Euroconstitutionalism and its Discontents

Abstract

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.

‘An Obligation of Means, Not One of Result’: A Historical Overview and Theoretical Assessment of the Whole Life Order Sentencing Regime in England and Wales

“…This example raises concerns that a Rawlsian consensus is inherently superficial and unworkable in practice. For the American legal scholar Frank Michelman, 148 reasonable disagreement 'cuts deeper' than Rawls suggested and there will likely persist irreconcilable disagreement and uncertainty in society about a mutually acceptable conception of justice. 149 Coercive laws set out by a centralised authority are required to ensure the legal ordering of society given the challenge of co-ordinating complex and pluralistic societies.…”

EU Regulation between Uniformity, Differentiation, and Experimentalism: Electricity and Banking Compared

“…In many cases, these experimentalist governance (XG) architectures are underpinned by "penalty defaults": destabilization mechanisms that induce reluctant parties to cooperate in framework rule making and respect its outcomes, while stimulating them to propose plausible and superior alternatives, typically by threatening to reduce control over their own fate. In the EU context, such penalty defaults frequently involve court judgments or (threats of) Commission decisions, which oblige Member States and/or private actors to explore how to pursue their preferred goals in ways compatible with the fundamental principles of European law, but without hierarchically imposing specific solutions (Sabel & Zeitlin 2008: 305-8, 2010Sabel & Zeitlin 2012: 413-14;Zeitlin 2016: 3-4;Gerstenberg 2019;Svietiev 2020).…”

Uniformity, Differentiation, and Experimentalism in EU Financial Regulation: The Single Supervisory Mechanism in Action

“…Source: Zeitlin (2015: 2) In many (though not all) cases, experimentalist governance (XG) architectures are underpinned by "penalty defaults": destabilization mechanisms that induce reluctant parties to cooperate in framework rule making and respect its outcomes, while stimulating them to propose plausible and superior alternatives, typically by threatening to reduce control over their own fate. In the EU context, such penalty defaults frequently involve court judgments or (threats of) Commission decisions, which oblige Member States and/or private actors to explore how to pursue their own preferred goals in ways compatible with the fundamental principles of European law, but without imposing specific hierarchical solutions (Sabel & Zeitlin 2008: 305-8, 2010: 13-16, 2012Zeitlin 2016: 3-4;Gerstenberg 2019;Svietiev 2020).…”