Kuo, Ming-Sung (2009) From myth to fiction : why a legalist-constructivist rescue of European constitutional ordering fails. Oxford Journal of Legal Studies, Vol.29 (No.3). pp. 579-602. doi:10.1093/ojls/gqp014

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Abstract

The defeat of the Constitutional Treaty by French and Dutch voters in 2005 and the
following stalemate of the Lisbon Treaty have sparked a soul-searching process for
European constitutional scholarship. Among the numerous academic efforts devoted to
contemplating the future of European constitution, Michelle Everson and Julia Eisner’s
The Making of a European Constitution: Judges and Law Beyond Constitutive Power
deserves a close look. Everson and Eisner argue for a postconstituent view of European
constitutionalization, which they call ‘Rechtsverfassungsrecht’. Departing from the
myth of the constituent power, they interpret the development of a European constitution
as a self-creating process by which the ordinary legal system gives itself a set of core
values and thereby remakes itself into a constitutional order. Moreover, against the
criticisms of juridification, they defend this lawyer-centred process of European
constitutionalization as incorporating politics into the daily operation of the legal system. Engaging with Everson and Eisner’s argumentation, I argue that their account
of European constitutional development does not so much put out a realist theory of the
EU constitutionalization as sets out a realist academic lawyering for the next round of
European constitutional politics, which is shared among European constitutional
scholars. Contrasting this community-based legal profession in Europe with the
situation of epistemic pluralism in American jurisprudence, in this article I observe that
a lawyer-centred European constitutional theory as Everson and Eisner’s book
illustrates is premised on an inherited consensus that has held a European legal
profession together. However, this lawyer-centred account of European
constitutionalization presumes either the projection of a professional community onto a
Europe-wide civic culture or the self-appointment of legal professionals as the fiduciary
of the citizenry. Each is a fiction, however. This fictional character of the
legalist-constructivist strategy to European constitutional politics is the underlying
cause of the dilemma facing European constitutional ordering.

Item Type:	Journal Article
Subjects:	J Political Science > JN Political institutions (Europe)
Divisions:	Faculty of Social Sciences > School of Law
Library of Congress Subject Headings (LCSH):	Constitutional law -- Europe, Europe -- Politics and government -- 21st century, Law -- Europe
Journal or Publication Title:	Oxford Journal of Legal Studies
Publisher:	Oxford University Press
ISSN:	1464-3820
Official Date:	2009
Dates:	Date Event 2009 Published
Date of first compliant deposit:	16 December 2015
Volume:	Vol.29
Number:	No.3
Page Range:	pp. 579-602
DOI:	10.1093/ojls/gqp014
Status:	Peer Reviewed
Access rights to Published version:	Restricted or Subscription Access
Related URLs:	Other Repository

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