Constitutionalism in the "integrated" states of europe

Download 146.09 Kb.
Size146.09 Kb.
  1   2   3   4   5   6   7
Francisco Rubio Llorente1


  1. Justifying an adjective

  1. European constitutional texts

  1. European parliamentarianism

  1. Constitutional jurisdiction and fundamental rights

  1. The state form: federalism and nationalism

  1. Constitutional law and European integration

(6.1) The constitutional deficit in the integration process

(6.2) The standard doctrine on the relationship between Community law and national law

(6.3) The predicament of national judiciaries

(6.4) Nationalization of Community law

(6.5) A European ‘Constitution’ or the reform of the national Constitutions?

(1) Justifying an adjective

The European Union (EU) and its hard core, the European Community, is not a federation, nor, at least for the present, does it propose to become one. The European Union does not permit us to speak accurately of a ‘United States of Europe’ as an entity analogous to the United States of America. France is in no danger of being relegated to “the equivalent of Nebraska” as supporters of the “No” vote in the Maastricht referendum claimed. Nevertheless, it is no longer possible to approach Constitutional Law in EU member states as if the links among them were limited to common historical and cultural ties, disturbed by occasional confrontations and discord. Nor is it possible to deny that the EU has brought about a profound transformation of the State – a development that obliges us to rethink old categories and create new ones. The European Union must respect the drive of member states to retain their national identities,2 while at the same time an increasing proportion of member state legislation is either borrowed directly from community law or is shaped substantially by community legislation. Today roughly 80% of national economic regulations are in some measure touched by EC law, and, furthermore, the European Community now assumes responsibility for commercial relations with the rest of the world. The freedom of each member state to fix its own economic policies is currently limited to choosing among various means to achieve objectives set by the Community – objectives which, if realized, will accomplish even the elimination of national currencies. Limitations in the economic field are accompanied by Community limitations in other areas of national governance. The contrast between the position of European nation-states at the beginning of this century and their current position in the European Union is roughly equivalent to the magnitude of difference that currently separates EU member states from the constituent states of the American Federation. It is with a conscious awareness of this measure of divergence that we refer in the title of this article to the “’integrated’ states of Europe” -- a characterization that is both descriptively accurate and analytically necessary.

(2) European constitutional texts

Although the process of forming national constitutions in European states began more than two centuries ago, the actual texts of EU member state constitutions all date from the present century, with the single, obvious exception of the British constitution. The venerable British texts merit an obligatory nod of tribute to that paradoxical cradle of the constitutional state. A few European constitutional texts are the cumulative result of successive reforms of texts originally drafted in the nineteenth century or earlier,3 and are found in those societies that managed to avoid the dramatic upheavals which punctuate the histories of other European states.4 The majority of the constitutions were promulgated after the Second World War, following governmental ruptures of varying intensity and duration.5 A final group of texts have their origin in the inter-war period and were drafted concurrent to the creation, or re-creation, of their corresponding states.6

The “reformed” texts often contain some structural traces of their origins in the preservation of the monarchy, or in the use of traditional formulae. However, the depth of the changes that were carried out7 makes it virtually impossible to establish clear distinctions, based upon constitutional content, between these and the newer texts. Even those differences arising from the opposition of monarchy and republic are difficult to delineate clearly, in part due to the anomaly presented by Spain. The Spanish constitution is a new constitution, but it is also monarchical. In addition, the opposition in Spain to the constitutional order is no longer of political importance. The King of Spain is reputed to have stated long before his coronation that “my aspiration is to be king of a Spanish Republic” – a sentiment that acknowledged the reality that European monarchies are nothing more than republics with crowns.

(3) European parliamentarianism

Each of the states examined here has a parliamentary form of government. European parliamentarianism is strictly monistic, “rationalized”, as Mirkine-Guetzevitch called it. The formation) of government is the exclusive task of the legislature or, more precisely, of the lower chamber.8 In this and other respects, the decline of the upper chamber of parliament observed by Mirkine-Guetzevitch has continued.

None of the constitutions considered here eliminated the Head of State, as occurred in a few of the cases in Mirkine’s compilation, notably Bavaria and Prussia. However, in none of the fifteen states in question can the President of the Republic designate a government without the explicit or implicit support of parliament – not even in those systems with a strong Head of State such as Finland, Ireland, Portugal, and, above all, France. In some cases (Germany, Spain) the Head of State can do no more than propose candidates to parliament, and then ratify the result. In Sweden the entire process occurs within the parliament without so much as a strictly formal intervention by the king.

As Mirkine-Guetzevitch observed more than seventy years ago the rationalization of parliamentarian systems blurs the political distinction between parliament and government, thereby rending discussion of Government’s accountability to Parliament meaningless9. Rationalization is not the product of constitutional norms. Rather it results from the dominance of political life by political parties which, according to Leibholz,10 effectively transforms representative democracy into what he called direct, plebiscitary democracy, and is now known as the “Party State.” Problems stemming from the divergence between the theoretical framework of democracy and the forms assumed by actual democracies have not given rise to important constitutional changes. Fully seven of the fifteen constitutions contain explicit references to political parties but only the constitutions of Portugal and Sweden include rules which can be seen as signs of a gradual progression toward introducing political parties into public law.

Share with your friends:
  1   2   3   4   5   6   7

The database is protected by copyright © 2020
send message

    Main page