Post‐Sovereignty and the European Legal Space
| Published date | 01 September 2017 |
| Date | 01 September 2017 |
| DOI | http://doi.org/10.1111/1468-2230.12289 |
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Post-Sovereignty and the European Legal Space
Nathan Gibbs∗
The political constitution of the European polity has become strained in recent years byinsistent
pressures on its institutional capacity to resolve social problems. The article examines the EU’s
polity crisis in the context of the development of a distinctive modern conception of secular
constitutional authority, focused on the ideal of sovereign self-determination. As the work of
Neil MacCormick illustrates, the EU provides a radical challenge to the on-going capacity of
the concept of sovereigntyto provide a framework to address problems of legitimacy. The article
explores the nature of this challenge, its historical context and its consequences with reference
to debates over the nature of constitutional pluralism. It sets out a path to the renewal of the
European constitutional debate through a re-consideration of secular constitutional authority
and the necessity of its connection to the idea of sovereignty. The article seeks to re-engage in
the task of ‘questioning sovereignty’.
INTRODUCTION
The last two decades of European integration have witnessed three significant
events that have placed the basic constitutional identity of the European Union
in question: the rise and fall of the project to create a Constitutional Treaty;
a series of on-going crises linked to co-ordination problems within the EU,
most notably, regarding the Eurozone in the wake of the financial and sovereign
debt crisis and the migrant and refugee crisis and finally, the gradual reassertion
of a more agonic nation-state sovereignty through the German Constitutional
Court jurisprudence and culminating in the UK’s membership referendum. At
this moment of acute difficulty for the EU project, this article seeks to develop
a narrative perspective on the development of the constitutional dimension of
European integration, a dimension which has consistently proven elusive and
difficult to categorise from a theoretical point of view and which has posed a
range of fundamental problems regarding the meaning of democracy, political
identity and citizenship. The essential point underpinning this investigation
is the idea that a broader context related to the link between modern con-
stitutionalism and the historical evolution of what might be termed a secular
social order needs to inform a re-evaluation of the normative and constitutional
categories underpinning the strateg ic approaches which have thus far shaped
responses to recent events of major political and legal importance within the
discourse of European constitutionalism in the broad sense.
Although the ideas of secularity and modernity will be unpacked at a later
stage, the essential purpose of categorising European constitutionalism within
a broader historical and ideological context is to frame a discussion of how
tenable certain key assumptions pertaining to the recognition of fundamental
∗School of Law, Aberystwyth University.
C2017 The Author.The Moder n Law Review C2017 The Modern Law Review Limited. (2017) 80(5) MLR 812–835
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Nathan Gibbs
values and the creation of institutional forms are likely to prove in shaping
its response to contemporary challenges. The approach adopted is to take a
step back from some of the basic values typically used to evaluate institutional
and policy developments: values whose meanings are relatively contested, like
democracy, but whose salience is broadly accepted, as well as more specific,
conceptually sophisticated and detailed evaluative frameworks like Rawlsian
liberalism, whose applicability is contested. This step back is taken in order to
problematise questions of overarching polity legitimacy and polity formation
that are typically bracketed by inquiries that focus on intra-polity questions
such as distributive equality or the configuration of civil and political rights.
The approach used involves, in focusing on ideas of secularity and modernity,
the examination of questions about polity formation, polity type and polity
legitimacy through a narrative and hermeneutic investigation of the presup-
positions and worldviews through which we have framed and answered these
sorts of basic political questions of collective identity.
The first section sets out the context for thinking about the problems of
European constitutionalism in terms that are first addressed at a deeper cultural-
political level and, secondly, are addressed to the historical and narrative for-
mation of a common overall political outlook. In brief, this section outlines
the view that understanding the constitutional problems of the EU and of the
European political space more generally entails a shift from thinking of these
problems in terms of the concept of a more limited institutional legitimation
crisis to thinking instead about the broader idea of a polity crisis. This legit-
imacy question relates to the essential nature of the EU as a type of political
regime. It presupposes that there are pivotal and insistent questions to pose
about the overall political ontology of European integration as opposed to dis-
crete empirical problems of procedural justice and transformative strategy posed
by an essentially indeterminate process of integration, however important these
mayalsobeinpragmaticterms.
The second section outlines certain broader cultural structures pertaining to
polity legitimacy in modern secular societies, within which we might begin to
locate the deeper ontological dimensions of a European polity crisis. Crucially,
this section distinguishes two different schemes in which the notion of a secu-
lar society might be interpreted and sets out how various political implications
flow from this both in general and for understanding European integration
in particular. The first way of thinking about secularism emphasises the ideals
of individual and collective self-determination, the capacity of human agency
to transcend prior conditions and to organise society in ways that reflect au-
tonomously generated norms. This way of thinking about secular modernity
in turn supports a model of constitutionalism and polity legitimacy focused on
the concept of sovereign authority. Such a notion of sovereignty symbolises
at the level of constitutional structure the broader ideal of self-determination
and autonomy. A second way of approaching the analysis of secular politics
emphasises the finite nature of personal and collective agency exercised within
fluid and complex historical and basic existential conditions, which resist easy
conceptualisation. Secularity within this perspective refers to a specific type
C2017 The Author. The Modern Law Review C2017 The Modern Law Review Limited.
(2017) 80(5) MLR 812–835 813
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