The European Court of Justice's (ECJ's) jurisprudence of fundamental rights in cases such as Schmidberger andOmega extends the court's jurisdiction in ways that compete with that of Member States in matters of visceral concern. And just as the Member States require a guarantee that the ECJ respect fundamental rights rooted in national tradition, so the ECJ insists that international organisations respect rights constitutive of the EU. The demand of such guarantees reproduces between the ECJ and the international order the kinds of conflicting jurisdictional claims that have shadowed the relation between the ECJ and the courts of the Member States. This article argues that the clash of jurisdiction is being resolved by the formation of a novel order of coordinate constitutionalism in which Member States, the ECJ, the European Court of Human Rights and other international tribunals or organisations agree to defer to one another's decisions, provided those decisions respect mutually agreed essentials. This coordinate order extends constitutionalism beyond its home territory in the nation state through a jurisprudence of mutual monitoring and peer review that carefully builds on national constitutional traditions, but does not create a new, encompassing sovereign entity. The doctrinal instruments by which the plural constitutional orders are, in this way, profoundly linked without being integrated are variants of the familiar Solange principles of the German Constitutional Court, by which each legal order accepts the decisions of the others, even if another decision would have been more consistent with the national constitution tradition, 'so long as' those decisions do not systematically violate its own understanding of constitutional essentials. The article presents the coordinate constitutional order being created by this broad application of the Solange doctrine as an instance, and practical development, of what Rawls called an overlapping consensus: agreement on fundamental commitments of principle-those essentials which each order requires the others to respect-does not rest on mutual agreement on any single, comprehensive moral doctrine embracing ideas of human dignity, individuality or the like. It is precisely because the actors of each order acknowledge these persistent differences, and their continuing

This comment links Cohen/Sabels' idea of a 'directly-deliberative polyarchy' to the contemporary debate on the deficit in democratic legitimation of the European Union. Within this constitutional-legal debate the conventional options are either to defend a vision of the EU which separates global economic law from national sovereignty, and thus relies on the legitimising powers of free markets, or to regard the legitimation problem (at least under present conditions) as beyond solution: that is to say that any further progress towards an 'ever closer union' would inevitably increase the legitimation deficit, and to suggest that the capacity for political action of the nation state should be protected or restored. This comment seeks to show that the concept of a 'directly-deliberative polyarchy' offers an attractive alternative to these traditional positions because it breaks the stranglehold of the false dichotomy 'global market vs national democracy' and thus permits an extension of the idea of radical democracy to European Supranationalism.

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This book addresses the question of social constitutionalism, especially with regard to its role in the contemporary European project. For reasons of history and democracy, Europeans share a deep commitment to social constitutionalism. But at the same time, Europeans are concerned about an overconstitutionalization and the balancing-away of less-favoured rights, leading to the entrenchment of the status quo and stifling of the living constitutionalism and democracy. The book challenges the common view that constitutionalization means de-politicization. Without claiming for themselves the final word, courts can exert a more indirect—forum-creative and agenda-setting—role in the process of an ongoing clarification of the meaning of a right. In exerting this role, courts rely less on a pre-existing consensus, but a potential consensus is sufficient: courts can induce debate and deliberation that leads to consensus in a non-hierarchical dialogue in which the conflicting parties, state actors, civil society organizations, and the diverse stakeholders themselves develop flexible substantive standards that interpret constitutional requirements, often over repeat litigation. The CJEU and the ECtHR—as courts beyond the nation state—in their constitutionalizing jurisprudence are able to constructively re-open and re-politicize controversies that are blocked at the national level, or which cannot be resolved at the domestic level. But, crucially, the understanding of constitutional framework-principles is itself subject to revision and reconsideration as the experience of dealing with the diverse national contexts of discovery and application accumulates. This democratic-experimentalist process lies at the heart of the distinctive model of contemporary Euroconstitutionalism.

Radical democracy and the rule of law: reflections on J. Habermas' legal philosophyI met Jürgen Habermas thirty years ago at around the time when he completed his Between Facts and Norms. In that book, Habermas defended a provocative thesis-the view that "in the age of a completely secularised politics, the rule of law cannot be had without radical democracy." 1 I believe this view to be essentially correct and, with hindsight, would like to explore some of its key intellectual motivations that explain why this view remains relevant and provocative in contemporary discourse-but also add a challenge.Two mutually antagonistic conceptions of the rule of law continue to dominate contemporary debate. The first of these associates the rule of law with limited government and the function of providing a secure framework for the spontaneous order of free markets. This conception prioritises economic liberties and emphasizes the importance of rules fixed in advance that allow private actors to foresee with certainty how public authority will use its coercive power in given circumstances. The ground rules of private law-property and freedom of contract-are often thought to meet this requirement par excellence and to epitomize the pure form of law. The second of these two conceptions, by contrast, sees the rule of law as an entirely political construct only. Suspicious of judicial supremacy in a society riven by deep moral dissensus, this view argues that no distinction between an impersonal point of view established in a liberal democracy's institutions and laws, on the one hand, and the controversial views of the good and of social justice, on the other, can ever be drawn. Accordingly, each version of the rule of law-and there can only be plural versions, on this view-is seen either as yet another ideological project or as purely contextual. 2 However, in contrast to these two conceptions, Habermas argued for a third view that sought to tie the rule of law not to some trans-historical content but to a situated emancipatory democratic practice. Framed by close reference to Max Weber's categories, Habermas' aim was to understand how the "paradoxical emergence of legitimacy out of legality" 3 is possible.