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

[...]... questions can be and are posed Taking a data-set made up primarily of former judges of the ECJ, and focusing the analysis upon the pivotal European ‘constitutional’ principle of the balance of powers’, the effort is one of ascertaining why European judges feel confident in asserting the constitutional authority of European law Which are the means that European judges deploy in order to justify their readily... contested national, supranational, post-national and transnational constellations The emphasis of this book upon European processes of ‘constituting’ and ‘constitutionalisation’ is therefore best understood, not as an introspective European act of examination, explanation and analysis of particular postnational assaults on the leading paradigms of modernity, but, rather, as an effort to deploy Europe as a mirror... social equalisation are stripped away, and law is forced to face a reality of societal contestation – which, by the same token, allows for the political articulation of social concerns and values that are otherwise repressed and disregarded within governing (constitutional) myths – legal acts of social ordering and mediation may also take on a truly universal character that transcends, rather than destroys... society, a mechanism of social interventionism and integration, which is beholden to extra-legal aims and values and which has measurable impacts within a real-world of societal organisation Law exists at the very heart of a contradiction On the one hand, it is and must preserve its status as an autonomous institution, set apart from the real-world of social interaction On the other hand, however, it is also... integration have simply stripped away all myth and all illusionary narratives of constitutional and legal perfection to reveal true social process, they have also revealed the true face of law, as The transfigured constitution 11 well as its underlying and inspirational modern mission of structuring societal integration within a real, rather than imagined, world Public alienation in the face of a constitutional... such as the European Parliament, European Commission and Council Academic lawyers have evolved very many theories to explain and to justify the unusual and unusually potent role that national and European lawyers have played in entrenching the European legal order throughout the continent Thus, to give only one example, it can be argued that the assertion of The transfigured constitution 5 the dominance... dominance and legitimacy of the European legal order is always only conditional in nature, since European law is derived from and, therefore, dependent upon the constitutive power and approbation of national constitutional orders for its existence Equally, however, non-legal academics have also sought to cast the apparent expansionism of the European legal order in a less pejorative light The European legal... (legal reflexivity) and, further, sustains and orders societal contestation (legal universalism) within Europe, the constitutional activities and aspirations of European judges and lawyers are not a part of the end of the constitutional story Instead, they are a blueprint for legal process within the next chapter of the constitutional story; a constitutional story which is now witness to the transfiguration... of your constitution? III Law in the making of the European constitution Both national and European lawyers play their important part in the creation of a constitutional order within Europe At national level, member state judiciaries have allowed European law to encroach upon their own established jurisdictions, often setting the political preferences of their member state governments aside – and sometimes... often accidental, undermining of the axiomatic certainties of national polities and constitutions, 14 The making of a European constitution is accompanied by tentative and stumbling endeavours to retain many of the normative qualities of the liberal (nation) state and its concomitantly liberal constitutional settlement within its own ‘organic’2 organisational web of legal and institutional evolution . mind of European law ‘Seeing into the mind of law and lawyers’ is not an easy task. In particular, and as a part of its integral vocation to remain ‘apart’. example, it can be argued that the assertion of 4 The making of a European constitution the dominance and legitimacy of the European legal order is always