Reviews
| Date | 01 March 1996 |
| Published date | 01 March 1996 |
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02083.x |
REVIEWS
Richard Bellamy, Vittorio Bufacchi and Dario Castiglione (eds),
Democracy and
Constitutional Culture in the Union
of
Europe,
London: Lothian Foundation
Press, 1995, xvi
+
222pp, pb Z12.95.
‘The existence of the sovereign state is frequently taken for granted as a necessary
presupposition of the existence of law and the possibility
of
politics. This is a
mistake. Sovereignty and sovereign states, and definitions of law in terms of
sovereignty and the state, have been but the passing phenomena of a few centuries.
Their passing
is
by no means regrettable.’ This statement, taken from the
contribution to this book by Neil MacCormick, forms the premise upon which it is
based. The countervailing demands in Europe for greater international
responsibility on the one hand and for increased regionalism on the other, have
necessitated a reassessment of the function
of
the sovereign state. This in turn has
brought issues of democracy, citizenship and constitutional culture back into
vogue. The aims
of
the editors of this book are thus to identify and discuss the
possible theoretical foundations of these issues.
The twelve chapters that make up the book were originally papers presented at a
workshop on ‘The Constitution of Europe’ held in June 1993 at the University of
Exeter.
The
setting for the discussion lies in the fields of social theory, political
science and legal philosophy. It is a timely book, not only with an eye to the Inter-
Governmental Conference of Member States of the European Union scheduled for
1996, but also with a view to the widespread constitutional debates within these
states. As ordinary voters
in
the older democracies of Europe become increasingly
disenchanted with the way their political systems work, traditional constitutional
arrangements, whether they be liberal or republican, are being challenged.
The book is organised into three sections. The first collects chapters concerning
various contemporary debates with respect to national constitutional traditions, the
second covers issues on the present and future constitutional possibilities for the
European Union, and the third examines the place of rights and citizenship within
this framework. The book is thus intelligently moulded together. Moreover, the
contributions frequently refer to one another, ensuring that the book reads more as
a
coherent whole than a disparate collection of conference papers.
It is,
of
course, not possible to summarise and comment on each individual
contribution. Only the salient themes will thus
be
identified. Part
I,
on ‘European
Constitutional Debates’, covers contemporary constitutional debates in France,
Britain and the unified Germany. The contribution by Howard Caygill and Alan
Scott on the debate in Germany post-1989 is undoubtedly the outstanding chapter
in this section. They discuss how the revolution of 1989 ignited fresh constitutional
debates in Germany regarding the integration of aspects of the liberal and socialist
cultures of West and East Germany. In examining the constitutional drafts of the
‘Round Table’ and the ‘Kuratorium,’ they
see
the possibility of
a
new form of post-
liberal constitutionalism which gives more recognition to citizens’ movements,
associations and public interest groups than simply political parties and parliament.
The underlying idea is
the
need to develop a framework for democratic control
over bureaucratic decision making. Other contributions in this section include a
discussion of French constitutional history (Jeremy Jennings) and an exploration,
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drawing on the example of the privatisation process in Europe, of the freedom
of
action of governments
within
the institutions of the state (Tony Prosser).
Part
11,
entitled ‘Constituting Europe: Legitimacy, Sovereignty and Social
Compact’, is perhaps the most inspiring section of this book. Issues concerning the
present and future constitutional possibilities for the European Union are discussed
in three chapters. They are explicitly based on the premise that the European polity
suffers from a constitutional, let alone democratic, deficit. The starting point is a
feeling of ‘frustration’ and ‘irritation’ at the paucity of the present level
of
public
discussion about the future of the European Union as important political and
constitutional decisions continue to be taken behind closed doors. Thus, it is
argued that the legitimacy problem may best be alleviated through imaginative
political discussion to develop new forms
of
constitutional politics in the European
Union. However, the EU is at present in the awkward position of being more than
an intergovernmental organization and yet less
than
a federation. Talk of a
European Constitution has,
as
Dario Castiglione correctly points out
in
his chapter,
entered the scene through the back door. The establishment of a single legal order
maintaining a common economic zone has produced constitutional issues as a by-
product rather than
an
issue in its own right. Castiglione argues that what is often
referred to as the ‘European Constitution’ is little more
than
a collection of
complex mechanisms, institutions, rules and practices which have hardly been
influenced by the national political cultures. Castiglione favours contract centred
approaches for constitution making in the EU based on the principles of choice,
consent and reciprocity. Equally, Albert Weale, in his chapter, would like to
see
what he terms the present ‘techno-bureaucratic form’ turned into a constitutional
democracy. He explores various methods of establishing legitimacy for
an
EU
constitution and concludes, as does Castiglione, that a ‘democratic baptism’ is the
most satisfactory option. They advocate a Constitutional Convention in much the
same way
as
the Philadelphia Convention of
1787
helped legitimate the American
Federal Constitution. The obvious criticism to be made at this point is that such a
suggestion is, at present, completely unrealistic. Although the European Court of
Justice has always referred to the EC Treaty
as
‘the Constitutional charter of a
Community based on the rule of law’ (Opinion
1/91 [1991]
ECR
6097),
the present
political climate is such that even the European Parliament, in its last
pronouncements on the matter, has abandoned the request for a Constitution for
explicitly pragmatic reasons (European Parliament,
Report
on
the Functioning
of
the Treaty
on
European Union With
a
View to the
1996
Intergovernmental
Conference,
12
May
1995).
Weale acknowledges the political difficulties and
retorts that ‘political theorists, of all people, should not feel themselves bound by
the supposed realities of the present situation.’
So
be
it. It
is
nevertheless a pity that
there is no mention, let alone comment, on the two most recent and important
constitutional proposals:
‘Proposal for
a
European Constitution
’
submitted by the
European Constitutional Group in December
1993
and the European Parliament’s
‘Resolution
on
the Constitution
of
the European Union’
of February
1994.
In
the
final chapter in this section, Neil MacCormick describes how the sovereignty of
the Member States has been ‘divided and combined’ internally within the
European Community, which division has taken us ‘beyond the sovereign state.’
This provides a challenge for legal theory, which has to free itself from the idea
that law belongs to the sovereign state and develop a pluralistic legal order with
new conceptions of law, state, community and nation.
Part
111,
‘Rights and Citizenship in the European Union’, examines the place of
rights and citizenship within the framework of the issues discussed in the first two
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1996
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