Beyond Constitutionalism: The Search for a European Political Imagination

• Author: Ian Ward
• Date: 01 March 2001
• DOI: http://doi.org/10.1111/1468-0386.00117
• Published date: 01 March 2001

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Beyond Constitutionalism:

The Search for a European

Political Imagination

1

Ian Ward*

Abstract: Two recent books, Joseph Weiler's The Constitution of Europe and Larry

Siedentop's Democracy in Europe, seek to address one of the de®ning 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 constitu-

tionalism, 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 ®rst

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.

In 1715, Godfried Wilhelm Leibniz informed a correspondent that, `I have seen

something of the project of M. de St. Pierre, for maintaining a perpetual peace in

Europe'. `I am reminded', he continued, `of a device in a cemetery, with the words: Pax

perpetua; for the dead do not ®ght any longer'. Leibniz had spent most of his life

vigorously arguing the case for a European commonwealth, a reuni®ed respublica

Christiana. Yet, in the closing years of his life, he sensed that his eorts had been in

vain. For whilst the `dead do not ®ght any longer', the `living are of another humour;

and the most powerful do not respect tribunals at all'. Still, he concluded ruefully, it is

`permitted to write romances', to dream perchance, to long for a lost `age of gold'.

2

European Law Journal, Vol. 7, No. 1, March 2001, pp. 24±40.

#Blackwell Publishers Ltd. 2001, 108 Cowley Road, Oxford OX4 1JK, UK

and 350 Main Street, Malden, MA 02148, USA

* Newcastle I should like to thank Clare McGlynn who commented on an earlier draft of this article, and

Aurelie Vinot for her research assistance.

1

A review article of J. Weiler, The Constitution of Europe, (Cambridge University Press, 1999) and L.

Wiedentop, Democracy in Europe, (Penguin, 2000).

2

In P. Riley, Leibniz' Universal Jurisprudence: Justice as the Charity of the Wise, (Harvard University Press

1996), 243.

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The Utopian allure lies at the centre of the European intellectual tradition, rooted deep

in the Platonic idyll. It is the restless, ceaseless desire to harmonise, to perfect, to make as

one. It was this restlessness which possessed Leibniz. And it is the same restlessness

which has possessed European integrationists since 1945; the sense that Europe's destiny

lies in a reunited and rearmed respublica Christiana. But there is, of course, a critical

dierence. For two centuries after Leibniz dedicated his `universal jurisprudence' to the

cause of a European `commonwealth', Friedrich Nietzsche recognised that God was

`dead'. This realisation, he averred, was the peculiar `tragedy' of Europe. Europe needed

a God, it longed for a God. But it no longer believed in a God.

3

So Europe is left with its longing, with the allurements of a revitalised respublica

Christiana that it does not quite believe in. And instead it looks to treaties, and above

all to constitutions. It is fascinated by the idea of a European `Union' sealed by a

European constitution. Instead of a belief in God, there is a belief in law. It is

something of a point of faithÐat least amongst European lawyersÐthat the European

Community was secured by law, by the role of the European Court of Justice

developing all kinds of doctrines, of supremacy, of direct eect and so on. The

lawyers, it is implied, have made the Community what it is today.

4

Within the context of an intensely legalistic vision of European integration, it is easy

to see why so many commentators are so readily tempted by the allure of constitu-

tionalism; to seek the retrospective legitimation of juristic power by establishing a

putatively authoritative constitutional `discourse'.

5

It is the legalistic equivalent of the

politicians' particular fancy for more and more treaties. And it attaches to the notion

that a treaty framework, which might pass for a constitution, can somehow encapsu-

late and articulate an appropriate public philosophy. Thus, within the existing Treaty

framework can be found a handful of rhetorical scatterings which gesture to some kind

of political morality. Article 6 TEU proudly proclaims certain `foundations', being

`principles of liberty, democracy, respect for human rights and fundamental freedoms,

and the rule of law'. Here perhaps is the public philosophy of the Union. Article 2 EC,

meanwhile, merrily proclaims all manner of essentially economic aspirations, hoping

to inspire its citizenry with the prospect of `sustainable and non-in¯ationary growth'.

But it is here that the danger liesÐin the assumption that the future of Europe

depends upon the integrity of its political, economic, or even constitutional order, that

its legitimacy can be secured by the right phraseology in the right treaty articles. Public

philosophies are not found in treaty articles, and neither are constitutions. Still less are

they found in vague phrases and wistful aspirations. A public philosophy is a state of

mind, something re®ned by the political imagination. It is, ultimately, a matter of

belief. If Europe has a future it must be something that Europeans believe in, not

something the legitimacy of which is assigned merely by treaties and courts of law.

The purpose of this review article is to suggest that the `new' Europe has been too

easily distracted by the temptations of constitutionalism. The ®rst part of the article

will discuss the ideas presented in Joseph Weiler's recently published collection of

March 2001 The Search for a European Political Imagination

#Blackwell Publishers Ltd. 2001 25

3

F. Nietzsche, Thus Spoke Zarathustra, (Penguin 1969), 274.

4

For a recent discussion of the nature of European law, emphasising its instrumental and de®ning qualities,

see E. Denza, `Two Legal Orders: Divergent or Convergent?', (1999) International and Comparative Law

Quarterly, pp. 257±284.

5

As has been repeatedly emphasised by critical legal scholars, and others indeed, this recourse to such a

`discourse' is common to liberal constitutionalism. For a seminal discussion, see M. Tushnet, `An Essay

on Rights', (1984) 62 Texas Law Review pp. 1363±1403.