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 ISSN 1464-3820.

Preview

PDF WRAP_Kuo_From_myth_to.pdf - Accepted Version - Requires a PDF viewer. Download (407Kb)

Request Changes to record.

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
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
Date of first compliant deposit:	16 December 2015
Date of first compliant Open Access:	16 December 2015
Related URLs:	Other Repository

Request changes or add full text files to a record

Repository staff actions (login required)

View Item

Downloads