This work critically confronts some of the most significant contributions to the political-philosophical and juridical debate over the “constitution” of Europe since the 1990s. The aim of this inquiry is to analyze and problematize the juridical and philosophical categories that have been proposed in attempts to conceive of the constitution beyond the State. I begin by inquiring into a conviction – widespread in jurisprudence, political sciences, sociology and philosophy – that the European Union is characterized by processes which can no longer be captured by relying on the political and juridical categories proper of modern national States.
To fulfill the task of re-thinking the European constitution, scholars have brought two concepts into the spotlight: “political unity” and democratic legitimation. I turn this aforementioned approach around, seeking first to answer the question in the title: Which political and legal concepts need to be considered for a “constitution” of Europe? This question will be taken up from the perspective of historical-conceptual analysis. Such an approach is concerned primarily with the concepts and values that underpin the Constitution and its procedure, taking as secondary an analysis of constitutional mechanisms.
Each chapter of the thesis is mainly dedicated to a single author except for the fourth, which is dedicated to an established theory.
The first two chapters revisit the so-called Grimm-Habermas debate of the mid-90s, named after its most prominent voices, constitutionalist Dieter Grimm and philosopher Jürgen Habermas. Based also on the most recent developments in this debate, these chapters will inquire into Habermas’ and Grimm’s positions on the European Constitution against the backdrop of their analyses of modern constitutionalism and democratic legitimacy.
Dieter Grimm’s contribution on the European Constitution has been correlated both with his historical conceptual inquiries on the genesis of modern constitutionalism and with the topic of the “future of the constitution” in light of the erosion of the national State. The aim of this analysis is to determine the structural link between the modern Constitution and the national State, as it represents the primary obstacle to translating the categories into a Constitution beyond the State. If unity is essentially part of the modern Constitution in relation to its function of constituting and limiting political power, the obstacle to project it into a constitution which has States as its members consists in the impossibility of conserving the plurality and individuality of different political subjects, while simultaneously producing their union.
Chapter 2 addresses Jürgen Habermas’ contribution on the European Constitution from the point of view of Habermas’ masterpiece Fact and Norms (1992). I argue that Habermas’ attempt to rethink political identity and democratic citizenship at the European level is a sort of extension of his analysis in Facts and Norms, because his use of the notion of “solidarity among strangers” represents an attempt to find a new dimension for those categories (or for the political participation) within the post-national constellation. Moreover, Habermas’ recent appeal to the concept of “divided sovereignty” and “pouvoir constituant mixte” in theorizing a federal non-statal community reveals (in)consistencies when coupled with the assumption of democratic self-determination.
Chapter 3 is dedicated to Ingolf Pernice’s theorization of the Verfassungsverbund. On one hand, the chapter individuates the positive elements of Pernice’s theory of constitutionalism (multilevel structure/plurality, dynamicity, etc.), for these elements avoid any reduction of this form of constitutionalism both to statal constitutionalism, and to alternative forms such as the Staatenverbund. On the other hand, my analysis shows the difficulties that arise from grounding this model on a social contract-like theory, especially if at bottom there is a pact among citizens and not the constitution of the body politic.
Chapter 4 inquires into those attempts to rethink the political union within the EU which move from the political and juridical category of “Bund”. Olivier Beaud’s contribution to develop the category of federation also receives a critical analysis, for it clearly insists on the necessity of categories which radically differ from those proper of the State to conceive of politics at the European level. Only radically new categories can help in attributing political dimension to a plurality of subjects whose aim is grounding a new horizon of political action through their political participation. Towards this aim, a relevant role is assumed by the “contractual” dimension of politics and law. This chapter demonstrates why such theories must meet the challenge of relativizing the category of democratic legitimation at the European level; their challenge consists instead in re-thinking the political command not in terms of modern representation. Only this new form of command can warrant the political character of the members constituting a Union, whilst affirming a form of control over it.