7 Colum. J. Eur. L. 21 (2001)
Pavlos Elefiheriadis. Lecturer in Law, London School of Economics and Political Science and Visiting Professor, Columbia Law School in Spring Term 2001.
CAN EUROPE HAVE A CONSTITUTION?
Can Europe have a Constitution? The question is complex. All the words involved are ambiguous. First, what do we mean by “Europe”? We casually restrict the term to the European Union forgetting that many states that are part of Europe are not and do not wish to become part of the European Union. Even if our focus is explicitly on the European Union, shall we include the candidate states from Central and Eastern Europe that will most probably accede to the Union in the future? The question matters in a number of ways. Deepening integration among the existing Member States by creating a new Constitution will make accession more difficult for some candidates and therefore delay it.
What do we mean by “Constitution”? There are many types of institutional arrangements that answer to that name. We would understand the term in different ways if asked, for example, “Can Britain have a Constitution?” or “Can Germany have a Constitution?” In these two examples we would stress different parts of the question, bearing in mind the different histories and legal traditions of the two states. But constitutions also have varying degrees of richness. Could we create a Constitution for the whole of Europe solely on the basis of the catalogue of rights and the system of protection enshrined in the European Convention of Human Rights? Or do we need a richer framework for integrated government?
Finally, what do we mean by “can”? One interpretation is that the question refers to whether the various European states are capable of raising themselves above their narrow perspectives for the benefit of a federal ideal. Can the states of Europe sacrifice their immediate interests in the general and long-term interest of regional peace and prosperity? This is a good question but it is not the only one. We must also ask what exactly these constitutional aspirations are. We cannot know whether the states are capable of an ideal before identifying what it is.
The most interesting aspect of the question “Can Europe have a Constitution?” has to do with this uncertainty. The question thus interpreted concerns the defense of constitution-building as an ideal for European integration. If a European Constitution cannot be defended as an ideal, then Europe cannot have one – not in the factual sense of eventually enacting one, but in the normative sense of having a Constitution while maintaining the integrity of its political values. The question is not, therefore, if Europe can achieve a given level of constitutional integration. Our worry is deeper: what exactly is the ideal?
Not everyone will find this an interesting question. There might be two kinds of critics. The first critic, whom I shall call a “federalist,” might say that of course there is an ideal: it is the creation of a federal state of Europe. Because this state will bring lasting peace and prosperity there is no doubt about its desirability. The second critic, whom I shall loosely call the “pragmatist,” will say something very different: whatever the philosophical ideal of political integration, Europe’s ability to have a Constitution has nothing to do with philosophical justifications, but is a practical project depending on processes beyond the commentator’s control. In this view nothing turns on the theoretical defense of European integration. It is enough that the procedures by which it is achieved are legitimate, i.e. more or less the established processes of democracy. This criticism will appeal to lawyers who view law as a creation of competent authorities irrespective of moral or other philosophical positions. If I am to explain why the normative question matters, I will have to answer both critics.
The federalist’s challenge is easier to respond to, at least provisionally. The federalist does not challenge the normative approach. Rather, he endorses it by drawing the conclusion that a new European state will guarantee stability and economic progress, both desirable goals. But it is clear that not everyone is as convinced that such benefits will come about or that they are the only relevant considerations. We should still address the question directly. Should there be a federal European state? Does a European Constitution require or entail one? It is obvious that such questions are normative and that the federalist’s certainty may and should be explored.
The pragmatist’s challenge is more fundamental. It questions the relevance of a normative approach, especially in the context of legal arguments. I will have to respond to this critique in some length if I am to explain why I find the normative question inescapable and why I think that a European Constitution presents a special need for justification.