Deliberative Constitutional Politics and the Turn Towards a Norms‐Based Legitimacy of the EU Constitution*

• Date: 01 July 2005
• Published date: 01 July 2005
• DOI: http://doi.org/10.1111/j.1468-0386.2005.00268.x
• Author: Carlos Closa

Deliberative Constitutional Politics and the

Turn Towards a Norms-Based Legitimacy

of the EU Constitution*

Carlos Closa

The Convention on the Future of Europe drafted a Constitution for the EU, later

adopted by the IGC.1Many would argue that this is hardly something new, since the

Union already had a functional or de facto constitution, whilst others may seek to revive

the classic dispute about whether or not a formal treaty can be considered a constitu-

tion. Leaving aside these doctrinal debates, the EU constitution implies an act of con-

stitutional re-foundation with potential implications for the transformation of the EU’s

legitimacy. A constitution includes certain moral norms with claims to universal valid-

ity that transform a mere basic law in a given legal system into a norm with deonto-

logical status. Accordingly, the hypothesis in this paper is that the Draft Constitution

advances the construction of the EU as a norm-based entity which, a priori, may assist

in creating the basis for a model of citizens’ allegiance and loyalty akin to Habermas’

constitutional patriotism. Naturally, the ambition is very modest: it is not argued that

this is the only legitimacy parameter of the draft constitution, or even the most impor-

tant one in empirical terms. Nor is it argued that normative theoretical analysis sup-

plants or creates empirical sociological evidence.

The argument proceeds in the following way. Section I presents three models that

relate legitimacy (of the polity and the constitution) with specific models of EU con-

stitution-making in the form of Treaty-making, identity-based constitution-making,

and norm-based constitution making. Their respective proponents blend specific

combinations of empirical evidence and more or less explicit normative theoretical

proposals and, hence, each of these prioritise different analytical levels. From the nor-

mative preference for the third model, Section II explores whether the drafting proce-

dure followed for the EU constitution has altered the empirical and normative

European Law Journal, Vol.11, No. 4, July 2005, pp. 411–431.

© Blackwell Publishing Ltd. 2005, 9600 Garsington Road, Oxford OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

* Universidad de Zaragoza. Research for this paper is supported by the CIDEL Project (Citizenship and

democratic legitimacy in the EU) funded by the V Framework Programme of the EU (Contract No

HSPECT-2002-00144) and the projectPolítica Constitucional de la Unión Europea, financed by the Spanish

Ministry of Science and Technology (MCYT) SEC2003-00253. I am particularly indebted for the com-

ments on earlier drafts of this paper received from Erik Eriksen, John Erik Fossum,Agustín Menéndez,

and Julio Baquero.

1References to the Convention draft are made to the last available, published on 18 July 2003, CONV

850/03.

limitations inherent in the first two models. Section III ponders the move towards a

more norm-based constitutionalism in the current round of reform, and the specific

concerns this raises.

I Legitimacy and Constitution Making in the EU: Three Models

The drafting of a Constitution of the EU shifts the debate on the legitimacy of the

EU’s political and legal order to new ground. Whilst the rhetoric appealed to the his-

torical transformation implied by the Eastern enlargement, and the almost complete

re-unification of the continent called for a new foundation of the EU, the transition

from Treaty to Constitution raises concerns (not always explicitly spelled out) about

the viability, validity,and legitimacy of the new political and legal construction. In par-

ticular, the current ‘constituent process’ requires an elucidation of its normative basis.

In this juncture, the general question of EU legitimacy meets with the more specific

need to clarify the legitimacy requirements of the constituent process.

The relationship between the legitimacy of the EU and the legitimacy of the model

of constitution making can be mapped out from the three strategies of legitimation for

the EU that Erikssen and Fossum have distinguished. The first conceives the EU in

terms of a problem-solving entity based on a narrow economic citizenship. The second

sees it as a value-based community premised on social and cultural citizenship. The third

constructs it as a rights-based post-national union, based on a full-fledged political cit-

izenship.2These three models can be linked to models of ‘constitution making’, defined

as the processes through which actors create foundational and fundamental rules of

the polity.

The three models of constitution-making provide explicit or implicit normative

responses to the question: what for the EU constitution? The logic followed by each of

European Law Journal Volume 11

412 © Blackwell Publishing Ltd. 2005

2E. O. Erikssen and J. E. Fossum, ‘Europe in search of its legitimacy.Assessing strategies of legitimation’.

Paper submitted to the CIDEL Conference, ‘The Forging of Deliberative Supranationalism in the EU’,

Florence, 7–8 February 2003.

Type of entity Conception of Strategies of Models of

rationality legitimation constitution-

making

Problem-solving Instrumental or Efficiency/interest- Treaty-making

entity strategic maximation

Identity (value)-based Contextual Collective self- Undetermined

community understanding (‘constituent

subject as a

previous requisite’)

Norms (rights)-based Communicative Justice and norms Deliberative post-

community of fairness national

constitution

making

Table 1. Legitimation strategies and normative models of constitution-making.