The Making of a European Constitution. Judges and Law Beyond Constitutive Power – By Michelle Everson and Julia Eisner

• Date: 01 January 2011
• Author: Ross Carrick
• Published date: 01 January 2011
• DOI: http://doi.org/10.1111/j.1468-0386.2010.00542_1.x

eulj_542138..148

BOOK REVIEWS

The Making of a European Constitution. Judges and Law Beyond Constitutive Power. By

Michelle Everson and Julia Eisner. London and New York: Routledge, 2009. xii +244

pp. Hb. £39.95.

The Making of a European Constitution is a challenging read—conceptually complex

and analytically rich. The following review spells out the authors’ core argument,

followed by a few critical observations.

The analytical starting point that gives context to this book is the death of the

constitutional axiom—or, in the words of the authors, ‘constituicide’ (chapter one). In

their view, the constitutional axiom is the idea of political settlement, whereby political

communities (such as nation states), and the political institutions that operate therein,

derive their legitimacy and authority from an agreement between the people of a given

community as to the nature, the form and objectives of that newly constituted

community—a (political) constitutive moment. According to axiomatic theory, the

constitutional legitimacy of law and legal systems (as sites of, for example, constitutive

power) originates from such a politically constituted settlement, ie a constitution. This

follows a kind of Kelsenian logic, whereby the political settlement embodies the foun-

dational Grundnorm upon which the law and the legal system are legitimated. Consti-

tuicide, then, is both a normative evaluation of this premise and an empirically

verif‌iable observation in relation to the EU.

Normatively, the ‘death’ of which the authors speak is an articulation of an enduring

legacy in constitutional theory, which is derived from a politically tumultuous and

violent early to mid-twentieth century in Europe. As a result of this, the legitimacy of

the political settlement (ie the European nation state) has been cast into doubt. Accord-

ingly, the authors argue that political settlements are exclusionary and un-ref‌lexive—

smothering of any potential revolutionary politics (chapter seven). Additionally,

settlement provides a pejoratively mythological legitimacy for law, legal systems and, in

particular, constitutional adjudication by courts. It is a kind of a priori legitimacy that

circumvents deeper and more socially relevant legitimacy questions. Empirically, they

observe that the EU has failed to reach such a settlement—signif‌ied (though not

def‌ined) by the failure of the European Convention to (politically) constitute a Euro-

pean polity. This failure therefore begs the question as to the legitimacy of Union law

and, most signif‌icantly, its constitutionalisation of the EU. Constitutionalisation, the

authors argue, is the process by which Union law—at the national and EU level—

serves to def‌ine and generate the constitutional parameters of the EU polity and the

institutional relationships therein (ie a constitutive or polity-generative function). They

demonstrate important examples of this: the careful development and maintenance of

the single market; the direction of European integration in terms of f‌inalité (eg a federal

EU); and the balancing of institutional competences (chapter two). In this way, the

post-settlement context of the EU exposes the (already present) legitimacy questions to

even greater scrutiny.

Given the foregoing, the authors’ principal question is: according to what stan-

dards or normative criteria can the practice of Union law—at the domestic and EU

European Law Journal, Vol. 17, No. 1, January 2011, pp. 138–148.

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