ,establishmentarian,, the ,elitist,)
Ackerman distinguishes three types of constitutionalizing processes and examines their development within their respective pathways. By using the model-system, the Author presents in the first part some constitutional revolutions in six chapters, and further elaborations in seven chapters in the second part. The last chapter is an outlook on the US constitutional system.
The first scenario is the revolutionary movement transformation which mobilized masses of outsiders to change the system controlled by the insiders. The Author points out some success stories of this type, such as India, South Africa, France, Italy, Poland, Israel, and Iran. (Even if the Author does not name the country here, I would add Hungary to this list as the development is very similar to the Polish example.) However, these constitutionalizing revolutions are not uniform. According to Ackerman, modern revolutions have two main types: the totalizing variant and the evolutionist. The latter is described as an approach to “propose pragmatic alternations in the status quo”, while the totalizing one intends to reach changes in multiple spheres of life. For revolutions to be successful, he asserts, must meet some conditions under certain circumstances. One of these is self-consciousness (which means that revolutionaries have a common ideology or combine elements of ideological themes: liberal, neoliberal, social democratic, imperial grandeur, egalitarian, etc.). Another inevitable element of a successful revolution is an active movement party. After the successful revolution, the previous and the new regimes are connected by a transition. The new system needs democratic reorganization which requires electoral victories. The new era or regime tends to keep older traditions that recognize the legitimacy of the revolutionary; therefore, the adaptation is unconventional. Revolutionary movements also have a central player: charisma. Ackerman distinguishes between organizational charisma and leadership charisma. The relationship of these types of charisma is complex, sometimes leaders rely on their organizations while in other cases they destroy their movement organizations to build their cults of personality.
The second and third scenarios are soft versions compared to the (sometimes bloody) revolutionary solution for changing the reigning system. In the second (establishmentarian) type, the new legal and political order are built by pragmatic insiders who tend to reach compromise. The insiders invite pacific groups of outsiders into a common brainstorming and by involving some of them, the common sense of the different opposing groups could be reached without a revolution. This solution could be defined as a soft strategic transition. The classic example for this solution is the United Kingdom. The UK had an influence on Australia, Canada, New Zealand.
The third type is very similar to the second, but the change here lacks the “popular uprising” that could be found in the first two models. Ackerman called this type an “elite construction”. In this case, the old system begins to unravel while the society is “relatively passive”. In this situation, a power vacuum emerges that is occupied by the political and social elites who become the engines of the new constitutional order. The Spanish regime-change serves as an example for this type.
The main difference between the first and the latter two scenarios is that the first requires a very active outsider (out of the reigning system) movement, while the others are changing from the inside. The distinguishing feature of type two and three is that in the second case, there is an outsider movement with soft and radical elements (and the model uses the consolidated groups of outsiders to dilute the system), while the third model lacks social movements. The change comes from the top, from the wealthy and educated political and social elite. In the Weberian system, the first scenario could be the root of the charismatic legitimacy, while the second and the third could probably have rational legitimacy. Ackerman’s scheme is lacking the transcendent and the traditional models of legitimacy, but the former is not conceivable in the twentieth century, while the latter usually pertains to kingdoms which became rather formal or ceremonial in the mentioned period. The previous century put an end to several charismatic (often dictatorial) leaders whose ‘systems’ became replaced by well-estimated rational and legitimate regimes.
The Author summarizes that all types face different problems arising from the “constitutionalization of charisma” and the “bureaucratization of charisma” over time that is emphasizing the legal and political dynamics. For example, the revolutionary legitimacy fades over time as the revolutionary generation dies off. Their heritage is fading and will not sustain the system forever. In all types, the political authority moves toward “the normalization of revolutionary politics”. A significant part of this normalization process in the first type is the judiciary, which first develops the new system’s “early constitutional doctrines in less provocative settings”. Later, the “jurists are aware of the fragility” of the doctrines. Lastly, jurists are “using the early judgements with growing self-confidence as authoritative precedents to resolve hot-button disputes between rival politicians”. As the second and third types lack revolutionary movements, the maintenance of the new order is relying on the elections. The party that triumphs in the elections is entitled to enact legislation and the judiciary cannot strike it down by referring to its noncompliance with the former systems’ norms. The judiciary therefore plays a significant but secondary role compared to the first type. According to the Author, the “judges may play a constructive role in type two by returning problematic statutes for reconsideration”. Ackerman also expresses that while the judges may play a constructive role, they “must recognize the parliament’s democratic authority to demand that the courts faithfully implement the new legislation”. This is an interesting perspective if we consider that judicial decisions shall be reasoned, objective and defendable. In type two, Ackerman defines the establishment / disestablishment as a problem. In this system, the lack of establishment is often replaced by referendums that are – as Ackerman writes – a “far deeper threat to the establishment of tradition”.
The Author critically points out that “the referenda open a way for demagogic appeals to ordinary citizens (who lack the resources of time and knowledge for fateful choices)”. He mentioned the Brexit as an example for this. The elite construction model faces challenges of authenticity. The obvious question is raised by the Author: how do the elitists generate support from the general population? The Spanish constitution provoked crisis in Catalonia and in the Basque Country for decades. The Germans created their post-war constitution (the Basic Law) in 1949 under military conditions. The naming refers to the Germans belief that their Charter did not deserve the status of a constitution. Therefore, they asserted a Final Article that expresses that a “truly authentic constitution could only be achieved when East Germans could free themselves from Soviet control” and when Germany is reunified. The authenticity problems arose in 1989 again when the Berlin Wall fell. The German Reunification Treaty enabled the German Democratic Republic (GDR) to become part of the Federal Republic of Germany (FRG) by signing the agreement. The authenticity aspect of the Treaty is that it extinguished the existence of “East Germany” by the signature of that agreement. Due to the active role of the German Federal Constitutional Court, the Basic Law became a central engine for the German constitutional and political identity. The Author demonstrates the role of the judiciary and the constitutional courts in the constitutionalizing process in which their decisions support the new system’s establishment.
Case studies: different countries, similar challenges?
Ackerman starts to present the first type of constitutionalizing programs by guiding the readers to India. The country (which is considered to be the largest constitutional democracy in the world) faces poverty, illiteracy, and a caste system. (The latter – from an egalitarian perspective – cannot be considered as democratic. However, “being democratic” from a Western perspective would presume a one-size-fits-all kind of solution for constitutionalism that cannot be achieved on such a diverse globe as ours.) India must handle several other challenges arising from its various ethnic and linguistic diversity. Ackerman raised the question of how India could sustain its constitutional order under these circumstances. The answer is the Indian Supreme Court and its role in defending the nation’s constitutional legacy and identity. The activity of the courts – which operate on a common law basis – became significant in the country’s succession crises of the 1970s.
South Africa has several parallels to India in the way of forging revolutionary charisma into constitutional authority. However, India applied a “declining empire scenario” while South Africa used a “revolutionary bargaining scenario”. South Africa struggles now with its succession crises according to the Author.
France and Italy are similar in the sense of their constitution building efforts after the Second World War. Both countries faced resistance movements of Communist, Socialist, and Christian democratic ideologies. The French Commander (later President), Charles de Gaulle allowed himself to challenge the resistance by the power of the military. He became the nation’s first President, and to date, the semi-presidential system is considered to be a relative success-story – according to the Author – as thirty-five countries already have adopted the Gaullist model.
In Italy, the Constitutional Court emerged from the succession crisis to gain political recognition as the guardian of the nation’s legal principles defined during the revolution. In Poland, the movement behind the regime change was the largest Solidarity agitation that led to the adoption of a semi-presidential design. This was evaluated as “less successful” by Ackerman. The reason behind the failure of the semi-presidential system in Poland was the competitive approach of Solidarity group leaders (in favor of a parliamentary and of a presidential system) instead of cooperation. This led to a post-Soviet leadership that was consolidated enough to reach consensus and adopt the new (elitist and not real revolutionary) constitution for Poland. The failure of the semi-presidential system therefore triggered the constitutionalizing of the charisma (both leadership and organizational).
The governments of Iran and Israel were both results of revolutions. The Zionist government was committed by the Israeli Declaration of Independence to promulgate the constitution, the liberal social democratic leaders (such as Ben-Gurion) passed this obligation to the movement party (Mapai) which became the constituent assembly. In Iran, the Supreme Religious Leader took advantage of the moment to establish the constitution on the basis of popular sovereignty. The adoption of the French style semi-presidential system (that did not bring luck to the Polish) was a successful attempt in Iran. Hassan Habibi drafted the constitution and used the French system as a source of inspiration. In Burma, military brutality followed the call for the new beginning in 1989. Aung San Suu Kyi was arrested until the movement forced the military to give her a seat in the government.
Finally, the Author dedicated a chapter to examine American Exceptionalism in order to enlighten the country’s constitutional crisis in the age of President Trump. To guide the reader in American constitutionalism, Ackerman starts by introducing Exceptionalism in the understanding of Justices Scalia and Thomas, and the cosmopolitanism represented by Justices Breyer and Kennedy among others. Ackerman calls for a rooted cosmopolitanism – “an approach that recognizes America’s exceptional constitutional culture” – that generates new insights. The Author analyzes US constitutional development with continuous comparison between the formerly presented countries’ revolutionary changes and establishments. In the end, Ackerman talks about the consequences of Roosevelt’s repudiation to constitutionalizing the charisma in the 1930s on the recent events of the Trump presidency.
Concluding remarks
In “Revolutionary Constitutions”, Ackerman approaches constitutionalism and several historical events that formed the current systems from a unique, 21st century direction. Helping readers understand the different movements and the succession of the regime-changes in various countries, Ackerman enables the comparison of today’s systems with the former ones.
. In doing so, he leads the readers into today’s America and attempts (in my view successfully) to interpret current processes on the basis of past events. According to John Bernall, “a nation who do not know its own history deserve to live it again“. I believe that knowing a bit about other nations’ struggles for their values also is important. Ackerman’s book helped me understand that even if we lived on different continents and used different legal systems, we probably would face similar challenges. A good example for this is our health crises arising from the COVID-19. Our countries treat the pandemic in various ways, but we still have mutual points and opportunities to cooperate. The health crisis caused constitutional turbulences within the EU as it has no competence in health matters, but the pandemic – of course – did not stop at the borders of the states. The Member States locked down their borders, introduced extraordinary rules for daily operations in several institutions, restricted the free movement of people and goods in the Internal Market which caused several economic and human rights issues. Several (rather liberal) Member States used the COVID-crisis to raise and force the idea of a European Health Union complemented by a Social Europe, while other (rather conservative) Member States denied deepening the integration in that way. COVID-19 affected the constitutional dialogue related to the future of the European Union and the level of cooperation among the Member States as well. Even if the EU is not a state, it struggles with relevant issues of constitutional identity, and so do the Member States – sometimes on a collision course. Ackerman’s comparison of certain European states was informative for me as a European citizen. Probably, in the next edition, the Author could present more countries. The analysis of Scandinavian and Baltic states could add a great value to this comparative approach in any upcoming work.
I particularly appreciated the short outlook to the brief cultural diagnosis of the European Union (EU). Even if the EU is not a state, it faces constitutional challenges. On the one hand, the EU has its own elite constitutional legitimacy, while, on the other hand, its Member States emerge from different legitimation pathways that cause collision when it comes to crisis management or decision-making affecting sovereignty. The Author points out that the leading European nations – in which group he considers including the Member States with the largest populations (Germany, Spain, France, Italy, Poland and [at the time of the publishing of the book Great Britain]) – came along in different constitutional ways, therefore they have trouble in finding common grounds for a more perfect Union. I guess, this book could serve as a guide for mutual understanding of the Member States on matters of constitutionalism.
To sum up, I conclude that the book has provided insight to the past through a lens of pathways to create a better understanding in a unique and useful way. Even if the content goes back to historical ages, the effects of those revolutionary events and constitutional transformations can still be felt today. Therefore, we should always draw on the past to have better conclusions for the future.
Lilla Nóra KISS is a postdoctoral visiting scholar at Antonin Scalia Law School, George Mason University, Virginia. Lilla participates in the Hungary Foundation’s Liberty Bridge Program and conducts research in social media regulation and regulatory approaches. Formerly, Lilla was a senior counselor on EU legal affairs at the Ministry of Justice and she has been a researcher and lecturer at the University of Miskolc (Hungary), Institute of European and International Law for five years, where she taught European Union law. Lilla obtained her Ph.D. degree in 2019. The topic of the dissertation is the legal issues of the withdrawal of a Member State from the EU.
Her current research interests cover the legal dimensions of Brexit, the interpretation of the European Way of Life, and the perspectives towards social media regulation in the USA and in Europe.
by admin | Nov 19, 2021 | Book Review, European Union, Rule of Law
Charting and Testing the National Constitutional Limits to EU Fiscal Integration
I am honored to have been invited to introduce my 2021 PhD-thesis titled “A Ministry of Finance? Charting and Testing the National Constitutional Limits to EU Fiscal Integration”, published in the series of the Meijers Research Institute and Graduate School of Leiden Law School (Leiden University) on the pages of Constitutional Discourse.
The EU financial and sovereign debt crisis – better known as the Eurocrisis – erupted in late 2009 with destructive force. It threatened the survival of the EU’s single currency and thereby endangered the entire European integration process. The crisis revealed that the Euro suffers from major structural deficiencies, formally embedded into the Economic and Monetary Union’s (EMU) legal framework. And despite initial emergency fixes undertaken during the peak of the crisis, it is accepted that more comprehensive reforms are necessary to remedy this deficient EMU structure. The remaining flaws are currently in the spotlight again due to the economic consequences of COVID-19. It is by now widely acknowledged that some form of EU fiscal integration is necessary to remedy these structural flaws and achieve a stable euro in the long run. To clarify, the research employs the concept of EU fiscal integration as a broad, open-ended umbrella-term that encompasses all decisions on public expenditure and revenue, including on taxation and debt-issuing. Subsequently, this open-ended term is rendered more specific based on concrete EU fiscal integration proposals. Despite the apparent necessity of EU fiscal integration, the room for such integration steps seems strictly delimited by national constitutional concerns, as was only recently illustrated by the German PSPP-judgment and the reluctant stance of the Finnish Constitutional Law Committee in relation to Next Generation EU. Metaphorically speaking, these two constitutional decisions are only the tip of a much larger iceberg of critical national constitutional views formulated against the conferral of core state powers to the supranational level – including in particular national budgetary and fiscal prerogatives that would ultimately be altered by the proposed EU fiscal integration steps. National constitutional law therefore formulates hard limits against the surrender of fiscal, budgetary or economic powers to the EU. The result is a fundamental dilemma: on the one hand, effective EU fiscal integration seems necessary to stabilize the common currency and avoid an even more costly crisis. On the other hand, fiscal integration in the EU appears to be legally impossible, given the limits imposed by national constitutional systems and the need to respect national democracy and sovereignty.
Faced with this apparent dilemma, my research conducts a comparative assessment of a selection of national constitutional limits that are applicable to EU fiscal integration in order to investigate the dilemma’s legal-constitutional parameter. The research thereby determines how similarly – or differently – national constitutional systems address the very same EU integration ambition in order to determine what EU integration steps are compatible with national constitutional law. The research is hence divided into two different conceptual parts. In the first part, the available national constitutional space for EU fiscal integration is charted and dismantled. The chosen comparative setting allows to focus on a selection of representative national constitutional approaches and to identify national constitutional best practices. These best practices could be potentially employed in other Member States to locate additional constitutional space for EU fiscal integration whilst maintaining – or even increasing – the effective protection of core constitutional concerns. In the second part of the research, the previously charted national constitutional space is tested against the most authoritative fiscal integration reform proposals debated within the EU in order to evaluate and determine their national constitutional attainability.
More specifically, as previously indicated, Part I compares a selection of national constitutional constraints that set limits to EU fiscal integration ambitions. Confronted with 27 national constitutional strategies to manage EU integration, the research is delimited to a representative sample of national constitutional approaches and limitations imposed against these integration ambitions. It identifies two principal archetypes of how constitutional systems approach EU integration. On the one hand, a range of national constitutional systems developed more rigid constitutional approaches to EU integration that formulate strict substantive limits – or as Mattias Wendel calls them “red-lines” – for EU integration, traditionally determined by strong and independent constitutional actors. As a conceptual opposite to constitutional rigidity, some Member States have adopted more flexible constitutional approaches, where the main constitutional hurdle for EU integration is political-procedural in nature. Given that EU fiscal integration proposals will have to fit the constitutional space available under rigid as well as flexible constitutional approaches, the research conducts a wide charting and dismantling of national constitutional limits in the respective systems taking Germany as study case for rigid and Finland as study case for more flexible constitutional approaches. This assessment reveals that constitutional identity limits are seemingly the most serious legal-constitutional hurdle for EU fiscal integration ambitions. Therefore, the subsequent comparative assessment focused on the French, German, Polish and Spanish constitutional identity limit to determine their possible limiting effect for EU fiscal integration. Taken together, Part I thus establishes what the current legal space for EU fiscal integration is, and to what extent more space can be created by applying the outlined constitutional best practices.
Part II then examines whether the most authoritative reform proposals for EU fiscal integration are feasible within the available constitutional space. In other words, are the proposals currently on the table legally feasible? And conversely, what form of fiscal integration is maximally achievable within the available national constitutional space? This entails first the identification of the most relevant and authoritative EU fiscal integration proposals. These proposals are subsequently broken down into core components following a two-fold functional approach, which organizes the proposed fiscal integration steps first based on substantive elements (such as the creation of a fiscal capacity or the creation of new institutional-administrative structures) and second based on the envisaged degree of EU control. Subsequently, the deconstructed EU fiscal integration steps are tested against the previously charted national constitutional space to determine their attainability. The resulting overview outlines possible constitutional conflicts and remedies to address such conflicts both at the national constitutional level as well as when devising these EMU reform plans.
Based on this analysis, the research shows that there are important and far-reaching national constitutional limitations to EU fiscal integration. At the same time, even in the most rigid national constitutional systems, legal space can be found and created for some degree of EU fiscal integration, provided it is well designed.
In order to further reduce the tension between fiscal integration ambitions and national constitutional law, without renouncing national constitutional core values, the dissertation introduces two concrete proposals:
Firstly, the research proposes to integrate the explicit and implicit benefits resulting from EU fiscal integration into the national constitutional assessment of integration. This would modernize the prevailing state-centric or competence-centric interpretation of national sovereignty and democracy, so that it better matches the actual interests of Member States and their citizens. National constitutional actors can achieve this modernized understanding by following two strategies developed within the research: On the one hand, the research identified a constitutional double standard in the interpretation and application of national constitutional law – particularly in Germany – to the disadvantage of EU integration. Hence, by applying a consistent interpretation of national constitutional law, additional constitutional space can be located for EU fiscal integration. And, on the other hand, constitutional actors can draw inspiration from constitutional best practices identified, for example, in the Finnish constitutional order.
Secondly, the thesis proposes to better adapt the current proposals for EU fiscal integration to the limits that inherently result from the nature and content of the various national constitutions and the well-founded concerns of several constitutional actors that oversee these constitutions. These adjustments can constructively take into account the identified national constitutional constraints and shape fiscal integration in such a way as to go along with and leave room for national constitutional debate. One concrete possibility for institutional amendment at the EU level to address these national concerns is the establishment of a Eurozone Forum of National Parliamentary Delegates. This Forum would be exclusively composed of national parliamentary delegates and thus integrate the national parliamentary level better into EMU decision-making, which could address the identified concerns of national constitutional authorities regarding EU fiscal integration and the required degree of national parliamentary control over budgetary and fiscal decision-making. The proposed Forum would complement the existing informal general dialogue of COSAC and could guarantee that the fiscal decision-making process at EU level is in sync with the national processes.
Ultimately, these two proposals could help to break the apparent dilemma between the need for EU fiscal integration and respect for national constitutional boundaries. Overall, EU integration is a process of continuous amendments, challenges and transformation. Increasingly, this process conflicts with traditional characteristics of the national constitutional space, which can explain the emergence of national constitutional identity limits as a new type of constitutional defense mechanism. Through these limits, national constitutional authorities attempt to contain EU integration and preserve national constitutional structures in light of an ever-deepening integration. Although the research illustrates that national constitutional systems can be receptive towards the various benefits that stem from supranational cooperation, this receptiveness is increasingly limited as EU integration advances towards the core of national systems: their constitutional identity. EU fiscal integration ambitions squarely fit into this general trend, as they propose a shift of core constitutional and political competences from the national to the supranational level. Naturally, this proposed shift is met with national constitutional resistance displayed in the various constitutional proceedings in the Member States assessed within the research. The PhD-manuscript argues that overcoming these national constitutional challenges against EU fiscal integration – but also against EU cooperation in core state areas generally – might require initiating a new chapter in national and supranational constitutionalism. After all, EU integration and national constitutional law are not opponents but can and should be mutually reinforcing allies in a globalized world.
Frederik BEHRE is a postdoctoral researcher at the Europa Institute (Leiden University). He completed his PhD-degree in October 2021, focusing in his research on a comparative assessment of the national constitutional limits to EU fiscal integration. Frederik graduated from the European Law LL.M. programme at Leiden University. Previously, he studied German Law and completed the LL.B. programme on Information Technology and Intellectual Property Law at Leibniz University (Hannover, Germany). In addition, Frederik completed the Europaeum Scholars Programme (first cohort), a PhD-programme organized by Oxford University and the Europaeum network.
In his research, Frederik is particularly interested in the interaction between national constitutional law and EU law, including a focus on comparative constitutional research. He explores the challenges and opportunities of this interaction through substantive areas of the law, such as the Economic and Monetary Union and most recently EU climate change and environmental regulation. Frederik is also interested in comparative regional integration law and the potential to exchange legal experiences across different regional integration projects globally.
by admin | Feb 27, 2021 | Book Review, European Union
Edited by László Trócsányi and Gábor László Lovászy. The original book is in Hungarian, titled “Európai Körkép”, Budapest, Ludovika Egyetemi Kiadó, 2020
A handbook titled ‘European Review’ is a recent publication containing more than 800 pages. It was published (in Hungarian) by Ludovika University Publishing House in Budapest, edited by László Trócsányi and László Gábor Lovászy. The genre of the book can best be defined as a handbook, as it cannot be considered a monograph or a comparative work anchored in international law. It is a body of work containing complex, modern, easily transparent and quickly accessible data not older than five years. In addition, it is suitable to illustrate and explain broader international processes, different human rights issues and interdependent areas of EU law and policies encompassing Member States’ practices. The aim of this work is to examine the 26 current Member States of the European Union (excluding the editors’ home state, Hungary and the United Kingdom) in terms of their integration processes, and to show how they interpret and apply European values in response to the challenges of globalization.
Each country report contains four subchapters and begins with a brief overview of a country’s geopolitical determination. Subchapter 1 is titled “Respect for Identity, Culture and Traditions”, which is followed by the “Practice of the right to liberty and security” (Subchapter 2). Subchapter 3 is called “On certain aspects of the fight against discrimination” and the handbook is concluded by “The promotion of well-being” (Subchapter 4).
In the first subchapter the authors examine certain aspects and determinants of national identity. This pillar includes the specificities of the majority national consciousness, the situation of indigenous and autochthonous minorities, as well as constitutional identity. The first subchapter in this topic examines elements that can be considered as ‘other’ identity-forming factors in addition to the national and constitutional identity, such as the interpretation of religious freedom. For example, it is stated that one of the cornerstones of France’s constitutional and national identity is the rigid separation of State and Church, the laity (or laïcité), while in the case of Ireland or Malta, the Christian faith and its corresponding conservative values can be seen as elements of identity. The other topic discussed besides this subchapter are family policies’ main measures and philosophy, complete with answers to the geopolitical and identity questions as to why such reactions have occurred in each Member State in the face of the challenges presented. The stance on migration is also explored.
Subchapter 2 examines issues such as the specificities of the political system and the rule of law in each country, the status quo of the administration of justice, the security of citizens, and freedom of expression and conscience. Issues of public security such as terrorism or climbing crime rates and prison overcrowding, where relevant, are also presented as important matters of social concern. Reading the European Review opens up the readers’ eyes to the uniqueness of the Member States, the constitutional and political cultures that correspond to the identity of each nation, and the institutional and legal solutions that come with and from it.
The third subchapter deals with how the EU fights discrimination. After mentioning whether a country’s constitution contains regulations concerning gender equality, the rights of minorities or other norms promoting equal rights, five further subsections can be found. The first subsection is about the application of the principle of equal treatment between persons regardless of their racial or ethnic background. The second subsection breaches the topic of the fight against antisemitism, showing how prevalent it is in certain areas. Positive increments processed by the Review include an Action Plan developed in France, which aims to combat antisemitism and racism on the Internet, and to encourage inter-ethnic dialogue and diversity both in culture and in the media. Thirdly, the protection of the rights of children, women and persons with disabilities is mentioned. The fourth subsection is about equality in the workforce, so in terms of employment and occupation. This topic consists not only of the disadvantages women and people of color so often face in the labor market, but also of exclusion based on someone’s religion. The last facet of the topic is the abuse of personal freedom. The prison system of EU Member States being overcrowded is a significant problem, but physical abuse, diminishing services and opportunities in prisons across Europe, as well as homelessness are all deemed noteworthy to mention.
The fourth aspect from which the countries are examined is promotion of well-being. This encompasses the betterment of living standards, economic growth and other parts making up the general wellbeing of a country’s citizens. This subsection is divided into four subsections. The first of these deals with unemployment and poverty, but since the gathering of this information Covid-19 has taken a significant toll on the entire world’s economy, rendering some of the statistics processed and presented only orientative in nature. The second subsection is about economic policy, containing the topic of the role of the state in supporting the economy and the question of corruption, with an emphasis on its relation to immunity. The third facet of this discussion is the environmental policy of each country, and the conclusions drawn from the current trends. The last part of this section is about education and science. The existence of scientific councils and their independence, governmental bodies dealing with education and other related facts are mentioned.
The work put into creating this volume is undoubtedly gigantic, which shows itself through the amount of statistics, surveys and other resources used and through the sheer scientific value it managed to produce. Personally, we think that the ‘European Review’ fills a niche in the market and is an exceedingly unique handbook. It is a standalone publication in the world of reviews, one that can compile huge amounts of data in an intriguing and thought-provoking manner. This book is useful not only for experts of law, but also for students, teachers and anyone who is willing to broaden their worldview through the lens of a fact-based, balanced and truly singular work. Overall, we have been convinced, both as reviewers and readers, that the ‘European Review’ will be suitable for the purpose originally conceived by the editors.
Norbert TRIBL – Mónika MERCZ (Editors)
