Democracy and emergency: finding the constitutional foundation of the knowledgeable state in social dynamics

This article aims to bring to light the law–society dynamic relationship in constitutional governance by engaging with the question of political constitutionalism from the perspective of institutional epistemology. It first reframes the debate surrounding legal and political constitutionalism as one concerning the state's ‘epistemic competence’ in governance shaped by the constitution, and then traces how constitutional ordering has given rise to the ‘knowledgeable state’ by setting a unique social dynamic in motion: the ‘epistemico-political constitution’. Using the example of the World Health Organization's initial response to the COVID-19 pandemic, a the article presents a two-part argument. First, constitutional ordering institutes a process of knowledge production embedded in the interaction between the state and society – a unique law–society dynamic – that responds to governance needs. Second, given the current law–society dynamic in the suprastate political landscape, the legitimacy challenge facing expertise-steered global governance is further intensified as more crisis responses are expected from outside the state.     

The Perils of ‘As If’ European Constitutionalism

This review article offers thoughts on Kaarlo Tuori's recent book, European Constitutionalism, and more particularly on what he calls the ‘disciplinary contest over the legal characterisation of the EU and its law’. As the book's title suggests, Tuori privileges the constitutional perspective in that contest, so much so—he freely admits—that his analysis ‘predetermine[s] how the EU and its law will be portrayed’. And therein also lies the book's main weakness. Tuori's predetermined ‘constitutional’ interpretation, like so much of the dominant legal discourse in the EU today, ultimately obscures the core contradiction in EU public law. National institutions are increasingly constrained in the exercise of their own constitutional authority but supranational institutions are unable to fill the void because Europeans refuse to endow them with the sine qua non of genuine constitutionalism: the autonomous capacity to mobilise fiscal and human resources in a compulsory fashion. The EU's lack of constitutional power in this robust sense derives from the absence of the necessary socio‐political underpinnings for genuine constitutional legitimacy—what we can call the power‐legitimacy nexus in EU public law. To borrow Tuori's own evocative phrase, the EU possesses at best a ‘parasitic legitimacy’ derived from the more robust constitutionalism of the Member States as well as from the positive connotations that using ‘constitutional’ terminology evokes regardless of its ultimate aptness. The result is an ‘as if’ constitutionalism, the core feature of which is an increasingly untenable principal‐agent inversion between the EU and the Member States, one with profound consequences for the democratic life of Europeans. The sustainability of integration over the long term depends on confronting these adverse features of ‘European constitutionalism’ directly, something that legal elites—whether EU judges, lawyers, or legal scholars—ignore at their peril.     

The economic constitution and the political constitution: seeking the common good in the post-national setting

In the post-national setting, the concept of the ‘economic constitution’ has been seen as design template and saviour; whether based on transactional certitude or founded on ordoliberal precepts, the economic constitution is assumed to legitimate economic integration across national borders in the absence of comprehensive political settlement. Nevertheless, recent tensions – not only within the European Union (EU) but also, more strikingly, within the World Trade Organization context – indicate the limits of economic constitutionalism. This article seeks to identify the roots of recent dysfunction within the history and theory of economic constitutionalism. It traces the evolution of an adjudicational economic constitutionalism and its place within the EU legal order, including the new EU Charter of Fundamental Rights, and contrasts this vision with the more comprehensive and/or socialized models of economic constitutionalism found not only within the Weimar Republic but also within the post-revolutionary/post-conflict constitutional context. The article also places a major emphasis on theorizing around the apex of economic-constitutional thought, ordoliberalism, but concludes that no concept of the economic constitution can be seen in isolation from its social-political context, or from notions of the common good. To this exact degree, failures in modern economic constitutionalism may derive from a misplaced universalism – a technocratic absolutism that abdicates political responsibility for the common good, locating it instead in an ‘idolatry of the factual’ or a new naturalism of market inevitability.     

Self‐Determination in the Constitutional Future of the EU

This article analyses three prominent proposals for the functional and political transformation of the EU from a constitutional perspective. It argues that existing EU reform proposals, to varying degrees, entrench rather than reverse the challenges to individual and political self‐determination brought about by the EU's response to its Euro crisis. As the article will conclude, challenging ‘authoritarian liberalism' in an EU context may require the development of a constitutional structure for the Union able to contest, rather than set in stone, the EU's existing economic and political goals.     

Political Constitutionalism and the European Union

What kind of constitution is emerging in Europe? There are two approaches to answering this question. The first, a ‘foundational’ approach, rejects the premise: there can be no real constitution in the absence of a ‘demos’, a foundation which exists only nationally. The second, ‘freestanding’ approach, depicts it as paradigmatic of a broader phenomenon of cosmopolitan constitutionalism, based on individual rights guaranteed through a transnational rule of law. Rejecting both for their failure to account for European constitutionalism as a historical process of polity‐building, a third approach, ‘political constitutionalism’, is proposed, capturing the dynamic quality of constitutionalisation in the EU. From this perspective, what is emerging in Europe is a constitution that reflects a common good (predominantly conceived in economic terms), albeit one which is legally, political and socially contested. It is by capturing this complex picture of the political formation of Europe that the constitutional question will be most fruitfully pursued.     

Political constitutionalism and populism

Criticisms of political constitutionalism's relationship to populism point in two opposed directions. Legal constitutionalists consider it too open to, and even as legitimating, populist politics, whereas radical democrats consider it too closed to popular participation, prompting an anti-system politics of a populist character. I dispute both these views. Underlying these contrasting assessments are differing conceptions of populism and constitutionalism. This article distinguishes right- from left-wing populism, and limited government from non-arbitrary rule, as constitutional ideals. Legal constitutionalism typically embraces the first ideal. However, that can be a driver of both right- and left-wing populism, and allow types of arbitrary rule that democratic backsliding and illiberal regimes can (and do) exploit. By contrast, political constitutionalism involves the second ideal and is antithetical to right-wing populism while potentially friendly to the legitimate demands of left-wing populism. Nevertheless, the practical reality of political constitutionalism in the United Kingdom (and elsewhere) often falls short of its ideal theoretical potential. Addressing these shortcomings, however, requires strengthening democracy rather than the legal constitution, not least through electoral reform.     

Caught in an Authoritarian Trap of Its Own Making? Brazil's ‘Lava Jato’ Anti-Corruption Investigation and the Politics of Prosecutorial Overreach

The negative and corrosive impacts of corruption in the fields of economics, politics, and law are widely discussed. Less understood are the potentially negative impacts of anti-corruption struggles and strategies themselves. This article presents a case study of Brazil's ‘Car Wash’ (‘Lava Jato’) scandal from a legal and political perspective. Although the subsequent Operation Car Wash investigation was widely regarded as remarkably successful, supposedly buttressing the rule of law through high-profile prosecutions of leading politicians and businesspersons, the article argues that legal due process, wider constitutional law, and the political process were undermined. While the use of media leaks to strengthen the investigation proved tactically successful, when coupled with new legal instruments it undermined the presumption of innocence and contributed to a climate in which political and legal debates themselves became increasingly subordinated to simplistic polarizing anti-corruption discourses, thereby undermining an already fragile political and institutional environment.     

Law against the Rule of Law: Assaulting Democracy

This article examines how authoritarian contenders use law to advance an agenda geared to exclusive state power in light of a paradigmatic case: the National Socialists’ takeover of the German state apparatus in spring 1933. This case highlights two ways in which an office holder is able to expand his power in an authoritarian fashion through legal dispositions. A conjunctural use of law for authoritarian purposes draws on legal statutes to undercut the political capacity of opponents and competitors, hollow out institutional checks, and crucially hamper civil freedoms. Taking advantage of constitutional provisions that make institutional subversion from within possible (‘constitutional Trojan horses’), a structural use of legal statutes reorders the power structure by reallocating decisional rights. In both cases, law serves as a weapon against the rule of law. These considerations raise the question of the standards by which we are to judge the legality of such acts. Contemporary instances of democratic backsliding are cases in point.     

The legal constitution: United Kingdom parliament and European court of justice

Membership of the EC has transformed the legal status of the UK parliament. Prior to British accession, Acts of Parliament were the supreme law of the land, unchallengeable in any court. This paper argues that EC membership raised the courts ‐ national as well as European ‐ above parliament and that at the time of accession parliamentarians were almost wholly unaware of this fundamental change. The author links MPs’ ignorance to the highly political, rather than legal, nature of the British constitution and traces the evolution of their constitutional understandings. Identifying a new dynamic interplay between British judiciary and parliament, the study argues that the creeping hegemony of law within constitutional politics merits continuing analysis by legislative scholars.     

History in the Law of the Constitution

This article addresses the diminution of historical understanding in English constitutional law by reconsidering Dicey's approach to history in his foundational work. It argues that Dicey's approach was inconsistent and unconvincing – separating a historical view of an evolving constitution from a legal view, discounting history's legal significance and nonetheless repeatedly evoking a whig history to enhance the appeal of the constitution's rules and principles. It recalls the features or deficiencies of whig history, famously characterised by Herbert Butterfield from a modern historical perspective. To Butterfield's characterisation it adds an elaboration on their constitutional significance and a neglected comparative dimension. From those features, it develops, in conclusion, methodological suggestions for a history that might yet serve constitutional legal purposes.     

Taking the Law Seriously: On Political Science and the Role of Law in the Process of European Integration

Abstract: The interdisciplinary discourse on European law seems paradoxical. While the editors of this Journal plead for a contextual jurisprudence, political scientists are discovering the importance of law for the integration process. This article explores the merits and problems of both of these shifts¹. On the one hand, it points to implicit assumptions of legal arguments that need to be contrasted with the insights of political sciences into mechanisms of integration processes and the functioning of inter-governmental bargaining - and is thus to be read as an appeal for a 'contextual' jurisprudence. On the other hand, it argues that political science analyses, even when they take the legal dimension of European integration into account, tend to rely upon an instrumentalist view of the legal system which fails to acknowledge the Law's normative logic and discursive power. This theoretically complex argument is exemplified first by an analysis of the tensions between the legal supranationalism of the European Court of Justice and the German Constitutional Court's defence of national constitutionalism, already intensively discussed in this Journal². What the article adds is an extension of the constitutional debate to the economy. It argues that Europe cannot, and should not, be based upon a dichotomous structure of (national) political rights and (European) economic liberties.     

Transnational constitutionalism – conflicts-law constitutionalism – economic constitutionalism: the exemplary case of the European Union

Transnational constitutionalism is both a sociological given and a legal challenge. We observe the emergence of ever more legally framed transnational arrangements with ever more power and impact. Do such arrangements deserve to be called legitimate rule in Habermasian terms? Is it at all conceivable that the proprium of law can be defended against the rise of its informal competitors? This article opts for a third way that listens to neither the siren songs on law beyond the state nor to the defences of nation-state constitutionalism as the monopolist of legitimate rule. The proposed alternative suggests that transnational legal ordering of the European Union should build on its reconceptualization as a ‘three-dimensional conflicts law’ with a democracy-enhancing potential. This reconceptualization operationalizes the ‘united in diversity’ motto of the Draft Constitutional Treaty of 2004, preserves the essential accomplishments of Europe's constitutional democracies, provides for co-operative problem solving of transnational regulatory tasks, and retains supervisory powers over national and transnational arrangements of private governance.     

The Common Law Constitution at Work: R (on the application of UNISON) v Lord Chancellor

This note considers the radical significance of Supreme Court's judgment in R (on the Application of UNISON) v Lord Chancellor (UNISON) on the unlawfulness of tribunal fees. It argues that the decision marks the coming of age of the ‘common law constitution at work’. The radical potential of UNISON lies in its generation of horizontal legal effects in disputes between private parties. Recent litigation on employment status in the ‘gig economy’ is analysed through the lens of UNISON and common law fundamental rights. The note identifies the various ways in which the common law tests of employment status might be ‘constitutionalised’ in the light of UNISON.     

走向程序法治:中国刑事程序改革的宪政思考

刑事程序法治化是法治建设的一个重要方面,也是推动宪政建设的原动力之一。由于刑事诉讼法的"涉宪性",进行刑事程序改革必然会牵涉到宪法的修正,触及到宪政体制改革。而宪政制度中法律秩序、司法制度、政治体制等宏观问题的科学性、合理性同样将影响刑事程序法治化的进程。只有理顺宪政、法治与刑事程序改革之间的关系,才能为我国刑事程序改革找到正确的方向。     

The Politics of Rule of Law Reform: From Delegation to Autonomy

How can we understand the delegation of power and authority – for example, from a polity to an administrator - in a world of fragmented governance? In this paper, I introduce the practices of contemporary ‘rule of law’ and ‘governance’ reform, which reframe this question in politically powerful ways. These practices are increasingly important in development contexts, and beyond. Practitioners begin with the assumption that some sort of administration occurs in the development contexts in which they work. They then focus on how to convene a political community in which to embed – and potentially legitimate - that administration. They thereby reconfigure the question of delegation into one of autonomy – or managing the extent to and ways in which the administrative legal system self-produces. In doing so, I argue that contemporary rule of law practitioners wield constitutional power under the rubric of workaday administrative reform. At the same time, they efface their political accountability.     

Asking the Sovereignty Question in Global Legal Pluralism: From “Weak” Jurisprudence to “Strong” Socio‐Legal Theories of Constitutional Power Operations

The article examines recent theories of legal and constitutional pluralism, especially their adoption of sociological perspectives and criticisms of the concept of sovereignty. The author argues that John Griffiths's original dichotomy of “weak” and “strong” pluralism has to be reassessed because “weak” jurisprudential theories contain useful sociological analyses of the internal differentiation and operations of specific legal orders, their overlapping, parallel validity and collisions in global society. Using the sociological methodology of legal pluralism theories and critically elaborating on Teubner's societal constitutionalism, the author subsequently reformulates the question of sovereignty as a sociological problem of complex power operations communicated through the constitutional state's organization and reconfigured within the global legal and political framework.     

Remarks on the Normativity of International Legal Rules and Global Constitutionalism

The article reflects on the possibility of conceptualising the complex problem of the normativity of international legal rules, including in particular the phenomenon of “relative normativity.” The author utilises the critical potential of Ronald Dworkin's proposal for a new philosophy of international law to reflect on the classical accounts explaining normativity of international law. By building on Dworkin's argument, the author argues for a constitutional account of international law. The far‐reaching constitutional proposals may provide a more complex and coherent set of possible rationalisations of international legal rules. International law is in great need of a comprehensive theory that could better explain its normative character as well as its sources, and it is argued that international constitutionalism has the potential to serve this purpose.     

Beyond Constitutionalism: The Search for a European Political Imagination

Two recent books, Joseph Weiler's The Constitution of Europe and Larry Siedentop's Democracy in Europe, seek to address one of the defining issues in contemporary European legal studies; the search for a European public philosophy. Both site their critiques within a particular jurisprudential tradition, the modernist; one that is bound up with anxieties about legitimacy and constitutionalism. This review article suggests that the ‘new’ Europe has been too easily distracted by the lures of constitutionalism, and more particularly by the temptations of Treaties. Public philosophies are not found in Treaty articles. Rather, a public philosophy is a state of mind, a product of the political imagination. And it is the absence of such an imagination which lies at the root of contemporary concerns regarding constitutionalism and legitimacy; the concerns which underpin Weiler's and Siedentop's books. A discussion of these books, in the first two parts of this article, is followed by a discussion of Godfried Wilhelm Leibniz's ‘universal’ jurisprudence. It is suggested that such a jurisprudence is better able to furnish a public philosophy for the ‘new’ Europe; just as, indeed, it was for the ‘old’ Europe. Moreover, such a jurisprudence is far more than a mere theory of laws and constitutions. Leibniz's jurisprudence requires that we think, not merely ‘beyond’ sovereignty, or even beyond democracy, but beyond constitutionalism.     

Social Insurance Monopolies in Community Competition Law and the Italian Constitution: 'Practical' Convergences and 'Theoretical' Conflicts

An Italian judge, following earlier suggestions of the national antitrust Authority, has referred to the Court of Justice for a preliminary ruling under Article 234 EC Treaty two questions on the interpretation of Articles 81 and 86 of the EC Treaty. With those questions, raised in an action brought by a self‐employee against the Istituto Nazionale per l'Assicurazione contro gli Infortuni sul Lavoro (INAIL) concerning the actor's refusal to pay for social insurance contributions, the Tribunale di Vicenza has in summary asked the Court of Justice whether the public entity concerned, managing a general scheme for the social insurance of accidents at work and professional diseases, can be qualified as an enterprise under Article 81 EC Treaty and, if so, whether its dominant position can be considered in contrast with EC competition rules. This article takes this preliminary reference as a starting point to consider in more general terms the complex constitutional issues raised by what Ge´rard Lyon‐Caen has evocatively called the progressive ‘infiltration’ of EC competition rules into the national systems of labour and social security law. The analysis is particularly focused on the significant risks of ‘constitutional collision’, between the ‘solidaristic’ principles enshrined in the Italian constitution and the fundamental market freedoms protected by the EC competition rules, which are implied by the questions raised in the preliminary reference. It considers first the evolution of ECJ case law—from Poucet and Pistre to Albany International BV—about the limits Member States have in granting exclusive rights to social security institutions under EC competition rules. It then considers specularly, from the Italian constitutional law perspective, the most recent case law of the Italian Constitutional Court on the same issues. The ‘contextual’ reading of the ECJ's and the Italian Constitutional Court's case law with specific regard to the case referred to by the Tribunale di Vicenza leads to the conclusion that there will probably be a ‘practical convergence’in casu between the ‘European’ and the ‘national’ approach. Following the arguments put forward by the Court of Justice in Albany, the INAIL should not be considered as an enterprise, in line also with a recent decision of the Italian Constitutional Court. And even when it was to be qualified as an enterprise, the INAIL should in any case be able to escape the ‘accuse’ of abuse of dominant position and be allowed to retain its exclusive rights, pursuant to Article 86 of the EC Treaty. This ‘practical convergence’in casu does not, however, remove the latent ‘theoretical conflict’ between the two approaches and the risk of ‘constitutional collision’ that it implies. A risk of a ‘conflict’ of that kind could be obviously detrimental for the European integration process. The Italian Constitutional Court claims for herself the control over the fundamental principles of the national constitutional order, assigning them the role of ‘counter‐limits’ to the supremacy of European law and to European integration. At the same time, and more generally, the pervasive spill over of the EC market and competition law virtually into every area of national regulation runs the risk of undermining the social and democratic values enshrined in the national labour law traditions without compensating the potential de‐regulatory effects through measures of positive integration at the supranational level. This also may contribute to undermine and threaten, in the long run, the (already weak) democratic legitimacy of the European integration process. The search for a more suitable and less elusive and unilateral balance between social rights and economic freedoms at the supranational level should therefore become one of the most relevant tasks of what Joseph Weiler has called the ‘European neo‐constitutionalism’. In this perspective, the article, always looking at the specific questions referred to the Court of Justice by the Tribunale di Vicenza, deals with the issue of the ‘rebalance’ between social rights and economic and market freedoms along three distinct but connected lines of reasoning. The first has to do with the need of a more open and respectful dialogue between the ECJ and the national constitutional courts. The second is linked to the ongoing discussion about the ‘constitutionalization’ of the fundamental social rights at the EC level. The third finally considers the same issues from the specific point of view of the division of competences between the European Community and the Member States in the area of social (protection) policies.     

European Union Constitution-Making, Political Identity and Central European Reflections

Abstract: This article focuses on the European Union's constitution‐making efforts and their specific reflections in the Central European accession states. It analyses both the temporal and spatial dimensions of constitution‐making and addresses the problems of political identity related to ethnic divisions and civic demos. It starts by summarising the major arguments supporting the Union's constitution‐making project and emphasises the Union's symbolic power as a polity built on the principles of civil society and parliamentary democracy. The EU's official rejection of ethnically based political identity played an important symbolic role in post‐Communist constitutional and legal transformations in Central Europe in the 1990s. In the following part, the text analyses the temporal dimension of the EU's identity‐building and constitution‐making and emphasises its profoundly future‐oriented structure. The concept of identity as the ‘future in process’ is the only option of how to deal with the absence of the European demos. Furthermore, it initiates the politically much‐needed constitution‐making process. The following spatial analysis of this process emphasises positive aspects of the horizontal model of constitution‐making, its elements in the Convention's deliberation and their positive effect on the Central European accession states. The article concludes by understanding the emerging European identity as a multi‐level identity of civil political virtues surrounded by old loyalties and traditions, which supports the conversational model of liberal democratic politics, reflects the continent's heterogeneity and leads to the beneficial combination of universal principles and political realism.