Editorial

Date01 June 1997
AuthorFrancis Snyder
Published date01 June 1997
DOIhttp://doi.org/10.1111/1468-0386.00016-i8
103
Editorial
Francis Snyder
It is widely accepted by legal scholars and others that the European Union has a
constitution in the material or, better, substantive sense. Few would deny that the EU
has a set of fundamental norms. However, the connotations and implications of this
simple statement are very controversial. For my part, I would assert that we can go
further and conceive of the EU constitution as consisting of three dimensions. One is
constitutional norms or principles. The second is constitutionalising processes. The
third is constitutional culture. The articles in this issue of the ELJ are in my view
united by a concern for these three dimensions. More importantly, as seen by their
authors, the articles are expressly devoted to clarifying and elaborating various models
of the EU constitution.
The article by Craig aims to apply republican constitutional theory to the EU
constitution. It provides an empirical and normative assessment of democracy and
rule-making within the European Community. It takes seriously the question as to
how to envisage and evaluate the idea of a democracy based upon institutional
balance, a dominant theme in the current discussions at the Intergovernmental
Conference. Craig suggests that republican constitutional theory provides a normative
justification for the creation of a stable form of political ordering, which is neither a
state nor an intergovernmental organisation, but which provides for representation of
differing interests in the legislative process designed to achieve the public interest.
The article by Reich uses the notion of a European constitution in two ways: on one
hand, in his view the EU already has a constitution, though of a particular kind; on
the other, ‘the constitution’ is a metaphor to describe what the author calls a
fundamental process. The common element is Reich’s conception of the EU constitu-
tion as an incomplete, dynamic and evolving body of law. Its core is the gradual
establishment and implementation of individual and collective rights as subjective
rights. The article borrows from Jellinek’s conception of subjective public rights in
order to pose the question as to whether the EU constitution can really be a charter
for citizens. The model of the EU deployed in the article is thus processual and centred
on a specific conception of citizenship.
Constitutionalism, citizenship, and beliefs and attitudes about law – in other words,
legal culture – are closely associated. A very important aspect of the EU constitution
is legal culture, notably in its specific form as constitutional culture. The existence of
an EU legal culture is sometimes denied, however, for example by certain sociologists
of law. It is not surprising, therefore, that legal scholars have so far shown relatively
little interest in EU constitutional culture. Yet EU constitutional culture partakes of
Western legal culture in being characterised, according to Wieacker, by personalism,
legalism and intellectualism. Moreover, a specific constitutional culture is an integral
part of the EU constitution.
European Law Journal, Vol. 3, No. 2, June 1997, pp. 103–104
© Blackwell Publishers Ltd. 1997, 108 Cowley Road, Oxford OX4 1JF, UK
and 350 Main Street, Malden, MA 02148, USA

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