The Perils of ‘As If’ European Constitutionalism

• Date: 01 September 2016
• Published date: 01 September 2016
• DOI: http://doi.org/10.1111/eulj.12204

The Perils of ‘As If ’European Constitutionalism

†

Peter L. Lindseth*

Abstract: Thisreview article offers thoughtson Kaarlo Tuori’s recent book, EuropeanCon-

stitutionalism,and more particularly on what he calls the ‘disciplinary contestover the legal

characterisation of the EU and its law’.Asthebook’s title suggests, Tuori privilegesthe con-

stitutional perspective in that contest, so much so—he freely admits—that his analysis ‘pre-

determine[s]how the EU and its law will be portrayed’. And thereinalso lies the book’smain

weakness.Tuori’s predete rmined ‘constitutional’interpretation, like so muchof the dominant

legal discoursein the EU today, ultimately obscuresthe core contradiction in EU public law.

National institutions are increasingly constrained in the exercise of their own constitutional

authority but supranational institutions are unable to f‌ill the void because Europeans refuse

to endow them with the sine qua non of genuine constitutionalism:the autonomous capacity

to mobilise f‌iscal and human resources in a compulsory fashion. The EU’slackofconstitu-

tional power in thisrobust sense derives from the absence of the necessarysocio-political un-

derpinnings for genuine constitutional legitimacy—what we can call the power-legitimacy

nexus in EU public law. To borrow Tuori’s own evocative phrase, the EU possesses at best

a‘parasiticlegitimacy’derived from the morerobust constitutionalismof the Member States

as well as from the positive connotations that using ‘constitutional’terminology evokes re-

gardless of its ultimate aptness. The result is an ‘as if’constitutionali sm, the core feature

of which is an increasingly untenable principal-agent inversion between the EU a nd the

Member States, one with profound consequences for the democratic life of Europeans. The

sustainabilityof integration over the long term dependson confronting these adversefeatures

of ‘European constitutionalism’directly, something that legal elites—whether EU judges,

lawyers, or legal scholars—ignore at their peril.

This is a book about the theoreticalbases of the European constitution. The book adoptsa constitutional

perspective and employsconstitutional vocabulary. These are not innocent choices but predeterminehow

the EU and its law will be portrayed (1).

At issue is parasitic legitimac y …[or]the positive connotationsthat constitutional vocabularyevokes or at

least is expectedto evoke. Attemptsto attain parasitic legitimacycan be detected in Europeanconstitutional

discourseas well (36) (emphasis in original).

[C]onstitutional concepts [are]coveted objects in the power gamesof constitutional theory; hegemony over

the def‌initionof, say, ‘democracy’is a crucialstake in these games (123).

[T]he disciplinary contestover the legal characterisation of theEU and its law …can be depicted asa battle

over legal language and concepts …: what,exactly, are the legal concepts that shouldbe applied to the EU

and its legal system? The stakesare high (356).

†

Review of K. Tuori,Europ ean Constitutionalism (Cambridge UniversityPress, 2015). All page citationsto the

bookare in parentheses in thetext. All other citationsare in the footnotesbelow. Consistent withthe style of the

book under review,the European Court of Justiceis abbreviated below as ECJ ratherthan CJEU.

* Olimpiad S. Ioffe Professorof International and ComparativeLaw, and Director of International Programs,

University of Connecticut Schoolof Law. I would like to thank the editors, particularly Agustín Menéndez

and AlexanderSomek, for extremely useful guidance in f‌inalisingthis review article.

European LawJournal, Vol. 22, No. 5, September 2016,pp. 696–718.

© 2017 John Wiley & SonsLtd. 9600 Garsington Road, Oxford,OX4 2DQ, UK

and 350 Main Street, Malden,MA 02148, USA

I Introduction: Ref‌lections on Methodology and Interpretive Perspectives

Among the many virtuesof Kaarlo Tuori’s challengingnew book, European Constitution-

alism, two in particular stand out: the transparency of its approach and the sensitivity it

shows to theinterpretive stakes involved.In the very f‌irst paragraphof the Prologue, Tuori

admits that his decisions to analyse EU law from a ‘constitutio nal perspective’using a

‘constitutional vocabulary’are ‘not innocent choices’but in fact ‘predetermine how the

EU and its law will be portrayed’(1).This is quite an acknowledgment. To Tuori’scredit,

throughout the book he endeavours to be ‘alert to the perspectivism of [his] enterprise’

(358) while striving to be open to ‘mutual learning’among the alt ernative

characterisations of EU public law with which he engages most consistently: the interna-

tional and the administrative (2).

Even as Tuori’s intellectual openness warrants our admiration, a number of questions

inevitably come to mind as the reader proceeds through the book: Is Tuori’s predeter-

mination of the ‘constitutional’character of the EU really just ‘a token of the inevitable

perspectivism which imbues all law’(1; see also 78)? Is what Tuori calls the ‘battle over

legal language and concep ts’(356)—a notion that he ultima tely takes from Schmit t

(122-23) via Koskenniem i and Bourdieu (356)—really just a question of legal

‘perspectivism’as he def‌ines it (see especially chapter 3)? Law is a system of interpreta-

tion, to be sure, but even Tuori recognises that ‘we are of course not free to adopt any

framework whatsoever; if our concepts restrict how we see the object, the object sets

restrictions on our conceptual and methodological freedom’(2). It is never entirely

clear, however, in what way Tuori b elieves his ‘object’(‘the EU and its law’)sets

restrictions on the concept ual and methodological ap proach he ultimately takes

(‘constitutionalism’).

A telling example comes early in the book. Even before Tuori spells out his own un-

derstanding of the nature and scope of EU constitutionalism (a topic we take up in Part

II below), he addresses the failure of the Constitutional Treaty and its impact on his

choice of a ‘constitutional vocabular y’to analyse EU law (4). Tuori n otes that the

Treaty’s failure could be seen as a popular rejection of the idea of European constitu-

tionalism however def‌ined. This rejection, in Tuori’s view, opened ‘a wide discrepancy

between the legal and political culture of the European elites and of the general public’

(4). He laments the public’s‘resistance’to the elite idea of EU constitutionalism because

so ‘much energy has been spent to detach the concept of a constitution from its state

template and to demonstrate its viability in a transnational law—and even in an inter-

national law—context too’(4). He then proceeds to argue that the scholar is free to ig-

nore the purported ‘de-constitutionalisation’of the Lisbon Treaty because it was really

just ‘an insincere speech act, intended to pacify and even delude European citizenry: the

main normative contents remained the same as in the abortive Constitutional Treaty’

(6). Tuori goes further, in fact, arguing that the scholar is in some way compelled to ig-

nore popular rejection of European constitutionalism, no matter how substantively im-

portant it might be to understanding the integration process broadly construed.

1

The

true object of study, he in sists, is the elite legal project itself: ‘the meta-l anguage of

scholars cannot drift very far from the object language of social actors whose ideas, be-

haviour or artefacts they are studying’(5) (emphasis in original). And as Tuori’sbook

makes abundantly clear, the social actors he cares about are EU judges, lawyers and

1

See, e.g., L. Hooghe and G. Marks, ‘A PostfunctionalistTheory of European Integration: From Permissive

Consensusto Constraining Dissensus’,(2009)39British Journal of Political Science,1–23.

European Law Journal Volume 22

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