Friday, September 22, 2006

Cosmopolitan Ideals, the European Union and Its Judiciary

The European Union has been held up as a model of cosmopolitanism, though not unproblematically so (Derrida 2001). European cosmopolitan ideals have been focused, of late, on the creation of a draft European Constitution. That text would serve as a basis for the creation of one of the largest cosmopolitan communities in the world. This European Community, created on the foundations of a multi-state system already unique, has the potential to become quite special indeed. I want to approach the political cosmopolitanism of European constitution making from a slightly different perspective.

Since the 1950s the European Court of Justice has championed a vision of a European metropolitan cosmopolitanism that focuses on Europe as a singular jurisprudential community with a substantial pool of common legal traditions. It is institutionally cosmopolitan in the sense that Luis Cabrara uses the term: “The institutional cosmopolitan advocates some form of Martin Luther King's restructuring of the global edifice, some deep transformation to bring states under the authority of just supranational institutions, including possibly the institutions of a global government” (Cabrera 2004, 29). It is a metropolitan cosmopolitanism because it seeks to extend the cosmopolitan experience only within the territories of a territorially bounded group of substantially like states—the metropolis.

This essay suggests that the judicial mechanics of cosmopolitanism and its importance to the construction of a single political community under a European Constitution. It focuses on two key aspects of constitutional methodology: first, production by political bodies of deliberately open-ended and ambiguous text, and second, acquiescence by political bodies in judicial resolution of ambiguity or political/policy choices left unresolved in the text. This long-term dynamic of European constitutionalism is accelerated in its current stage – the proposed constitution for Europe. I suggest that this draft Constitution will augment the ECJ’s ability to authoritatively articulate its vision of a cosmopolitan Europe because it may be read to permit an expansion of judicial resort to general principles of law, the development of a jurisprudence of which has been one of the most remarkable feats of the ECJ. This runs counter to the supposition that since the draft constitution is intended to be more concrete than its predecessors, and specifically so by means of the cataloguing of the powers of E.U. institutions, including principles to be applied by the ECJ in resolving constitutional issues, the ECJ’s flexibility will be constrained. But this cataloguing actually will provide a means to avoid rather than resolve a number of difficult issues, and the ECJ’s ultimate authority to interpret constitutional text remains substantially undisturbed. Moreover, because the ECJ will now interpret a constitution, and not merely a set of international arrangements with constitutional effect, it may draw more aggressively on the established traditions of the Member States to fill gaps or resolve ambiguity. The potentially significant extent of this result is illustrated toward the end of the paper, by considering the effect on the ECJ’s interpretive powers were it to adopt the German constitutional tradition of legal hierarchy that can be used to void specific textual provisions of the constitution, and the French principle of giving constitutional value to extra-constitutional texts.

For some cosmopolitans, a European Union grounded in a ‘proper’ constitution could serve as another important step in the transformation of global political culture from one based on inward looking nation-states, to one getting closer to global federation. As Thomas Pogge suggested, an amalgamation of states would serve to disperse political allegiances over a number of political units and thus promote peace, and prosperity (Pogge 1992). The cosmopolitanism of the European Union remains, for the moment, remain necessarily tentative and metropolitan – that is, a cosmopolitanism operating only within the confines of a fixed group of political communities that share certain histories, politics, and perhaps even race, religion, ideology – and distrust -- in common, and whose territories are contiguous. But that makes it no less important. It has proven the effectiveness of the cosmopolitan ideal by creating a framework within nation-states cede a certain amount of sovereignty but remain sufficiently constituted to protect against an endless fragmentation of cosmopolitanism at its limit. “The "strong state" used to mean a nation well-prepared for war: today it must mean a nation sure enough of itself to accept the new limits to sovereignty” (Giddens 1998).

But if this experiment in European federation works, even if only within the confines of Europe, however defined for the moment, it could serve as a basis for both deepening and broadening the cosmopolitan foundations of a politically more united Europe. The deepening might be centered on cultural rather than political cosmopolitanism, and reach the private rather than the public sphere. The broadening would encompass both territorial expansion and a greater influence in shaping the character of other political communities. Among the most likely places for immediate effect would be in Africa and Latin America. These are two regions that are also working towards amalgamations of states to better compete, and perhaps, survive in the world. The African Union and the regional trading associations within Latin America are likely to watch the European experiment closely.

Understand that this European cosmopolitanism, articulated and institutionalized through the European Union, remains a deeply problematic enterprise. There are a number of uncomfortable questions facing even a cosmopolitan Europe. Among the touchiest issues of European self-identity, perhaps, is the question over the status of Turkey. Turkey’s admission into the EU remains a real issue, as well as a test, for the nature and character of European cosmopolitanism. European expansion also poses problems. The two most controversial and likely candidates in this regard would be Turkey and Russia. Each is controversial for very different reasons, but each in it own way would prove a test of the broadening powers of European cosmopolitan ideals. Yet even smaller state admissions have become increasingly troublesome. The recent reaction against waves of immigrants from Bulgaria into England, or that of the Poles into Ireland (and before that the Roma) provides examples. Though these reactions ought to be taken with a grain of salt. There was a time in the 1950s and 1960s when the same reactions accompanied Italian workers streaming into Germany.

The vehicle for this great cosmopolitan crusade, at least since the end of the 20th century, has been a European constitution. That is, European elites have sought to constitute Europe, at least as they see it, though a constitutive document that will create an institutional basis for cultural, social and ultimately political union beyond that envisioned under the present EU Treaty system. Better-said, European elites have sought to acquire a veil of legitimacy for their project to cobble together a political union by covering that project over with the thin mantle of popular approval achieved through plebiscite. I am a great friend of plebiscites myself, though I note that the European version has been used traditionally to cover a great many political sins that history has tended to condemn. This conflation of expansion, constructing a European demos and a political constitution are well known. In 2006 The European Commission's President José Manuel Barroso "called for a halt to further expansion of the bloc after Romania and Bulgaria join, saying the EU had to resolve the stalemate over its proposed constitution before it could accept new members." Constant Brand, EU Chief: Bulgaria, Romania, No More, Yahoo News, September 25, 2006. The report also noted the effect of this conflation on that other great EU issue, the accession of Turkey ("'Of course I would like Croatia to join as quickly as possible, if it fulfills all the criteria," Barroso said. However, Croatia, Turkey and other Balkan nations that want to join fear the EU is imposing new obstacles. Villepin agreed that the ability of the EU to take in new members had reached its limit. "We have to make progress with our common rules before we can contemplate any further stages," Villepin said."). Id.

But no matter.

Much discussion of the new European constitution, and of a need for a replacement for the present treaty system, tends to focus almost exclusively on text. The text of the proposed constitution will provide the answers to ameliorate a multitude of deficiencies in the current international constitutional order on which the E.U. is said to be grounded. These include the democratic deficit, to the allocation of powers both within the E.U. and between the E.U. and the Member States. This focus is in keeping both with civil law traditions of the primacy of text and global traditions of crafting constitutional text as working document and symbol of the highest aspirations of a political community. This is not to say that a concentration on text, and the implications of socio-political choices reflected in the text, ought not to be taken seriously. To the contrary, a close analysis of text is a necessary and important task for any community intent on adopting a new basic law binding its citizens.

I, like many of my colleagues in law, start with text. Text provides the usual basis for building and implementing political systems. Since the reduction of Roman law to the Twelve Tables, it has been a mainstay of Western thought that text protects against arbitrary conduct and tyranny. Text is central to Western notions of rule of law. I will even agree that text is central to constitutional discourse. The legislator, the administrator, and indeed even the citizen, must be able to rely on constitutional text for the development of a firm and stable grounding of the socio-political order.

However, a discourse of constitutionalism centering on text ignores the revolutionary and transformative potential of text in the hands of one of the greatest institutions of constitutional innovation to emerge in Western Europe and the United States – the constitutional court. In most democratic states, the principle is firmly established that supreme authority to interpret constitutional text is allocated to a judicial or quasi-judicial institution of government – the constitutional court. Whether the actions of a constitutional court are considered inherently judicial (Marbury v. Madison) or political (Kelson 1961), does not change the result, though it may change the character of the work of this institution.

So allocated, constitutional courts have demonstrated a propensity for going outside of constitutional text in the service of that interpretive task. In the hands of constitutional courts, constitutional text has proven to be quite fluid. Even the most self-evident provision of text has, in its time, been susceptible to interpretation, and re-interpretation. As important, perhaps, text, and legal text in particular, has been read as a permission to go beyond its literal terms or to incorporate within them, or read them on the basis of, great political, moral and other principles of human organization and behavior dominant in human organization from time to time. That has been the case with the American 11th Amendment, transmogrified in the 20th century into a general principle of state sovereign immunity binding on the American federal government. So also the European development of principles of equal treatment and proportionality that have been read as limiting principles of institutional action at the Member State and European institutional level.

Almost from its inception, the European Union’s constitutionalism has resisted dependence on a blind adherence to a textual object uniformly interpreted by a political community built on a singular vision of the institutions, powers or purposes of the E.U. The ECJ has been able to authoritatively articulate its vision of the European Community by application of a number of jurisprudential devices, not the least of which has been the development of a catalog of general principles of law that, read into the treaties, have been critical elements in the ECJ’s successful efforts to broadly interpret the treaties.

In so doing, the ECJ has played a key role in the development of a cosmopolitan European legal culture. The hallmark of this culture is its internalization of constitutional traditions of the Member States as well as of evolving international behavioral norms. This would include both customary international law provisions to some extent, and more often, the standards set forth in international legal instruments. The great principles of ‘direct effect’ of the treaties, of equal treatment, of proportionality, of human rights incorporation, among others, have shown the ECJ at its cosmopolitan best. The real potential for cosmopolitanism within European constitutionalism, then, finds its greatest expression in the courts, and principally with the European Court of Justice. Consequently, it is naïve to focus discussion on the text of a constitution and in so doing ignore the possibilities that the text itself provides a mechanics for its own reconstruction in the hands of the constitutional courts.

Indeed, the cover of a constitution may provide the judicial department of the emerging supra-state with a greater, rather than with a more constrained array of interpretive tools with which to continue to impose its vision of Europe from its reading of text, and not necessarily merely the text of the European constitution itself (Backer 2004). More particularly, the traditional cosmopolitanism of ECJ jurisprudence, combined with the ECJ’s closer ties with the constitutional traditions of the Member States, may make available to the ECJ additional principles of constitutional interpretation tools with which to shape the emerging European state. In particular, the constitutionalism of the EU may permit the ECJ to add two additional arrows to its constitutional (interpretative) quiver, drawn from the judicial constitutional traditions of major European states. One is drawn from the relatively recent constitutional tradition of France, and a second from the constitutional tradition of Germany. The first refers to the French extension of constitutional valeur to the preamble of the constitution. The second refers to the German tradition of a hierarchy of constitutional values, starting with general constitutional principles, pursuant to which it is possible to view particular (and inferior) provisions of the constitutional text unconstitutional.

In the Southwest Case (I BverfGE 14 (1951) (Federal Constitutional Court of Germany)), the German Federal Constitutional Court found a law enacted by the federal legislature to violate the Basic Law, asserted that its decision and reasons for invalidating the law were binding on all other branches and levels of government, and raised the possibility that an amendment to the Basic Law would itself be unconstitutional. The Court determined that certain constitutional principles – democracy, federalism, and equality – are superior to any individual provision of the Basic Law. Individual constitutional provisions must be interpreted in conformity with those principles, and, if that is impossible, may be voided as incompatible with the Basic Law as a whole. Quoting with approval language from an opinion of the Bavarian Constitutional Court, the court stated:

“That a constitutional provision itself may be null and void, is not conceptually impossible just because it is a part of the constitution. There are constitutional principles that are so fundamental and to such an extent an expression of a law that precedes even the constitution that they also bind the framer of the constitution, and other constitutional provisions that do not rank so high my be null and void because they contravene these principles . . .”

In a significantly more opaque opinion, the French Conseil constitutionnel struck down a loi as contravening French principles of fundamental rights (CC decision no. 71-44 DC of 16 July 1971, Loi des Associations). The Loi in question provided before an association may be recognized as having legal status, it must file certain particulars with the prefect, who must then issue a certificate of registration. This decision affirmed the valuer constitutionnel of the texts contained in the 1946 preamble—the 1789 declaration, the Fundamental principles recognized by the laws of the Republic (FPRLR), and the list of “political, economic, and social principles necessary for our times”. The critical language in the decision was fairly straightforward: “In light of the Constitution and notably its Preamble.” (Stone 1992). The principle that was derived from the preamble is that associations can be formed freely.

Consider the possibilities for the future of European constitutionalism, even a constitutionalism constrained by the general principles memorialized in the first part of the constitution, in which the ECJ could give constitutional value to the constitution’s preamble, and on that basis, derive principles for use in interpreting the constitution. Consider as well the possibilities for a European constitution in which, on the basis of the developed and emerging principles of European law, the ECJ reserves for itself the power, inherent in the constitutional scheme, to void specific provisions of the constitution. No discussion of the new constitution for Europe can be complete without serious and sustained discussion of these possibilities.

Cosmopolitanism, or at least a form of European centered metropolitan cosmopolitanism, has been one of the most dynamic forces shaping the institutional development of the European Union. Since the 1960s, the European Court of Justice has served as the one of the principal vehicles for articulation and implementation of that vision. As Europe debates a new constitutional framework, attention tends to focus on the text of the constitution, and the political processes through which this text is developed. Because the courts do not participate directly in the development of text, the temptation is to relegate the ECJ to mere object of constitutionalism. Yet, even acknowledging the importance and exceptional nature of constitution writing, it would be naïve to conclude that the development of a constitutional text will somehow reduce or even exclude the judiciary from a continuing participation in the development of Europe as a political community. I suggest that however written, constitutional text carries within it the potential for robbing, and perhaps necessarily so, the emerging text of a measure of finality, certainty, and political accountability. As a consequence, post-constitutional European cosmopolitanism may continue to be shaped as much by the judiciary as by political elites.

Reference List

Larry Catá Backer, “Restraining Power from Below: The European Constitution’s Text and the Effectiveness of Protection of Member State Power Within the EU Framework,” The Federal Trust for Education and Research Online Paper No. 15/04 (July, 2004) available at

Luis Cabrera, Political Theory of Global Justice: A Cosmopolitan Case for the World State (New York, Routledge, 2004).

Jacques Derrida, On Cosmopolitanism and Forgiveness (London: Rutledge 2001).

Anthony Giddens, “After the Left's Paralysis: The Third Way Can Provide a Framework for Political and Economic Thought That Cuts across the Old Divides of Social Democracy and Neoliberalism,” New Statesman, 127:18, May 1, 1998.

Hans Kelson, General Theory of Law and State (Trans. Anders Wedberg. Russell & Russell, New York., 1961).

Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803).

Thomas W. Pogge, “Cosmopolitanism and Sovereignty,” 103 Ethics 48-75 (1992).

Alex Stone, The Birth of Judicial Politics in France 257-260 (1992).

No comments: