Oxford Journal of Legal Studies Advance Access originally published online on July 16, 2009
Oxford Journal of Legal Studies 2009 29(3):579-602; doi:10.1093/ojls/gqp014
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From Myth to Fiction: Why a Legalist-Constructivist Rescue of European Constitutional Ordering Fails*
Correspondence: Postdoctoral Research Fellow, Max Planck Institute for Comparative Public Law and International Law (Heidelberg, Germany); JSD, LLM, Yale Law School. Email: kuo{at}aya.yale.edu.
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Abstract |
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The defeat of the Constitutional Treaty by French and Dutch voters in 2005 and the following stalemate of the Lisbon Treaty have sparked a soul-searching process for European constitutional scholarship. Among the numerous academic efforts devoted to contemplating the future of European constitution, Michelle Everson and Julia Eisner's The Making of a European Constitution: Judges and Law Beyond Constitutive Power deserves a close look. Everson and Eisner argue for a postconstituent view of European constitutionalization, which they call ‘Rechtsverfassungsrecht’. Departing from the myth of the constituent power, they interpret the development of a European constitution as a self-creating process by which the ordinary legal system gives itself a set of core values and thereby remakes itself into a constitutional order. Moreover, against the criticisms of juridification, they defend this lawyer-centred process of European constitutionalization as incorporating politics into the daily operation of the legal system. Engaging with Everson and Eisner's argumentation, I argue that their account of European constitutional development does not so much put out a realist theory of the EU constitutionalization as sets out a realist academic lawyering for the next round of European constitutional politics, which is shared among European constitutional scholars. Contrasting this community-based legal profession in Europe with the situation of epistemic pluralism in American jurisprudence, in this article I observe that a lawyer-centred European constitutional theory as Everson and Eisner's book illustrates is premised on an inherited consensus that has held a European legal profession together. However, this lawyer-centred account of European constitutionalization presumes either the projection of a professional community onto a Europe-wide civic culture or the self-appointment of legal professionals as the fiduciary of the citizenry. Each is a fiction, however. This fictional character of the legalist-constructivist strategy to European constitutional politics is the underlying cause of the dilemma facing European constitutional ordering.
The arguments made in this article originated and benefited from discussions with Neil Walker when I was a Max Weber Fellow with the European University Institute in 2007–08. I would like to thank Gráinne de Búrca for her suggestions on this article and Ewan McKendrick for his help in his editorial capacity. Hui-Wen Chen's and Eleni Martsoukou's reads of and comments on earlier drafts of this article are heartily acknowledged. Any errors are mine.