The content of this post was presented at the launch workshop of the EUFutures Research Network held at City, University of London on 4 November 2022. Massimo Fichera is TIAS Senior Collegium Fellow and works at the Faculty of Law, University of Turku.
How can constitutional theory as a methodology contribute to the study of European Union (EU) law, and, in particular, to the dynamics of legal integration/disintegration that have growingly characterized the development of the EU?
This question will be the focus of this post, beginning from the assumption that disagreement and conflict are a central theme for any thorough constitutional theoretical debate. As disagreement is ineliminable and actually represents an inherent, not necessarily negative, feature of constitutionalism, any legal and political regime, including the EU, is to some extent brittle and exposed to threats. One relevant task of constitutional theory is thus understanding the nature and source of disagreement and, if feasible, devising mechanisms to address it on the basis of a shared set of epistemic criteria. Constitutional theory, in other words, looks at the conditions making the continued existence of a constitutional settlement possible. However, should it provide a diagnosis followed by a cure, i.e. should it also intervene actively to generate the conditions mentioned above?
This argument is developed in three steps. First, it will be useful to clarify what constitutional theory as a methodology means. Second, it will be crucial to explain why constitutional theory is important for EU legal analysis. Third and finally, the claim of this blogpost is that constitutional theory as a methodology can indeed contribute to the study of EU law by way of two fundamental techniques: reflexivity and design.
1. Constitutional theory as a methodology
Constitutional theory often registers and/or studies disagreement as a deeply embedded feature of society. When it does so, it cannot help but reach out to disciplines different from law. To some extent, the boundaries between constitutional theory and other disciplines, including philosophy of law, sociology or political science, are porous. A successful methodology of constitutional theory may draw upon tools associated with any of these disciplines to illustrate the complexity of EU integration.
In light of these considerations, should a methodology of constitutional theory be oriented towards or produce common understanding as its outcome?
One of the tasks of legal/constitutional theory is to help us reflect on how our society understands the institutions that operate within it. There are at least three reasons why we should give weight to the common understanding of a social institution or principle as a component of constitutional theory.
First, there is a quest for intelligibility. All writers must speak in the language of a given constitutional community; as pointed out by many, language is a shared institution. This means that the writer must speak in a language that is comprehensible to her/his audience, hence ‘common’ to some extent.
Second, some aspects of social institutions – and, connectedly, principles – are determined by people’s beliefs and attitudes. Of course, some members of a constitutional community may reject a particular understanding of law, including EU law. However, the effect that these dissenters have on the development of institutions and principles will also be framed, to some extent, by the common understanding. More broadly, the way common understanding emerges may also affect the non-legal rules that determine and govern institutions. Non-legal or social rules defining the proper conduct of a judge of a national court acting as EU court, or of the CJEU, or of a fonctionnaire belonging to the EU Commission, may, in part, also have emerged as a result of our common understanding.
Third, this common understanding may contribute to shaping the identity of a given constitutional community. Only if a polity, including the EU polity, shares a core set of values, symbols, institutions, can it identify as ‘this’ or as ‘that’.
However, despite the observations above, problems may arise in relation to all three considerations made above.
As far as the quest for intelligibility is concerned, divergence of meanings is very frequent in constitutional theory. Inevitably, one problem with using the common understanding as the test for the success of a theoretical account of an institution or principle is that the common understanding itself may contain disagreement: people may, and often do, argue about the nature of institutions or the content of principles. For example, those who claim that democracy requires the vindication of the will of the majority, or – in contrast – requires the protection of certain minorities – be them ethnic groups, or groups of States in a decision-making procedure- are making rival claims concerning what it means to take part democratically in collective decisions.
The second set of arguments for the significance of the common understanding – as illustrated above- asserts that some aspects of social institutions – and, connectedly, principles – are determined by people’s beliefs and attitudes. Yet, one may notice important features of social institutions of which people are unaware. While part of a polity’s shared life, it may be problematic to incorporate such features.
The third argument – from identity- can also be exposed as limited: the identification of a polity as ‘this’ or as ‘that’ needs to be performed from an observing point. Now, either the observing point is internal – thus leading to self-identification- in which case the problem remains of how to confer authority and legitimacy on those who perform the act of self-identification on behalf of the ‘we’ that is simultaneously the subject and the object of that act. Or the observing point is external – thus relinquishing elements of that very authority that is claimed through the act of identification to this external point of observation.
If reaching or detecting a common understanding is not the sole and definitive test of the success of a theory, what further criteria must a successful account meet when addressing issues of EU integration and disintegration?
2. The role of critique. Risk of constitutional bias.
When reflecting on why constitutional theory is important for the study of EU law, a preliminary question that deserves attention is the following: if one’s own theory and methodology do possess normative traits, does adopting a constitutional theory angle for EU law irremediably undermine the outcome or ostensible scientific quality of our research? Is there an irremediable constitutional bias in adopting such methodology? Would it not be the equivalent of wearing pink glasses, just because we wish to see a pink-coloured world?
Here the risk is that of neglecting critique. The added value of constitutional theory may be found in the first place precisely in its normative component. However, such normative component must have some degree of objectivity in order to be credible. Some may be skeptical about the possibility to do normative scholarship without having a personal stake in the norms and values involved in the assessment. However, there is a difference between holding a personal conviction and articulating a scholarly argument privileging a certain normative theory. Although an element of personal conviction is part of scholarly judgment, scholarly judgment itself must be open to revision on the basis of theoretical and/or empirical sources. Constitutional theory can thus be also critical towards its object of study and assess to what extent such object meets the requirements of a constitutional artefact.
3. Reflexivity and design
Finally, let us return to the question posed earlier: if the common understanding is not the sole and definitive test of the success of a theory, what further criteria must a successful account meet? It may be argued that design and reflexivity are essential elements of a successful constitutional theory.
Design is geared to outline the contours of a legal order that is able to address disagreement in a satisfactory manner – not dissimilarly from the framing structure of a building withstanding seismic shaking. From the point of view of design, it is possible, for example, to distinguish flexible, rigid and tiered models of constitutionalism, or characterize amendments as formal or informal. It is equally possible to re-elaborate the principle of the separation of powers in a more functional, pragmatic manner, away from more traditional ‘statist’ configurations.
Discussions concerning amendments of the Treaties in the EU can incorporate these distinctions and nuances and singling out separate degrees of amendment has an impact on the question of self-identification of the EU.
Concerning reflexivity, a much more important role in the analysis of phenomena of integration and disintegration should be played by meta-ethics (Tripkovic 2017). Meta-ethics – as the study of the metaphysical, epistemological and semantic presuppositions of moral thought, language, and practice, as well of shared commitments – goes beyond normative ethics, because it does not simply ask questions such as ’what ought x institution do?’, ’what ought Member States x and y do vis-à-vis Member States w and z?’ or first-order substantive questions, but it includes second-order, formal questions, such as ’how can we tell what is good/right from what is bad/wrong?’, or ’what is the point of joint action?’.
Reflexivity is thus necessary to address the question of how to be secure as a transnational polity and what it means for the EU to be secure and the epistemological value of such endeavour is related to our reflections on the nature of law itself.
R. Dixon, D. Landau (2018) ‘Tiered Constitutional Design’ 86 George Washington Law Review 438
M. Fichera (2018) The Foundations of the European Union As A Polity. Edward Elgar
D. Kyritsis, S. Lakin (eds.) (2022) The Methodology of Constitutional Theory. Hart Publishing
J. Waldron (1999) Law and Disagreement. Oxford University Press.
J. Raz (1998) ‘Disagreement in Politics’ 43 American Journal of Jurisprudence 25
B. Tripkovic (2017) The Metaethics of Constitutional Adjudication. Oxford University Press