The asymmetries of pouvoir constituant mixte

Date01 September 2019
Published date01 September 2019
The asymmetries of pouvoir constituant mixte
Vlad Perju*
Wisely resisting his contemporaries' calls to sever the legitimacy of political power from an account of its origins,
Professor Habermas's recent work ties the authority of the European Union to a hybrid constituent will that
represents the deep interconnection between the national and the supranational levels of government.
traditional models of political integration, where the higher political units subsume the authority of lower ones,
Habermas interprets Europe's postWorld War II political construct as a rejection of and an alternative to hierarchical
subordination. States continue to coexist alongside the Union that their own citizens have created.
*Professor, Boston College Law School and Director, Clough Center for the Study of Constitutional Democracy, Boston College. This Symposium
contribution, in honour of Professor Jürgen Habermas's 90th birthday, develops an argument first published in Dual Sovereignty in Europe? A Critique of
Habermas's Defense of the Nation State(2018) 53 Texas International Law Journal, 49.
See, e.g., J. Habermas, The Crisis of the European Union: A Response (Polity, 2012); J. Habermas, The Lure of Technocracy (Polity, 2015); J. Habermas, Citizen
and State Equality in a Supranational Political Community: Degressive Proportionality and the Pouvoir Constituant Mixte(2017) 55 Journal of Common Market
Studies, 171.
Received: 21 August 2019 Revised: 25 August 2019 Accepted: 29 August 2019
DOI: 10.1111/eulj.12340
Eur Law J. 2019; . © 2019 John Wiley & Sons
This invited Symposium contribution discusses Jürgen Habermas's celebrated and influential theory
of pouvoir constituant mixte. In that account, the EU is constituted by a double authority: that of
citizens of nationstates and that of (the same) citizens as subjects of the future EU. I argue that
Habermas's theory is convincing only if the two constitutionbuilding subjectscitizens of the already
constitutednationstates and citizensof the tobeconstituted European Union are positionedsym-
metrically in relation to each other. I argue that Habermas's construction is, in fact, asymmetrical. I
identify three asymmetries: of expectations, of function and of origins. I argue that these
asymmetries place the role of citizens as members of nationstates in such an advantageous position
that it would be irrational for citizens in their other capacity, as citizens of the tobeconstituted
European Union, to participate in the constituent authority in the terms proposed and defended
by Habermas.
That much seems apparent. More challenging is to discern how this new political formation, which under the
pressure of recurrent crises appears rife with unresolved tensions and never far enough from the precipice,
nevertheless rests on normative foundations that are, upon reflection, defensible and resilient. Enter pouvoir
constituant mixte. Habermas's celebrated philosophical account presents the EU as if constituted by a double
authority: that of citizens of nationstates and that of (the same) citizens as subjects of the future EU. In their first
role, citizens see their states as guarantors of the already achieved level of justice and freedom that must be
protected from threats that include, during the postintegration phase, intrusions and encroachments of an asyet
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