Challenging the masters of the treaties: Emerging narratives of constituent power in the European Union

Abstract

Abstract:There is a growing sense that if the EU is to avoid disintegration, it needs a constitutional renewal. However, a reform negotiated between executives will hardly revitalise the European project. In light of this, commentators have suggested that the EU needs a democratic refounding on popular initiative. But that is easier said than done. Shaping the EU has been an elite enterprise for decades and it is hard to imagine how things could be otherwise. In this article, I map four public narratives of constituent power in the EU to sketch out potential alternatives. Political actors increasingly call into question the conventional role of the states as the ‘masters of the treaties’ and construct alternative stories as to who should be in charge of EU constitutional politics, how the respective subject came to find itself in that position, and how it should invoke its founding authority in the future. These public narratives represent a promising starting point for a normative theory that outlines a viable and justifiable path for transforming the EU in a bottom-up mode.

Potentiality, political protest and constituent power: A response to the special issue

“…While destituent power receives passing mentions in Lorey’s (2019) article and Niesen’s (2019a) introduction, only in Markus Patberg’s (2019) contribution do we find a systematic treatment of the concept. Moving beyond his extensive prior work on supranational constitutionalism and constituent power at that higher level (Patberg, 2014, 2016, 2017a, 2017b, 2018), his discussion of destituent power lays out a series of definitional categories ultimately interested in the abilities (1) of states to exercise civil disobedience within supranational institutions and (2) of popular sovereignty movements to articulate themselves in a non-constituent manner. In an effort to treat destituent power as an umbrella for multiple concepts, Patberg (2019) defines it broadly as ‘a category according to which opposition to or withdrawal from the regulatory grasp of public authority can function as a legitimate trigger for constitutional change’ (2019: 83).…”

Why does global democracy not inspire explanatory research? Removing conceptual obstacles toward a new research agenda

“…In broader social and political theory, however, the term has also been used by scholars who reject the assumption that a relevant people simply exist and who argue—to the contrary—that peoples and political communities are created and delimited through political contestation (e.g. Agné, 2012; Lindahl, 2007; Loughlin, 2014; Möller, 2018; Näsström, 2003; Niesen, 2017; Patberg, 2016, 2018). The term constituent power must then be defined without reference to any given people, suggestively as a power which challenges the legitimacy of existing political orders constituted already, or which seeks to create new political orders with new basic rules, new political procedures, and/or new borders and membership criteria.…”

“…That is, constituent powers need not achieve, or even aim to achieve, a new political order. In democratic theory specifically, Patberg (2018) illustrates that a definition of democracy as constituent power implies that democracy can exist before and independently of political institutions that have been constituted already. It thus makes little sense to object to a conception of democracy as constituent power that democracy requires an institution or constitutional order.…”

“…Still, that is to postulate a specific outcome of constituent power beforehand, namely, democratic states or democratic states peoples, not a process through which either of those outcomes is achieved. Others suggest that democratic constituent power belongs to individuals (Bohman, 2007; Patberg, 2016, 2018). While that assumption is a helpful step forward, it is also insufficient.…”

“… 3. Patberg (2018) identifies practices of constituent power by observing them empirically in the case of a particular order (the EU). That practice-dependent approach may be effective to clarify arguments of relevance to the people whose experiences it accounts for.…”