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Constitutionalism as a Widespread Legal Theory in European Discourse

Legal theories form an integral part of legal education. All lawyers have to learn the theories on which our legal systems are founded, theories that help to put political processes and lawmaking into perspective, ones that sometimes even formulate strong critiques against current and dominant theories and trends. There is an added value to extending one’s knowledge about the myriad theories out there regarding the raison d’etre of law, its function, its goal, its current state, and its role in societies, on all levels.

There are legal theories that deal with international and global legal processes, norms, and phenomena, legal theories of international public law, or sometimes even surpassing the international public law domain. These legal theories have important positions on what is law and what is not law, whether different legal orders exist and their collisions and coexistence, the relationship between EU law and national law, the role of and tensions between international courts (and domestic courts), and a myriad of other questions of such nature.

One of the dominant legal theories (or rather group of legal theories) is constitutionalism. Following European public discourse and decision-making, one can run into the vocabulary and methods of constitutionalism more frequently than of other strands of legal theories.

The fact that constitutionalism dominates European processes means that there are many adherents of such theories and that there is a dominating preconception within the decision-making processes of the EU institutions. This has implications for the institutional affairs of the EU, the relationship between EU law and national law, and virtually all aspects of everyday life in the EU. A constitutionalist vision is one that regards the question of the relationship of EU law and national law in a European constitutional framework, one that protects the primacy of EU law even over parts of national constitutions that cannot be modified (in theory, even over the “Ewigkeitsklausel” in the Federal Constitution of Germany) and thinks in vertical hierarchies in all aspect of law.

This post will attempt to prove that constitutionalism is present in the most fundamental norms of and in the everyday life of the European Union.

Constitutionalism—a German invention

Andrea Bianchi describes the history of constitutionalism in his book about legal theories. Referencing Martti Koskenniemi, he explains that German legal scholarship had a fundamental influence on the development of international law, for example in the emergence of secular natural law concepts. During the interwar period, many German scholars emigrated to European countries and the USA. German scholars have some recurring themes, like looking at international law as a system (as a legal community, “Rechtsgemeinschaft”), trying to find solutions to deviations from its unity. They regard international law with a public law perspective. They use hierarchical vocabulary to support their visions and look at constitutionalism as a cure for the fragmentation of international, remedying the limits of classical international law.

According to Bianchi, constitutionalists tend to use domestic law vocabulary—for example, the word “constitution” applied to founding documents of international organizations—like the work of Alfred Verdross titled The Constitution of the International Legal Community (Die Verfassung der Völkerrechtsgemeinschaft). They regard the Charter of the UN as a constitution, despite formally being a treaty. They argue that the UN Charter has a certain symbolic value to it, contains fundamental principles for the international legal system and rules regarding lawmaking and adjudication, and a hierarchy of norms (Article 103 UN Charter). We can find other similar ideas regarding the WTO as a constitutional order and one of the most revealing examples is the “constitutionalization process” of the EU.

Examples of constitutionalist visions in the EU

Constitutionalist visions have a way of gradually overtaking European public discourse, European institutions, and decision-making processes. This comes as no surprise if we consider Bianchi’s assessment that constitutionalism can be seen as an attempt to remedy the fragmentation of the international legal order (sometimes, by establishing multiple consolidated hierarchies within it).

Examining the process of adoption and content of the Lisbon Treaties, we can reach the following conclusions. During the Laeken process, the Draft treaty establishing a constitution for Europe was drafted. Partially due to the constitutionalist vocabulary, projecting national law onto the EU’s structure (applying expressions like “constitution”, “minister”, and “European laws”), the Dutch and French citizens did not support it during the process of ratification through national referenda.

Art. 2. TEU includes the values of the European Union. Constitutionalists believe that international law, or certain sectors of international law can be regarded as vertical hierarchies. The basis of these hierarchies is common values. They use terms like “rule of law” that are originally of national constitutional theory origin. This leads to regarding EU law and national laws of the Member States as one single hierarchy. The Art. 7 TEU procedure sanctions deviations from this hierarchy, as well as the rule of law mechanism. The principle of the primacy of EU law has, in this respect, the function of ensuring that the norms of the hierarchy are adhered to. The Lisbon Treaty currently in force frequently uses the vocabulary of national discourses.

Article 48 of the Treaty on the European Union codified the procedure for the modification of the Treaties, specifically of calling the European convent together. The codification of this procedure is also a clear example of the result of the constitutionalist vision. This is not only suggested in the name “convent” (application of domestic law paradigms for the regional, and international level), but also in the fact that the Treaties do not intend to leave the treaty revision procedure in the hands of international law in general, but have established a special procedure for this specific purpose.

Another example is the fact that the committee of the European Parliament dealing with issues of an institutional nature bears the official title “Constitutional Affairs Committee”.

Interestingly, constitutionalism is not only tangible on a symbolic level but in the reports and legislative texts as well. The European Parliament adopted a proposal for the modification of the rules regarding European elections (“electoral law”), which proposed in its 15th Article the establishment of the Union-wide constituency and thus the so-called “transnational lists”. A certain number of mandates would be elected through the Union-wide constituency and the transnational lists of the European political parties. This means that the European citizens would receive two possibilities on a ballot paper. One for voting using the normal system and one for voting on transnational lists. In the second case, the party lists are established by the European political parties, thus it would be possible that some countries would not have candidates on the list and the citizens could vote on candidates running from any Member State. We can clearly see a constitutionalist, unifying vision behind this proposal, much like behind the lead-candidate system.

The European Parliament has initiated the reform of the Treaties. The modification report includes many proposals that support a constitutionalist vision. Renaming the European Commission and its members to the Executive and to Secretaries, establishing the right of initiative for the European Parliament, or formally codifying the lead candidate system, among others. (You can read more about the proposal in a previous article published here).

A constitutionalist European vision

Theories of constitutionalism have taken over the EU institutions. We can see it in the speeches given in the European Parliament and of leading politicians of the EU institutions, in the proposals coming from the Commission, in legislative proposals initiated by the Parliament in special legislative procedures, and in primary law in force. The theory having a German origin and its various branches spread through European public discourse easily. It is no wonder, if we consider the weight of German politicians and their allies in European politics. In the European Parliament, they have 96 MEPs, which is almost 1/7 of the whole house. The weight of Germany in the Council is significant as well, due to the size of the population of the most influential Member State of the EU. German legal theories have a certain reputation in the academic field as well.

Critics of constitutionalism, however, have some interesting points that can be projected to European politics as well. One of the problems with constitutionalism is that it promises the end of politics (Klabbers). By establishing a constitutional system for—for instance—the EU, politics will disappear from European discourse. This argument is, however, flawed. Law is a product of politics. The practice shows that European affairs do not become less politicized through the application of constitutionalist vocabulary, but rather even more so. There are deeper, more fundamental, more controversial debates currently regarding European values than ever before. Anne Peters stated that “law and politics should not be viewed as distinct realms, but rather as structurally coupled systems. Law is the product of political activity, which has been fixed in order to organize and limit (other) political action”. Instead of the end of politics, an endless political process starts, where the priorities are constantly renegotiated.

Another problem with constitutionalism is that it over-expands interpretations and stretches the borrowed national expressions and concepts to the limit. There is no European constitution, as the citizens of two Member States refused it. There is no European demos, which would inevitably be needed for a constitution to be adopted through a democratic process. The EU is not a federation, even though supporters of these theories frequently use vocabulary linked to a federation.

Inevitably, constitutionalist visions can lead to tensions between Member States and the EU, or between Member States themselves as well. Although some concepts that are part of the constitutionalist toolbox are useful (like the margin of appreciation doctrine), it should not be the dominating theory of public discourse, as it is evidently an excluding theory due to its vertically hierarchical nature. We should leave some room for other legal theories as well for European and national law to coexist peacefully.

Árpád Lapu has been a policy adviser on constitutional issues at the European Parliament since 2019 and a PhD student of the Károli Gáspár University of the Reformed Church in Hungary. Between 2017 and 2019, he worked as an adviser at the Cabinet of the Minister of Justice of Hungary, conducting comparative constitutional analyses. He has earned his JD at the Pázmány Péter Catholic University in Hungary, has a BA in international relations from the University of Szeged, and an MA in European and international administration from Andrássy Gyula German Speaking University in Budapest. He has completed an Edx MicroMaster in cooperation with the Catholic University of Louvain (UCLouvain) in international law. His field of research is non-participation in armed conflicts in international law and constitutional norms regarding non-participation in armed conflicts. He has written publications regarding the future of the EU ETS system of the European Union, institutional reform proposals of the Union, and research in the field of social sciences.

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