Examining the Aesthetic Dimensions of the Constitutional Treaty

• DOI: http://doi.org/10.1111/j.1468-0386.2005.00262.x
• Date: 01 May 2005
• Published date: 01 May 2005
• Author: Nathan Gibbs

Examining the Aesthetic Dimensions of

the Constitutional Treaty

Nathan Gibbs*

Abstract: One of the most important issues surrounding the new Constitutional Treaty is

the extent to which it will be able to generate a greater popular identification with the

European integration project. This article explores this issue in more depth by looking at

the role of popular identification in securing polity legitimacy in general. An argument is

then developed that although popular identification and polity legitimacy are often sepa-

rated, from a practical point of view, it is preferable to think of polity legitimacy in such

a way as to incorporate questions of identity and affectivity. The article then outlines a

way in which such a theory can be constructed, termed an ‘aesthetic’ theory of political

legitimacy. Such a theory is then applied to understand both the EU as a distinctive type

of post-state polity and the role that the constitutional tradition might play in securing

its legitimacy.

I Introduction

The draft Constitutional Treaty produced by the Constitutional Convention under the

chairmanship of Giscard d’Estaing has finally secured approval in the IGC despite the

difficulties that had been encountered in securing agreement on the vexed issue of qual-

ified majority voting (QMV). Despite these difficulties, it is noteworthy that the IGC

were concerned to maintain the momentum in favour of a form of ‘constitutional’ set-

tlement rather than a more modest set of assorted Treaty amendments. The reasons for

this seem to range from pragmatic considerations, such as, for example, a reluctance to

waste the earlier work done by the Constitutional Convention process, to more struc-

tural reasons relating to the need to respond to the largely post-Maastricht question-

ing of the legitimacy of the European Union itself.1

This paper will focus its analysis on the latter, more structural reasons for the con-

tinuing centrality of the Constitutional project to the current European integration

agenda. In other words, I will look to explore the significance of the choice of the

European Law Journal, Vol.11, No. 3, May 2005, pp. 326–342.

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

and 350 Main Street, Malden, MA 02148, USA

*Junior Lecturer in Law, University of Limerick. Formerly, Lecturer in Law, University of Reading and

Researcher at the EUI,Florence. I should like to thank Neil Walker and the members of the Legal Theory

Discussion Group at the EUI for their helpful comments and constructive discussions.

1See G. de Burca, ‘The Quest for Legitimacy in the EU’ (1996) 59 Modern Law Review 349; R. Bellamy

and D. Castiglione, ‘Legitimizing the Euro-‘Polity’ and its “Regime”’ (2003) 2 European Journal of

Political Theory 8.

constitutional form as a response to the wider concerns over the legitimacy of the EU.

In particular, the paper will examine what might be termed the possible ‘aesthetic’

dimensions of constitutionality and the current constitutional turn. The ‘aesthetic’

dimension of constitutionalism in this context refers to the way in which constitution-

alism might (or indeed might not) be capable of responding to the EU’s legitimacy

problems by engaging the affective or ‘aesthetic’ faculties of Europe’s citizens. In this

respect, the paper develops out of the work of a number of academic commentators

on European integration, and on its recent ‘constitutional’turn, in particular who have

drawn attention to this aspect of the constitutional debate. Most notably, there are the

contributions of Ward, Haltern, and Walker, who have underlined this dimension in

different ways. Ward sees a particular significance in this aspect of the EU’s legitimacy

problem. According to him, the European project has long suffered from the absence

of and failure to cultivate this type of affective or aesthetic dimension.2For Ward,

however, constitutionalism aspires in vain to fill this gap—such a legalistic response to

that problem will simply not suffice. In examining the current constitutional process,

Haltern has understood it precisely as such an attempt to ignite this type of affective

sentiment in the European public. For these purposes, however, Haltern provocatively

argues that the whole process has been a failure—what has in fact resulted from it is a

type of constitutional kitsch unlikely to inspire any deep aesthetic sentiment on the

part of Europe’s citizens.3In an interesting comment on the draft Constitution, Walker

has argued that the value of the proposed Constitution lies not so much in the possi-

bility of it addressing the ‘passions’ of European citizens but rather, in its appeal to

their more rational instincts.4On this view, constitutionalism carries out a distinctive

function in the EU’s response to the legitimacy problematic. Rather than as an attempt

to kindle public sentiment behind the European project, constitutionalism should be

seen as a structure designed to frame and civilise the disagreements (often passionate

in nature) over the future of the European polity.

Despite their obvious differences,all these contributions to the current debate suggest

that beyond the institutional amendments contained within the Constitutional Treaty,

the overall significance of the choice of the constitutional form within the wider context

of the legitimacy debate needs to be considered. Furthermore, consideration must also

be given to the ‘aesthetic’ dimension of politics and its relationship with constitution-

alism. In part, such a process of reflection might explore certain of the commonplace

and perhaps slightly grandiose rhetorical claims surrounding the way in which the con-

stitutional process was designed to underpin an increased popular affectivity with

regard to the EU. At a deeper level, lawyers should perhaps not ignore the significance

of such apparently rhetorical claims. As I will try to show, the success of the European

project seems to rely on how the claims of ‘eros’ (the ‘aesthetic’ or passionate side of

politics) and ‘civilization’, to use Weiler’s terminology, can be conceptualised and com-

bined.5Constitutionalism has played an interesting historical role in mediating between

these two dimensions of political community and it is being called upon to do so again

in the radically new context of a post-state polity. Is it capable of fulfilling such a role?

May 2005 The Aesthetic Dimensions of the Constitutional Treaty

© Blackwell Publishing Ltd. 2005 327

2I. Ward, ‘Beyond Constitutionalism:the Search for a European Political Imagination’ (2001) 7 European

Law Journal 24.

3U. Haltern, ‘Pathos and Patina: The Failure and Promise of Constitutionalism in the European Imagi-

nation’ (2003) 9 European Law Journal 14.

4N. Walker,‘Europe’s Constitutional Passion Play’, (2003) 28 European Law Review 905.

5See J. Weiler, The Constitution of Europe (Cambridge: Cambridge University Press, 1999).