A European Constitution in a Multinational Europe or a Multinational Constitution for Europe?

• Author: Vito Breda
• Date: 01 May 2006
• Published date: 01 May 2006
• DOI: http://doi.org/10.1111/j.1468-0386.2006.00320.x

330 © 2006 The Author

Journal compilation © Blackwell Publishing Ltd. 2006

A European Constitution in a

Multinational Europe or a Multinational

Constitution for Europe?

Vito Breda*

Abstract: What is the role of the nation-state in the process of European constitutional

integration? How can we transcend our divisions without marginalising those who believe

in them? This article critically analyses the theoretical bases of the Treaty Establishing a

Constitution for Europe and tries to explain why its ratification is so problematic. Authors

such as Habermas have argued that a new European model of social cohesion is needed,

and Habermas suggests that the sense of ‘community’ in a democratic Europe should be

founded exclusively on the acceptance of a patriotic constitution. However, this view is

criticised by authors such as Weiler and MacCormick. In this article, I explain the limits

of these theoretical analyses. I will argue that a European constitutional project can be

more than formally legal only if two normative conditions are satisfied: it is the result of

public debate and the European Constitution includes the procedures for the recognition

of European national diversity. I suggest that a theory of constitutional multinationalism,

similar to the one proposed by Tully, might provide an attractive model for a European

social integration. The article is divided in two parts. In the first, I explain why Haber-

mas’ constitutional patriotism or MacCormick’s states based Europe cannot provide a

convincing theoretical model for a socially and constitutionally integrated Europe. In the

second part, I will give an outline of Tully’s idea of multinational democracy as a model

for a European constitutional integration.

IA Patriotic or a Civic Europe?

Thirteen years after Maastricht, the European Union proposes the adoption

of a constitution. Why do we need a constitution? The Treaty on European

European Law Journal, Vol.12, No. 3, May 2006, pp. 330–344.

© 2006 The Author

Journal compilation © 2006 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Cardiff Law School,Cardiff University.I am indebted to Emilios Christoduolidis,Neil MacCormick, James

Tully, Ian Ward, and Stephen Tierney for their very helpful comments. This article would not be the same

without Ji í P ibá and our endless discussions on Habermas and European constitutional identities. An

early draft of this article was presented at the First European Socio-Legal Conference in O ati with the finan-

cial help of the British Academy. During the conference,I received many useful comments from too many

individuals to remember them all, for those not mentioned below let me express my gratitude.I would like to

acknowledge the helpful critiques of Roger Cotterrell, Steward Field, and Wolf Heydebrand. Needless to

say, responsibility for any error in the present work rest with the author. Lastly, I should like to thank

Stefania Morandini and Rhian Minty for their help during the last stages of this article.

nˇ

nˇ

rˇ

rˇ