A European Constitution for Citizens: Reflections on the Rethinking of Union and Community Law

Whilst the European Union or Community is not a state and does not possess a political constitution in the sense of a series of irrevocable norms existing prior to and above Community or Union law, the evolution of the European legal system might nonetheless be regarded as a fundamental constitutional process. In this light, primary and secondary European law, together with the jurisprudence of the ECJ, might be said to be subjectivising certain specifically European principles thus contributing to the legal creation of sometimes novel rights for European Citizens. In a legal process similar to that seen within 19th Century Germany, European law is seeking a compensate for an incomplete political constitution through the development of a – second best – European Charter for Citizens.     

If the State Decertified Gender,What Might Happen to its Meaning and Value?

As jurisdictions reform gender identity laws to accommodate transgender and intersex people, this article speculatively explores a more fundamental shift: eliminating state law's role in determining and assigning gender status altogether. Adopting a feminist perspective, we explore what the meaning and effects of comprehensively reforming legal gender might be upon gender's constitution as a socio‐legal property, differentially recognized and protected by diverse but unequal bodies. Our discussion proceeds along two intersecting paths. The first concerns the different classificatory methods which could enable state law, without assigning gender, to continue to regulate gender identity decisions, thereby allowing state law to remain involved in tackling gender discrimination. The second concerns the changing form gender might take in conditions where state law withdraws its allocative function. These paths converge in a final discussion which considers what legal and political effects might follow from gender becoming a property that is individually and collectively cultivated.     

Accommodating Intersexuality in European Union Anti‐Discrimination Law

This article considers the relationship between EU anti‐discrimination law and intersexuality. Recent changes in German legislation that recognise intersexuality have prompted consideration of sex and gender throughout Europe. This article considers some of the disadvantages in the way the German legislation has been adopted and attempts to remedy them through the existent Recast Directive. The article rejects the current binary approach to sex and gender and recommends a broader interpretation that understands sex as a spectrum or continuum. It concludes that anti‐discrimination law may be a more suitable realm for questions of intersex to be raised than mandatory state documentation. Anti‐discrimination law is preferable, it is submitted, because it offers individuals an opt‐in model, which does not require any medical ‘proof’. Similarly, anti‐discrimination law offers activists a fluid site of resistance that is not based on medicine or the potential fixity of the birth certificate.     

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.     

The asymmetries of pouvoir constituant mixte

This invited Symposium contribution discusses Jürgen Habermas's celebrated and influential theory of pouvoir constituant mixte. In that account, the EU is constituted by a double authority: that of citizens of nation‐states and that of (the same) citizens as subjects of the future EU. I argue that Habermas's theory is convincing only if the two constitution‐building subjects—citizens of the already constituted nation‐states and citizens of the to‐be‐constituted European Union—are positioned symmetrically in relation to each other. I argue that Habermas's construction is, in fact, asymmetrical. I identify three asymmetries: of expectations, of function and of origins. I argue that these asymmetries place the role of citizens as members of nation‐states in such an advantageous position that it would be irrational for citizens in their other capacity, as citizens of the to‐be‐constituted European Union, to participate in the constituent authority in the terms proposed and defended by Habermas.     

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.     

Denationalization and the Very Idea of Democratic Constitutionalism: The Case of the European Community

Within the current debates about Euro‐constitutionalism, the conventional options are either to defend a vision of the European Union (EU) which separates global economic law from national sovereignty, and thus relies on the legitimizing powers of free markets, or to regard the legitimation problem (at least under current conditions) as beyond solution: This view argues that any further progress towards an ever closer Union would inevitably increase the legitimation deficit and that therefore the capacity for political action of the nation state should be protected or restored. This paper seeks to break the stranglehold of the, as is argued, false dichotomy (global markets vs. national democracy), and it argues that an extension of democracy beyond the nation state is possible.     

The Democratic Costs of Constitutionalisation: The European Case

There is little doubt that the European Union suffers from a legitimacy deficit. However, the causes of this deficit and, as a consequence, the remedies are contested. This article wants to show that an important, but often overlooked, cause for the legitimacy deficit lies in the overconstitutionalization of the EU. The European Treaties have been constitutionalized by the ECJ, but are full of provisions that would be ordinary law in states. Constitutionalization means de‐politicization. What has been regulated on the constitutional level is no longer open for political decision‐making. Thus, in the EU political decisions of high salience are not only withdrawn from the democratically legitimized institutions, but also immunized against political correction. Therefore, the consequences from the constitutionalization have to be drawn: The Treaties should be reduced to those norms that reflect the functions of a constitution, whereas all the other parts have to be downgraded to the level of secondary law.     

施米特对魏玛宪制的反思及其政治宪法理论的建构

施米特政治宪法理论是其保守主义政治思想体系的重构成,也是魏玛德国国家法理论流派中极具挑战性的一支.施米特理论具有明确的魏玛宪制处境,基于对魏玛代议制之思想基础、制度安排与实践表现的全面批判,重申了民主的同质性原理,弱化了民主的自由主义程序属性,为其政治决断论、绝对宪法论和领袖护宪论的连贯性理论建构提供了历史和思想前提.施米特政治宪法理论以其独特的政治概念和宪法概念为逻辑支点,以非常政治为情境预设,以政治同质性和单一领袖人格为理想目标,形成了相对系统的理论体系.该体系具有浓厚的政治神学背景,缺乏可资借鉴的“转型原理”,但在政治宪法核心概念与分析体系上具有重的思想和方法论启示.     

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 Paradox of Constituent Power.The Ambiguous Self‐Constitution of the European Union

Abstract. The French and Dutch referenda on the adoption of a European Constitutional Treaty highlight a remarkable ambiguity in the self‐constitution of a polity, which can be viewed as both constitution by and of a collective self. This ambiguity is a fundamental feature of polities in general, and the European Union in particular. Rather than suppressing this ambiguity, democracy—and a fortiori a European democracy worth its name—institutionalises it as the guiding principle of political action. As will transpire, the conceptual and normative problems raised by political self‐constitution are linked to self‐attribution, i.e., the conditions under which a collective ascribes legislation to itself.     

宪法权威的生成机制辨析

宪法权威的大小受制于社会发育的情况,只有在市民社会发育良好,并且能同政治国家形成有力制衡的条件下,宪法权威才有可能逐步形成。宪法实施的积极的、主要的、基本的方式是立法机关的立法,在违宪审查机制的作用下,确保立法机关的立法符合宪法精神和原则,保障宪法实施的内在统一;在相关立法不足的情况下,通过宪法司法化,直接援引宪法规范维护宪法主体的宪法权利,乃是宪法实施的一种辅助方式。在宪政秩序不健全的社会,关注各种宪政事件,对于实施宪法,维护宪法权威具有重要意义。     

宪法“私法”适用的法理分析

宪法权利原则上不能被当作“私法”适用,其原因是:避免不同性质的宪法权利在被“私”用时产生冲突;宪法权利的公法性质和“领域界定”功能决定了它不适合于私法适用。但是,社会的发展为宪法的“私法”适用提出了内在的要求,主要因素包括:国家职能的结构性转移和承担公共职能的私人团体的出现使私人团体有可能侵犯到公民的宪法权利;立法不作为导致了宪法权利的虚置。在宪法权利的传统定位和现实社会的内在需求冲击下,各国相继出现了宪法“私法”适用的理论及辅助性机制,比较典型的是德国宪法的“第三者效力”理论和美国司法审查中的“国家行为理论”。中国应建构自己的宪法“私法”适用理论及运作机制。     

Tocqueville's Question. The Role of a Constitution in the Process of Integration

Starting from the contemporary processes of “fragmentation of societies” (pluralization of individual lifestyles, the increasing ethnic‐cultural diversity, de‐solidarity, the melting away of political loyalties) and of “dissolution of the nation” (the erosion of the monopoly of the state, economic globalization), the author examines Tocqueville's question about what holds society together. This problem of integration is analysed in the perspective of social and legal sciences. Accordingly, the author stresses that solutions to such a problem should come from a constitutional theory which is open to debates and answers developing in other disciplines, thus obtaining relevant information concerning the role of law and of constitution for integration. 1 Abstract by Antonino Rotolo.
     

The Origins of the ‘Nonmarket Economy’: Ideas,Pluralism & Power in EC Anti‐dumping Law about China

‘Market’ and ‘market economy’ exercise a powerful, even magnetic grip on our collective imagination. But what do we mean by ‘market economy’? Does it make sense to speak of a ‘nonmarket economy’, and if so, what does it mean? How are the ideas of ‘market economy’ and ‘nonmarket economy’ related? Focusing on EC anti‐dumping law, this article seeks to answer these questions. It argues that the legal concept of ‘nonmarket economy’ in EC anti‐dumping law has been socially constructed, by means of relations among a plurality of institutional and normative sites, as part of a changing configuration of legal ideas in specific historical circumstances, and in contexts of political, economic, social, and symbolic power. This argument is articulated in three parts. First, the concept of ‘nonmarket economy’ in EC anti‐dumping law, though drawing on earlier elements, had its main roots in the early Cold War. Second, starting in the 1960s, the GATT multilateral negotiating rounds began to define more specific international rules of the game, but a variety of more localised processes played essential roles as forces of change. Of special importance were, first, the tension between legislative rules and administrative discretion in the United States, and, second, the Europeanisation of foreign trade law in the course of European integration. Third, the EC law concept of ‘nonmarket economy’ was born in the late 1970s. The main reasons were changes in the international anti‐dumping law repertoire, specific ideas in Europe about comparative economic systems, and the perceived emergence of new economic threats, including exports from China.     

Accommodating Religious Beliefs: Harm,Clothing or Symbols,and Refusals to Serve Others

Is there a middle path between the existing case law of the European Court of Human Rights, which rarely requires accommodation of a religious individual's beliefs, and a ‘general right to conscientious objection’, which would exempt religious individuals from all anti‐discrimination and other rules interfering with manifestations of their beliefs? The author argues that failure to accommodate is better analysed as prima facie indirect discrimination, to highlight the exclusionary effects of non‐accommodation on religious minorities, and that the presence or absence of direct or indirect harm to others (or cost, disruption or inconvenience to the accommodating party) could guide case‐by‐case assessments of whether the prima facie indirect discrimination is justified. The author then applies a harm analysis to the examples of religious clothing or symbols and religiously motivated refusals to serve others, recently considered by the European Court of Human Rights in Eweida and Others v United Kingdom.     

A 'European' Conception of Legal Consciousness: Rediscovering Eugen Ehrlich

This paper discusses the present ‘legal consciousness’ literature and seeks to identify two different conceptions of legal consciousness. Most of this literature originated in the United States, but there has also been a growing interest in issues of legal consciousness in Europe. The use of the term ‘legal consciousness ’ in these European discussions is, however, remarkably different from its use in the United States literature. It is argued that the most commonly used ‘American ’ conception of legal consciousness reflects important ideas of Roscoe Pound and asks: how do people experience (official) law? By contrast, a European conception of legal consciousness, which was first introduced by the Austrian legal theorist Eugen Ehrlich, focuses on: what do people experience as ‘law ’? After both perspectives are applied in a case‐study of a run‐down neighbourhood in the Netherlands, it is concluded that future studies of legal consciousness may benefit from an integration of the two conceptions.     

The Argument from Transnational Effects I: Representing Outsiders through Freedom of Movement

This article and its sequel examine an argument that has become a shibboleth for the European pro‐attitude towards international and supranational legal arrangements. I call it the argument from transnational effects. The argument says that supranational or transnational forms of integration, in particular market integration, are desirable on account of democracy itself. National democracies find themselves thereby forced to confront and to internalise the externalities that they cause for one another. A fortiori, democracy becomes supposedly emancipated from the confines of the nation state. Since the argument favours normative limitations on national political processes it seems to lend strong support to the introduction of transnational constitutional discipline. In this article and its sequel it is claimed that the argument, correctly understood, cannot support the creation of transnational democracy. Rather, in a critically recalibrated form, the argument, paradoxically, provides strong backing for the existence of bounded political communities without, for that reason, succumbing to ontologically questionable beliefs about the essence of national communities. Hence, the argument is really as much about the limits set to transnational integration as it is about their legitimacy. This explains why it is of central relevance to constitutionalism in a global age. The opening sections of this article offer an interpretation of John Hart Ely's constitutional theory. Examining the latter helps to articulate adequately the democratic sensibility expressed in the argument. It is argued that Ely's theory exceeds the scope of a mere theory of judicial review. It presents, indeed, a theory of constitutional authority, which is highly relevant to an analysis of the argument from transnational effects. The article then distinguishes and discusses two different readings of the representation‐reinforcing task that Ely attributes to constitutional legality. According to one reading, representation is secondary and only ancillary to the realisation of equality. According to another reading, equal participation is prerequisite to the success of representative democracy whose aim is to discover common ground. It is concluded that the first reading is easier to accommodate in a transnational setting. It will be seen that Ely's theory—at any rate, the first reading of it—is basically concerned with the problem addressed by the argument from transnational effects. This article's discussion of the argument distinguishes two different types of situation. A third, more general type will be dealt with in a subsequent article. The first situation affects people who realise that they would be better off if they were to benefit from the laws of a different democracy. Hence, they would like to have these laws imported. It is argued that their interests do not find support in the argument from transnational effects. The second situation concerns someone who encounters obstacles when moving from one democracy to another. Such obstacles can emerge either as a result of discrimination against non‐nationals or from the sheer fact that laws between and among bounded societies are different. The antidote against the latter is to submit national legislation to a proportionality test. Even though reinforcing representation prima facie seems to support this conclusion, the article claims that virtual representation, correctly understood, actually restricts the sweep of constitutional control to cases of behavioural discrimination. Extending the scope of control would actually violate the respect that it is owed to national democratic autonomy pursuant to the principle of virtual representation. It is also shown that only by limiting its sweep the argument from transnational effects can be prevented from endorsing neoliberal political goals.     

'We want you! But . . .' Recruiting Migrants and Encouraging Transnational Migration Through Progressive Inclusion

The article submits a proposal for outlining the present body of legal norms in the field of European migration and immigration law. To this end, it suggests understanding European migration and integration law as shaped by two principles: the principle of congruence between a state's territory, authority and citizenry and the principle of progressive inclusion. According to the established principle of congruence, the granting of rights to third‐country nationals (TCNs) is always geared to the ideal image that the persons permanently living on a territory are—in reality—part of the citizenry of that state and subject to the state's authority. According to the more recent principle of progressive inclusion, TCNs are to be gradually included into the host country's society by approximating their rights progressively to the rights of citizens. There are potential tensions between the two principles, which can be explained by the diverging philosophical and political concerns that they follow and the conceptions of migration that each uses. The article then goes on to explore the influence of both principles in current European migration and integration law. It brings forward the argument that current European migration and integration law is structured as much by the ‘older’ principle of congruence as by the principle of progressive inclusion. This assumption will be illustrated by the examples of the Long‐term Residents Directive (LTR Directive). Important provisions of the proposal for a framework directive intended to guarantee TCNs' equal treatment with EU citizens in social matters (Draft Framework Directive) and the directive on the highly skilled migrant workers (Blue Card Directive) will also be taken into account. Against the background of the highly contested legal field of migration and integration law, using the language of principles provides a useful tool not only for better grasping the current shape of this legal field, but even more for the legal discourse on the future development of European migration and integration law.     

宪法基本假设的探析

宪法应有基本假设。宪法的基本假设应从市民社会与政治国家的分离与互动发展中寻找。宪法的基本假设是市民社会是理性社会;政治国家是市民社会的工具;政治国家与市民社会间适用自然法则。宪法的基本假设奠定了宪法运行和宪法理论的基础。