Adjudicating the European Social Market

At a first glance, to many observers the EU may appear to be an improbable illustration of the possibility of an extension of legitimacy and democratic justice beyond the state. In contemporary European constitutional debate constitutionalism and social democracy have become antagonists, with the survival of the one seeming to require sacrifice of the other. Authors in the tradition of ordoliberalism have celebrated the Europeanization process because it seemed to ultimately disconnect constitutionalism from democratic practice and to firmly entrench a logic of market evolution that marginalizes politics. Social democrats, by contrast, have come to believe that democracy can only flourish if the solidary politics of the nation retains its sovereignty against cosmopolitan, ‘constitutional’ intrusions from without. Proposals to deepen constitutional integration therefore give rise to the social-democratic objection. This chapter offers a stylized account of both views, which more or less mirror one another. This chapter then also provides an in-depth analysis of the CJEU’s jurisprudence in various domains regarding the efficacy of the Charter of Fundamental Rights of the EU (CFREU) in European private law: employment law and unfair terms in consumer contracts in particular. The chapter concludes that, contrary to expectations and concerns about a constitutional asymmetry between economic freedoms and fundamental social rights, the CJEU has in fact in many cases raised the standard of protection beyond the standard envisaged by national legal orders, thereby unblocking development.

Non-Finality and Dialogue in Constitutional Interpretation

By looking both at the European and contemporary US constitutional theory debates, this chapter proposes an analytic taxonomy of contemporary non-court centric approaches to constitutional interpretation: those that have concluded that the most promising response to persistent concerns about a democratic deficit is to shift the focus from courts as a forum of principle to the dialogue between courts and other actors, ranging from (other) courts to legislatures, administrative agencies, private actors, civil society stakeholders, and the wider public, in the jurisgenerative process. The goal is, by following the emergent literature on ‘weak’, proceduralist, and democratic-experimentalist forms of judicial review, to argue the virtues of the latter. Democratic experimentalism denotes a modality of judicial review that allows judges to enforce avowedly open-ended, fundamental, constitutional commitments in a way that institutionalizes—rather than excludes—continuing, social, and democratic determination and the progressive clarification of what constitutional commitments can and should come to mean in practice. Judicial review may deepen democracy rather than limit it by providing a focus and reason for public deliberation. The hope is to provide, by setting out contrasting positions, a foil for discussion and to show that the desirability of judicial review is not merely complacent assumption in contemporary constitutional and political thought, but can be supported on democratic grounds as deliberation-enhancing.

Democratic Experimentalism and the Public Sphere

This chapter argues that democratic-experimentalist forms of judicial review should not be confined to socioeconomic rights but can also be invoked with negative liberties and dignitarian personal rights. An apparent dilemma is this: on the one hand, modern, pluralist democracies are increasingly, and often irreconcilably, divided when it comes to fundamental choices which affect and express the self-understanding of a polity as a whole in matters such as, say, the right to religious freedom, free speech, the rights of transsexuals, and so forth. These matters have even become the subject of entrenched culture wars. And yet, on the other hand, there is an ever-accelerating reliance on courts and the judiciary for addressing those fundamental choices. The judiciary’s influence extends beyond settling disputes and seeps into all aspects of society, codifying the values of our times. But doesn’t this overstretch the resources of consensus-based legality? The concern is that judges are drawn into the crucible of pluralistic politics. By considering the jurisprudence of both the ECtHR and the CJEU, this chapter argues that even here courts can play a benign proceduralizing role, giving voice to the hitherto marginalized. The chapter addresses selected topical issues: the important example of freedom of conscience, which in Europe emerged after many centuries of religious persecution; the clash between free speech and personality rights; and personality rights in the context of (trans-) gender rights and same-sex marriage.

Conclusion

By engaging with democratic-minded objections and rule-of-law based critiques of constitutionalism, this book has suggested that, counterintuitively, a retreat from judicial supremacy becomes the most promising route towards redeeming fundamental social and personal rights under modern conditions of deep moral dissensus and complexity. But this step would indeed amount to an abdication of judicial role and responsibility—as both these critiques fear—unless it goes hand in hand with a moral-practical emphasis on the proceduralizing—that is, forum-creative and agenda-setting—role of courts in the process of a progressive clarification of the meaning of a right. But ongoing deliberation does not mean indefinite postponement of substantive resolution because the underlying proceduralist consensus is robust enough to express a commitment to mutual recognition of participants as stakeholders with legitimate interests. This proceduralist move addresses uncertainty in encouraging joint learning about unforeseen possibilities and limits. It helps legitimize decisionmaking in pluralism by authorizing the participation in the undertakings that concern them and by making a best-practice consensus routinely corrigible. Outcomes are legitimate as long as procedures are sufficiently inclusive to allow citizens whose interpretive views do not prevail to (re-) initiate scrutiny and revision of shared constitutional understandings in the light of new experience. Courts require attentions to relevant reasons. Over time, when interpretive answers have crystallized in the light of experience and mutual reason giving, courts can then shift towards stronger forms of judicial intervention that consolidate best practice. It is this proceduralizing move that Euroconstitutionalism epitomizes.