The Perils of ‘As If’ European Constitutionalism

Date01 September 2016
Published date01 September 2016
The Perils of As If European Constitutionalism
Peter L. Lindseth*
Abstract: Thisreview article offers thoughtson Kaarlo Tuoris recent book, EuropeanCon-
stitutionalism,and more particularly on what he calls the disciplinary contestover the legal
characterisation of the EU and its law.Asthebooks title suggests, Tuori privilegesthe con-
stitutional perspective in that contest, so much sohe freely admitsthat his analysis pre-
determine[s]how the EU and its law will be portrayed. And thereinalso lies the booksmain
weakness.Tuoris predete rmined constitutionalinterpretation, 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 EUslackofconstitu-
tional power in thisrobust sense derives from the absence of the necessarysocio-political un-
derpinnings for genuine constitutional legitimacywhat we can call the power-legitimacy
nexus in EU public law. To borrow Tuoris own evocative phrase, the EU possesses at best
aparasiticlegitimacyderived from the morerobust constitutionalismof the Member States
as well as from the positive connotations that using constitutionalterminology evokes re-
gardless of its ultimate aptness. The result is an as ifconstitutionali 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 constitutionalismdirectly, something that legal eliteswhether EU judges,
lawyers, or legal scholarsignore 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, democracyis 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. 696718.
© 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 Tuoris 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 perspectiveusing a
constitutional vocabularyare not innocent choicesbut in fact predetermine how the
EU and its law will be portrayed(1).This is quite an acknowledgment. To Tuoriscredit,
throughout the book he endeavours to be alert to the perspectivism of [his] enterprise
(358) while striving to be open to mutual learningamong the alt ernative
characterisations of EU public law with which he engages most consistently: the interna-
tional and the administrative (2).
Even as Tuoris intellectual openness warrants our admiration, a number of questions
inevitably come to mind as the reader proceeds through the book: Is Tuoris predeter-
mination of the constitutionalcharacter 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
perspectivismas 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
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 yto analyse EU law (4). Tuori n otes that the
Treatys failure could be seen as a popular rejection of the idea of European constitu-
tionalism however def‌ined. This rejection, in Tuoris view, opened a wide discrepancy
between the legal and political culture of the European elites and of the general public
(4). He laments the publicsresistanceto 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 lawand even in an inter-
national lawcontext too(4). He then proceeds to argue that the scholar is free to ig-
nore the purported de-constitutionalisationof 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.
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 Tuorisbook
makes abundantly clear, the social actors he cares about are EU judges, lawyers and
See, e.g., L. Hooghe and G. Marks, A PostfunctionalistTheory of European Integration: From Permissive
Consensusto Constraining Dissensus,(2009)39British Journal of Political Science,123.
European Law Journal Volume 22
©2017JohnWiley&SonsLtd. 697

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