The Lisbon Treaty A Constitutional Document, Not a Constitution

By Jacob Robertson,2014-11-28 06:03
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The Lisbon Treaty A Constitutional Document, Not a Constitution

The Lisbon Treaty: A Constitutional Document, Not a ConstitutionA British Perspective


    1The European Union has undergone a constitutional transformation in the past half century.

    It has evolved from its origins as the European Economic Community, promoting economic integration, into a supranational polity that has come to be perceived in constitutional and even federal terms. This essay will explore the extent to which the modern day European Union can be said to possess some sort of constitution. In doing this, it will be necessary to decouple such a constitution from the notion of state constitutionalism and instead define it as a unique transnational constitution. Despite this, useful comparisons can be drawn between state constitutions and that of the EU, in order to ascertain the form the latter may take. Particularly useful in this regard is the analogy between the British Constitutional model and

    2the EU constitution. This writer concludes that the EU possesses a composite constitution

    more akin to that of the United Kingdom rather than a formal written text, as is typical in continental Europe. As such, in the present writer‟s view, the Lisbon Treaty would feature, along with the other treaties, as a constitutional document within the constitutional arrangements of the EU, without itself becoming a formal constitution.

The Nature of a Constitution

    Firstly, it is important to define what is meant by a constitution within the specific context of the European Union. The dictionary defines a constitution as being “a body of fundamental

    principles or established precedents according to which a state or organization is

    3governed.” However, a constitution is more than this rather formalistic definition suggests.

    4As well as being a legal concept, constitutionalism also has a certain political impact. Paine

     1 Henceforth known as the EU. 2 Composed of both written and unwritten sources. 3th Shorter Oxford English Dictionary (5 Edition OUP, Oxford 2002). 4 R Bellamy and D Castiglione, „Introduction: Constitutions and Politics in R Bellamy and D Castiglione (eds),

    Constitutionalism in Transformation: European and Theoretical Perspectives, (Blackwell Publishers, Oxford



The Lisbon Treaty: A Constitutional Document, Not a ConstitutionA British Perspective

    suggests that a constitution is a written document, which both displays certain formal

    5characteristics and is publicly recognisable. This positivist conception of a constitution

    seems overly formalistic and ignores the fundamental place a constitution holds in society as distinct from other laws. The constitution on the one hand must be distinguished from the

    6constitutional text or individual constitutional documents on the other.

    The constitutional text accords with the dictionary definition of a constitution and that advanced by Paine. It is the constitutional text that must be formally valid and regulate the exercise of public power in a positivistic manner. This finds support in the instrumental view

    7of a constitution as a superstructure for the maintenance of an independent normative order.

    This, however, is merely the legal manifestation of a more fundamental legal/political concept. Normative conceptions consider the constitution as a fundamental norm upon which

    8the whole organisation of socio-political life must ultimately depend. Therefore, two distinct

    elements can be identified that must be present in order to classify a given set of laws as a constitution. Firstly, the rules must regulate the exercise of political power in a given political entity and secondly they must be seen as embodying the fundamental basis of society within the polity. The validity of the former is assessed on the basis of Kelsen‟s positivist

    9explanation of the basic norm in terms of formal legitimacy. The validity of the latter, on the

    10other hand, is assessed with reference to social or substantive legitimacy.

     5 T Paine, Political Writings (CUP, Cambridge 1989) at p. 81. 6 C Schmitt, Verfassungslehre (Duncker u. Humblot GmbH, Berlin 2002) ch. 1, para. 2. 7 F A Hayek, Law, Legislation and Liberty, volume 1: Rules and Order (University of Chicago Press, Chicago

    1973). 8D Castiglione, „The Political Theory of the Constitution in R Bellamy and D Castiglione (n 4). 9 M Hartney (tr), H Kelsen, General Theory of Norms (Clarendon Press, Oxford 1991) at p.116-117. 10 Essentially this is where the members of society accept the laws of that society as binding and comply with them. Weiler suggests that substantive legitimacy, at least at the level of the state, is where “a minority will/should accept the legitimacy of a majority decision because both majority and minority are part of the same Volk...,” J H H Weiler, „Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision‟, (1995) ELJ 219 at p.228; see also Hurrelmann who argues that “a number of social preconditions [such as social

    integration] can thus be defined that have to be met in order to secure the normative legitimacy [or substantive


The Lisbon Treaty: A Constitutional Document, Not a ConstitutionA British Perspective

The Existence of Supranational Constitutionalism

    Our current understanding of the nature of a constitution is very much influenced by

    11nineteenth-century constitutionalism and the liberalist view of the nation state. The essence

    of this liberal constitutionalism is of government grounded in, limited by, and devoted to the

    12protection of individual rights. The Peace of Westphalia of 1648 announced the dawn of the

    European (nation) state and a new system of spatial organisation that was founded in the

    13naturalness of state sovereignty. It is on this basis that our ideas about what constitutes a constitution have evolved. It is, however, important to note that any discussion of constitutionalism beyond the state should not merely be an attempt to define transnational constitutionalism with reference to state constitutionalism. Instead, the constitutional

    14discourse about post-state spaces needs to be attuned to the idiosyncrasies of such orders.

    As a result of globalization and the increasing inter-dependence of global economies, states, more and more, need to devise ways to regulate their mutual interactions on the international level. This allows for the possible existence of a positivist type constitution as described above. Whilst this may be all that exists on the broader international plane, it does not preclude a more intense type of constitutionalism on a post-state, sub-global level. The

    1516existence of a demos is seen as a prerequisite of the existence of a state constitution.

    Therefore, the lack of a demos at the international level is seen as precluding the existence of

    17a transnational constitution. This, however, is not necessarily the case because transnational

    legitimacy] and empirical acceptance of democratic institutions. A Hurrelmann, „European Democracy, the “Permissive Consensus” and the collapse of the EU Constitution‟ (2007) ELJ 343 at p. 348. 11 D Castiglione (n 8). 12 Hesse and Johnson (eds), Constitutional Policy and Change in Europe (OUP, Oxford 1995) at p.34. 13 Curtin, Post national democracy: The European Union in Search of a Political Philosophy (Kluwer Law

    International, The Hague 1997) at p.2. 14 N Tsagourias, „Constitutionalism: a Theoretical Roadmap‟ in N Tsagourias (ed), Transnational

    Constitutionalism (CUP, Cambridge 2007) at p.5. 15 A demos is a people united by a common culture and heritage. 16 Brunner [1994] 1 CMLR 57 (German Maastricht Decision). 17 Grimm, „Does Europe Need a Constitution‟ (1995) 1 ELJ 282.


The Lisbon Treaty: A Constitutional Document, Not a ConstitutionA British Perspective

    constitutionalism may be more about normative neutrality and accommodation of differences

    18than about projection of a common value system.

The Constitution of the European Union

    It is important to distinguish the European Union both from a state and a classical intergovernmental organisation. In terms of its constitution, the European Union is distinct

    19from both of these entities. The EU is an entity within the international legal order, created by states which inhabit that legal order. However, these states share common principles such as peace, human rights, democracy and the rule of law. It is these principles that define the EU as a distinct legal order within the international legal order; attribute legitimacy; ensure

    20legal coherence; foster unity; and provide orientation. Unlike international law, the

    21European legal order affects individuals directly, rather than through their states. There is

    also a mutual interaction between the national and European legal orders which leads to a

    22Europeanization of national law and a domestication of European law. All of the above has

    allowed the European Union to grow an indigenous constitution and claim constitutional


The British Constitution

    Having already demonstrated that the EU possesses a constitution, it is now appropriate to define the nature of this constitution. Whilst it is true that the legitimacy of such a

     18 N Tsagourias (n 14) at p.6 19 N Tsagourias, „The Constitutional Role of General Principles of Law in International and European Jurisprudence, in N Tsagourias (ed), Transnational Constitutionalism at p. 87. 20 Ibid. p. 82. 21 Case 26/62, Van Gend en Loos, [1963] ECR 1; E. Stein, „Lawyers, Judges and the making of a Transnational

    Constitution, (1981) 75 AJCL 1. 22 F Snyder, The Europeanization of Law, (European Law Series, Hart Publishing, Oxford 2000) pp. 1-11; M

    Poiares Maduro, „The Importance of Being Called a Constitution: Constitutional Authority and the Authority of Constitutionalism‟, (2005) 3 ICON 332 at pp. 338-9. 23 N Tsagourias (N 19) at p. 83.


The Lisbon Treaty: A Constitutional Document, Not a ConstitutionA British Perspective

    constitution must be conceived of in non-statal terms, it is useful to draw analogies with existing state constitutions to inform our conceptions of the structure of the EU‟s constitution.

    Particularly helpful in this regard is the analogy between the partially written but uncodified British constitution and that of the EU. In order to create an analytical framework for EU constitutionalism that is based on British constitutionalism it is necessary to study the latter in some depth. This will then form the basis of the discussion that follows on how the British constitutional model can be applied to the EU.

    Unlike the civil law jurisdictions of Europe, the United Kingdom does not have a formal, written text as its constitution. Instead the United Kingdom has a common-law constitution

    24with parliamentary supremacy as its “keystone”. In orthodox theory of parliamentary

    2526supremacy, parliament is seen as having legal sovereignty to pass any law, with political

    27sovereignty resting with the electorate. It is on this basis that parliament can be said to

    28derive its moral legitimacy from democratic principles. Dicey, the pre-eminent authority on

    British constitutional law, considered that these democratic principles could act as internal checks on the exercise of legislative power because parliament is unlikely to legislate

    29contrary to fundamental ideals that are central to its belief system. Such fundamental ideals

     24 W Blackstone, Commentaries on the Laws of England (Portland 1807); A V Dicey, Introduction to the Study thof the Laws of the Constitution (10 ed 1965) at p. 70. 25 G Winterton, „The British Grundnorm: Parliamentary Supremacy Re-examined‟, (1976) 92 Law Q. Rev. 591

    at p. 597: „nowhere is the development of this doctrine [of parliamentary supremacy] demonstrated more clearly than in the writings of Blackstone and Dicey‟. 26 W Blackstone (n 24) at p. 156: „[Parliament‟s authority is] so transcendent and absolute, that it cannot be

    confined, either for causes or persons, within any bounds…. It can, in short, do everything that is not naturally