Constitutionalism, Supranational

Beyond the Nation-State

There has been an increasing application of the normative principles of constitutionalism outside the orbit of states. Since the end of the 1990s, constitutionalist notions of legitimacy and democratic deficit have been applied to international organizations such as the World Trade Organization (WTO) and the World Bank. Thus, for instance, antiglobalization demonstrators in Seattle in 1999 adopted the language of democratic legitimacy and social justice to denounce the lack of transparency and democratic accountability of both organizations.

European Union

On the European front, applying constitutionalist analysis to reconsider what the EU already is, what it might become in the future, and what norms it should be based on is bound by difficulties: on one hand, by the constitutional ambiguities of the EU as a sui generis polity—neither a federation nor a classic intergovernmental organization—and, on the other, by conventional definitions of constitutions, historically associated with statehood. In the case of the EU (as a supranational organization), the use of the term constitutionalism denotes a framework of analysis of the European polity, but also it registers a normative framework.

Most legal scholars see the EU as having some sort of incomplete yet functional constitutional structure, with a more or less strong normative component. By contrast, European politicians, media, and the public have only recently began to employ constitutional language when looking at the EU: notably, after the constitutional discourse of the Convention on the Future of Europe, the body that was charged by the Laeken European Council in December 2001 to prepare a revision of the EU treaties.

The application of supranational constitutionalism to the EU by the academic community originally focused on this process of “constitutionalization of the treaties.” Such constitutionalization incorporated the constitutional reading of the Community treaties by the European Court of Justice (ECJ), that is, beyond their nature as legal documents binding governments, to the foundation of a new legal order that penetrated state law. Through the twin doctrines of direct effect and supremacy, the ECJ led the establishment of this “new legal order.” National Courts, while embracing direct effect, have been reluctant to endorse the doctrine of supremacy unconditionally.

Beyond the well-researched process of the constitutionalization of the treaties, many legal scholars and political scientists have reflected on the challenges of and to constitutionalism posed by the EU: notably, the need for normative principles to guide the evolution of the EU and, on the other hand, the need to overcome the tendency to approach the EU's development from state-centered conceptions of constitutionalism. Legal scholars, including Neil MacCormick, Joseph Weiler, and Jo Shaw, have argued that the best way to account for EU law is by abandoning conventional legal theory and the analogies with state law. In both normative and analytical studies, this legal scholarship has characterized the constitutional nature of the EU, resorting to notions such as postnational constitutionalism or arguing the plural and multilayered nature of EU legal order.

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