From Balance to Conflict: A New Constitution for the EU

Published date01 March 2016
AuthorMark Dawson,Floris Witte
Date01 March 2016
DOIhttp://doi.org/10.1111/eulj.12158
From Balance to Conflict: A New
Constitution for the EU
Mark Dawson and Floris deWitte*
Abstract: As the crisis (and the Unions response to it)further develops, one thing appears
clear: the European Union post-crisis will be a very different animal from the pre-crisis EU.
This article offers an alternative model for the EUs constitutional future. Its objective is to
invert the Unions current path-dependency: changes to the way in which the Union works
should serve to question, rather thanentrench, its future objectives andtrajectory. The paper
argues that the post-crisis EU requiresa quite different normative, institutional and juridical
framework. Such a framework must focus on reproducing the social and political cleavages
that underlie authority on the national level and that allow divisive political choices to be
legitimised. This reform project implies reshaping the prerogatives of the European institu-
tions. Rather thanseeking to prevent or bracket political conict,the division of institutional
competencesand tasks should be rethought in order to allowthe EU institutions to internalise
within their decision-making process the conicts reproduced by social and political
cleavages. Finally, a reformed legal order must play an active role as a facilitator and
container of conict over the ends of the integration project.
I Introduction
For the rst time since the start of the Euro-zone crisis, proposals, visions and agendas
are being discussed about how to redesign the integration project in order to structur-
ally overcome the weaknesses that the crisis has exposed. One thing appears clear: the
European Union post-crisis will be a very different animal from the pre-crisis EU. In
previous articles, we have analyzed how the management of the crisis has undermined
(or at least exposed the existing problems with) the substantive, institutional and spatial
balance that was laid down in the Treaties. In doing so, we argued that the Union risks
destabilising its commitment to the values of individual and collective self-
determination, which are indispensable for its legitimacy.
1
We have also argued that
the different proposals for the future of Europe that are currently being discussed all fail
to incorporate these values or articulate them in a way that strengthens, rather than
weakens, the EUs legitimacy and stability.
2
What these proposals have in common is
their presumption that signicant changes to the Unions set-up are necessary in order
for the Union to meet its objectives.
* Mark Dawson is a Professor of European Law and Governance at the Hertie School of Governance in
Berlin. Florisde Witte is an Assistant Professorin the Law Department of the London School of Economics
and PoliticalScience. Many thanks to DamianChalmers, Elise Muir andAgustin Menéndez for their insight-
ful comments. Theusual disclaimer applies.
1
M. Dawson and F. de Witte,Constitutional Balance in the EU afterthe Euro-crisis, (2013) 76 Modern Law
Review,817844.
2
M. Dawson and F. de Witte, Self-determination in the Constitutional Future of the EU(2015) 21
European Law Journal, 371383.
European Law Journal, Vol. 22, No. 2, March 2016, pp. 204224.
© 2015 John Wiley & Sons Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
This article offers an alternative model for the EUs constitutional future. Its objec-
tive is to invert the Unions current path-dependency: changes to the way in which
the Union works should serve to question, rather than entrench, its future objectives
and trajectory. Our conceptual starting point is (as in our previous articles) a commit-
ment to self-determination. Self-determination offers a richer framework than the
concept of democracy (often used in the context of the EU), as it is able to articulate
the importance of the citizensactual capacity to affect the economic, social and moral
texture of society (rather than limiting its demands to those of formal voice in the
decision-making process). As will be discussed subsequently, this distinction has impor-
tant consequences for the way in which we should think about the Unions future.
Ironically, in fact, it is often domestic commitments to formal democracy that stand
in the way of a meaningful European project of self-determination.
After briey outlining how the Unions response to the Euro-crisis has undermined the
concept of constitutional balancethe EUs pre-crisis structure of self-determination
(Section 2)the paper will argue that the post-crisis EU requires a quite different consti-
tutional framework. Such a framework must focus on reproducing the social and polit-
ical cleavages that underlie the idea of substantive balance on the national level and that
allow divisive political choices to be legitimised (Section 3). This reform project implies
reshaping the prerogatives of the European institutions. Rather than seeking to prevent
or bracket political conict, the division of institutional competences and tasks should be
rethought in order to allow the EU institutions to internalise within their decision-
making process the conicts reproduced by social and political cleavages (Section 4).
This, primarily, requires a shift in power from executive and technocratic institutions to-
wards representative bodies. This normative and institutional re-alignment also requires
a rethinking of the question of political equality that underlies spatial balance in the EU.
Rather than balancing the equality of states and citizens within existing institutions, it is
argued that we should move towards two separate institutionsone intergovernmental
and one supranationalthat respect and reect the full equality of their constituents.
The recent trend, we argue, that understands national parliaments as the bulwark of
democratic authority in the EU threatens, rather than protects, the concept of self-
determination in Europe (Section 5). Finally, in establishing and securing these values,
we see an important role for law. A reformed legal order would play an active role as
a facilitator and container for political deliberation over the ends of the integration pro-
ject. It would in this sense leave important substantive questions to the political sphere
instead of trying to steer policy choices within formal legal discourse (Section 6).
This reconstitution of the EUs normative, institutional and legal dimensions is neces-
sary for it to further the project of self-determination. Rather than entrenching certain
conceptions of the good lifeor a particular balance between politics and the market, the
EU must serveas any political project ultimately mustto question these conceptions.
Without such drastic changes, the integration project is likely to continue to generate the
despondency and lethargy that are as much a cause as a symptom of its legitimacy crisis.
II Constitutional Balance and Its Disintegration During the Euro-crisis
In a previous article, we argued that the stability and legitimacy of the Union has been
undermined by the Member Statesresponses in containing the Euro-crisis.
3
We argued,
3
Dawson and De Witte, above, n. 1.
European Law Journal Volume 22
© 2015 John Wiley & Sons Ltd. 205

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