scholarly journals The European Constitution: sovereignty, legitimacy and constituent power

2014 ◽  
Vol 9 (3) ◽  
Keyword(s):  
European Integration ◽  
Federal State ◽  
Constituent Power ◽  
Constitutional Politics ◽  
European Constitution ◽  
Legitimation Crisis ◽  
Successful Establishment ◽  
Constitutional Legitimacy ◽  
Interpretative Framework ◽  
The Eu

On the basis of Hannah Arendt’s and Carl Schmitt’s writings on the constituent power, this article sets out to develop an interpretative framework which would aid the understanding of the legitimation crisis of European integration initiated by the EU constitutional failure of 2004. The question raised in this essay is whether the successful establishment of democratic constitutional legitimacy is conditional upon the existence of a federal state. From the perspective of the constituent power, two opposing answers are given based on two rivalling notions of the ultimate meaning of constitutional politics: freedom and security. The article concludes that even though the EU as a case remains undecided, it seems likely that democracy and constitutional politics have parted ways in the EU both in the Arendtian and in the Schmittian sense. If that is the case, the constitutional crisis is a serious problem for the future of democracy in the EU.

Why Constituent Power?

2020 ◽  
pp. 17-40
Author(s):  
Markus Patberg
Keyword(s):  
European Integration ◽  
Legal Order ◽  
Constituent Power ◽  
Constitutional Development ◽  
Popular Participation ◽  
Constitutional Politics ◽  
Political Autonomy ◽  
Methodological Challenges ◽  
The Eu ◽  
Popular Control

This chapter addresses the question of why a theory of constituent power in the EU is needed. While the EU has long since taken on a constitutional character, this is in no way reflected in adequate popular participation in decisions about its basic legal order. The EU is shaped through a combination of intergovernmental treaty making and integration through law that sidelines citizens. Constitutional mutation further decouples the EU’s constitutional development from popular control and shields fundamental decisions from democratic contestation. To capture the legitimacy gap that opens up here, the chapter introduces an understanding of constituent power as political autonomy at the level of constitutional politics. It argues that European integration is based on a usurpation, with constituted powers operating as de facto constituent powers. As executives and courts shape the EU in a largely self-referential manner, citizens are deprived of a crucial dimension of political autonomy. The chapter concludes with preliminary considerations on a theory of constituent power in the EU, addressing substantive and methodological challenges involved in its elaboration, as well as possible objections to the project as such.

Demoi-cratic Constituent Power

2020 ◽  
pp. 87-104
Author(s):  
Markus Patberg
Keyword(s):  
European Integration ◽  
Political System ◽  
Theoretical Framework ◽  
The Political ◽  
Constituent Power ◽  
Constitutional Politics ◽  
The Public ◽  
Cross Border ◽  
Political Communities ◽  
The Eu

This chapter turns to the public narrative of ‘We, the peoples of Europe’, according to which constituent power in the EU lies with the peoples of the member states, and asks to what extent it can be defended in systematic terms. In doing so, it draws on the political theory of demoi-cracy, which interprets the EU as a political system for the joint self-government of separate political communities. Building on the proposals of central demoi-cratic authors, the chapter discusses how the distinction between pouvoir constituant and pouvoir constitué could find a place in the theoretical framework of demoi-cracy. It then proceeds to assess the strengths and weaknesses of the resulting view. While the demoi-cratic model of constituent power is convincing in its claim that the national peoples must not be bypassed in EU constitutional politics, it fails to draw the necessary conclusion from the fact that European integration has brought about politically significant relations between the citizens of Europe—namely, that there is the need to enable the expression of cross-border cleavages.

Constituent Power in the European Union

2020 ◽  
Author(s):  
Markus Patberg
Keyword(s):  
European Union ◽  
European Integration ◽  
National Level ◽  
The European Union ◽  
Constitutional Treaty ◽  
Constituent Power ◽  
Constitutional Politics ◽  
Competing Models ◽  
The Right ◽  
The Eu

The European Union (EU) has been through almost two decades of near-constant constitutional crisis. The failure of the Constitutional Treaty was followed in quick succession by the struggles about the Lisbon Treaty, the Eurozone emergency, Brexit, and, recently, Corona-crisis-induced conflicts about financial solidarity. Over the course of these events, it has become clear that the EU’s constitutional development largely evades popular control. At the same time, the EU faces increasing politicization from below. While Eurosceptic forces seek to ‘take back control’ at the national level, pro-European citizens challenge the role of the states as the ‘masters of the treaties’. They reclaim what—in their view—has been illegitimately withheld from them: the right to shape the EU polity. This book advances the argument that these developments prompt the need for a theory of constituent power in the EU. The reason why European integration eludes citizen control and meets with growing discontent is that it allows constituted powers to operate as de facto constituent powers. Starting from claims to founding authority articulated in public narratives, the book explores competing models of constituent power in the EU—regional cosmopolitanism, demoi-cracy, split popular sovereignty, and destituent power—revealing their respective strengths and weaknesses. Rationally reconstructing established democratic practices of EU constitutional politics, it develops a new theory of constituent power in the EU. Addressing questions of the adequate conceptualization, allocation, agency, and institutionalization of constituent power, the book opens up the prospect of a more democratic mode of European integration.

scholarly journals Construcción política de la Unión Europea y poder constituyente = Politic construction of the European Union and the constituent power

2013 ◽  
pp. 309
Author(s):  
Gaëlle Marti
Keyword(s):  
European Union ◽  
European Integration ◽  
The State ◽  
The European Union ◽  
Constituent Power ◽  
European Constitution ◽  
Nation States ◽  
European Court ◽  
Combined Action ◽  
The Eu

Este trabajo tiene como objetivo analizar el uso del concepto de «poder constituyente» en el contexto de la integración europea. La tesis es que el poder constituyente es el «olvidado» de la integración europea, ya que este ordenamiento jurídico se construyó y adquirió una dimensión política y constitucional sin ninguna acción atribuible a un demos europeo. De hecho, es bajo la acción combinada de los Estados miembros (como «señores de los Tratados») y de las instituciones europeas (especialmente el Tribunal Europeo de Justicia) que el proceso de «constitutionnalization» se ha desarrollado endógena. Por lo general, se sostiene que la falta de «poder constituyente», ilustra el hecho de que la UE aún no ha cruzado el «umbral de estado», ya que este concepto se formó históricamente en el marco del Estado-nación. Sin embargo, creemos que el desalojo del concepto de poder constituyente no es una necesidad teórica, sino que es fruto de una decisión política, debido al temor de que la adopción de una Constitución europea por un pueblo europeo pudiera dar lugar a la desaparición de los estados. Sin embargo, creemos que no hay necesidad conceptual de limitar el concepto de poder constituyente en el ámbito estatal. En otras palabras, se supone que el concepto de poder constituyente puede ser incorporada en el ámbito europeo y, por otra parte, que esta perspectiva podría ser esencial en la vista de la reducción de la «déficit democrático» de la Unión Europea. El modelo de la «Federación de Estados» se podría utilizar para esbozar un poder constituyente europeo respetuoso de la existencia de la nación-estado.This paper aims at analyzing the use of the concept of «constituent power» in the context of European integration. The thesis is that the constituent power is the «forgotten» of European integration, since this legal order was built and acquired a political and constitutional dimension without any action attributable to an European demos. Indeed, it is under the combined action of the member States (as «masters of the Treaties») and of European institutions (especially the European Court of justice) that the process of «constitutionnalization» has developed itself endogenously. It is generally argued that the lack of «constituent power» illustrates the fact that the EU has not yet crossed the «state threshold», since this concept was historically shaped within the nation-state framework. However, we believe that the eviction of the concept of constituent power is not a theoretical necessity but that it stems from a political choice, due to the fear that the adoption of a European constitution by a European people could result in the disappearance of the states. However, we think that there is no conceptual need to limit the concept of constituent power to the state field. In other words, we assume that the concept of constituent power could be transposed into the European field and, moreover, that this prospect could be essential in the view of bridging the «democratic deficit» of the European Union. The model of the «Federation of States» could be used to sketch a European constituent power respectful of the existence of the nation-states.

scholarly journals Why Europe Does not Need a Constitution: On the Limits of Constituent Power as a Tool for Democratization

Res Publica ◽  
2021 ◽  
Author(s):  
Aliénor Ballangé
Keyword(s):  
European Union ◽  
European Integration ◽  
Democratic Participation ◽  
Democratic Deficit ◽  
The European Union ◽  
Constituent Power ◽  
Bottom Up ◽  
Cautious Approach ◽  
Theoretical Hypothesis ◽  
The Eu

AbstractIn this article, I question the use of the notion of ‘constituent power’ as a tool for the democratization of the European Union (EU). Rather than seeing the absence of a transnational constituent power as a cause of the EU’s ‘democratic deficit’, I identify it as an opportunity for unfettered democratic participation. Against the reification of power-in-action into a power-constituted-in-law, I argue that the democratization of the EU can only be achieved through the multiplication of ‘constituent moments’. I begin by deconstructing the normative justifications surrounding the concept of constituent power. Here I analyze the structural aporia of constituent power and question the autonomous and emancipatory dimension of this notion. I then test the theoretical hypothesis of this structural aporia of the popular constituent power by comparing it with the historical experiments of a European popular constituent power. Finally, based on these theoretical and empirical observations, I propose to replace the ambivalence of the concept of popular constituent power with a more cautious approach to the bottom-up democratization of European integration: that of a multiplication of transnational constituent moments.

A European Constitutional Treaty: The Blueprint for the European Union

2001 ◽  
Vol 2 (14) ◽  
Author(s):  
Udo Di Fabio
Keyword(s):  
Federal Government ◽  
Institutional Reform ◽  
Fundamental Rights ◽  
Federal State ◽  
The European Union ◽  
Constitutional Treaty ◽  
European Constitution ◽  
Legal Nature ◽  
Charter Of Fundamental Rights ◽  
The Eu

The debate over a European constitution is fully underway. (1) The issue will play an important role at the 2004 intergovernmental conference, especially if negotiations over a new model for the division of competencies between the Union and its constituent Member States is taken up at the Conference. The various points of inquiry — a Charter of Fundamental Rights, institutional reform, the division of competencies, financing, eastward expansion, finality — belong together and they beg for a solution that is fully conceptualized. With this in mind, the German Federal Government is justified in making sweeping, well thought out proposals. At the same time, the French government is equally correct to promote practical solutions while expressing a healthy suspicion of the formation of a federal state of Europe, which is the holiest of all possibilities for the Germans. Against this background, let me begin by saying a few things with respect to the legal nature of a possible constitution for the EU, before I move on to a presentation of more practical conclusions. II.

Challenging the masters of the treaties: Emerging narratives of constituent power in the European Union

2018 ◽  
Vol 7 (2) ◽  
pp. 263-293 ◽  
Author(s):  
MARKUS PATBERG
Keyword(s):  
European Union ◽  
Normative Theory ◽  
The European Union ◽  
Constituent Power ◽  
Constitutional Politics ◽  
Political Actors ◽  
Starting Point ◽  
Popular Initiative ◽  
The Eu

Abstract:There is a growing sense that if the EU is to avoid disintegration, it needs a constitutional renewal. However, a reform negotiated between executives will hardly revitalise the European project. In light of this, commentators have suggested that the EU needs a democratic refounding on popular initiative. But that is easier said than done. Shaping the EU has been an elite enterprise for decades and it is hard to imagine how things could be otherwise. In this article, I map four public narratives of constituent power in the EU to sketch out potential alternatives. Political actors increasingly call into question the conventional role of the states as the ‘masters of the treaties’ and construct alternative stories as to who should be in charge of EU constitutional politics, how the respective subject came to find itself in that position, and how it should invoke its founding authority in the future. These public narratives represent a promising starting point for a normative theory that outlines a viable and justifiable path for transforming the EU in a bottom-up mode.

Higher-Level Constituent Power

2020 ◽  
pp. 141-158
Author(s):  
Markus Patberg
Keyword(s):  
Conceptual Framework ◽  
State Level ◽  
Institutional Innovation ◽  
Rational Reconstruction ◽  
Nation State ◽  
Constituent Power ◽  
Member States ◽  
Constitutional Politics ◽  
Revision Procedure ◽  
The Eu

This chapter makes the first step in the construction of a new theory of constituent power in the EU by proposing a conceptual framework that clarifies the relation between the EU’s constituent power and the national constituent powers. In this way, it seeks to counter the objection that the EU cannot have its own constituent power because the member states retain the Kompetenz-Kompetenz. By means of a rational reconstruction of the ordinary revision procedure, especially the convention method, the chapter argues that the EU’s rules of treaty change already contain the first beginnings of a procedural-institutional innovation that can be described as a ‘levelling up’ of constituent power. One can speak of higher-level constituent power when nation-state peoples issue an authorization for constitutional politics at the supra-state level and in this way bring about a new constituent subject to which they delegate control over particular decisions. According to this view, the EU’s constituent power is neither independent of, nor equivalent to, nor combined with the constituent powers of the member states, but rather delegated by them.

scholarly journals The Idea of Discursive Constituent Power

Jus Cogens ◽  
2021 ◽  
Author(s):  
Massimo Fichera
Keyword(s):  
European Integration ◽  
Free Movement ◽  
Constituent Power ◽  
European Project ◽  
Early Stages ◽  
Political Morality ◽  
Advanced Stages ◽  
State Of Affairs ◽  
Over Time ◽  
The Eu

AbstractThe question addressed by this article is whether a form of constituent power exists at the EU level. It is argued that European integration has not suppressed the idea of people as constituent power. Instead, the idea of ‘people’ has been constructed through the discourses of security and rights. Ever since the early stages of European integration, the security and rights discourses have consisted in the articulation of a meta-constitutional rationale, which is here called the ‘security of the European project’, i.e. a form of political morality that is pursued by the EU as a polity over time and aims at its own survival. Security and rights discourses have contributed to constructing two ideas of ‘people-as-constituent-power’. The first idea is that of ‘mobile people’, i.e. people exercising EU free movement rights. The second idea is that of ‘peoples’ in the plural, conceived as States and citizens at the same time. Nevertheless, these discourses are characterised by a certain degree of ambiguity and have been unrolling as if the development of the EU polity was a mere technical, neutral matter. This state of affairs cannot continue: the European project has always been a political project, and, as integration reaches its more advanced stages, the time has come to disclose its political nature and address conflict openly.

Great Britain and Processes of the European Integration after Euro Crisis

2014 ◽  
pp. 40-47
Author(s):  
T. Andreeva
Keyword(s):  
Great Britain ◽  
Political Parties ◽  
European Integration ◽  
British Society ◽  
Federal State ◽  
Local Elections ◽  
Euro Crisis ◽  
European Policy ◽  
The Right ◽  
The Eu

The paper is devoted to the Great Britain's stance on the promoting of European integration towards creation of a federal state, after the euro crisis. It focuses on advantages and losses of the British policy in the EU. There are standpoints and views of four main political parties of Great Britain on the country's secession from the EU as well as the results of both local elections and elections for the European Parliament which reveal the rise of the right secessionist and anti-European moods in British society. The author also considers the European nations' present views and attitudes to the European idea. The following questions are answered in the article: Do the anti-European moods exert the crucial and lasting effect on British European policy? Is it better and more profitable for Britain to stay within the organization taking an active part in the integration process, or to withdraw from it?

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