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From myth to fiction : why a legalist-constructivist rescue of European constitutional ordering fails
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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. ISSN 1464-3820
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Official URL: http://dx.doi.org/10.1093/ojls/gqp014
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 > 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 |
| Date: | 2009 |
| Volume: | Vol.29 |
| Number: | No.3 |
| Page Range: | pp. 579-602 |
| Identification Number: | 10.1093/ojls/gqp014 |
| Status: | Peer Reviewed |
| Access rights to Published version: | Restricted or Subscription Access |
| Related URLs: | |
| URI: | http://wrap.warwick.ac.uk/id/eprint/34866 |
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