The Multidimensional Constitutional Legal Order of the European Union - A Successful Case of Cosmopolitan Constitution-Building?

Abstract

European integration has been portrayed as an example of the juridification of cosmopolitan values and the constitutionalization of cosmopolitan law. Yet, is the EU really a successful case of cosmopolitan constitution-building? Moreover, can cosmopolitanism itself provide a way out of the current dilemmas of the EU as occasionally seems to be suggested? In seeking an answer to these questions, first of all the roots of and contemporary rationale for moral and legal cosmopolitanism are explored from a normative point of view. What emerges from this is that the juridification of cosmopolitan values, such as universal human rights standards, together with the increasing loss of power of states resulting from globalization have raised concerns about the democratic legitimacy and accountability of the current global legal order. Democratic states are believed to no longer function properly given the non-democratic nature of the current global legal environment. Demands for the establishment of a (different) global legal order which constitutes, attributes and demarcates public power effectively amount to an appeal for the constitutionalization of cosmopolitan law. From an analysis of the relevant literature the allocation of power, the provision of democratic legitimacy and accountability, and the establishment of a political community beyond the state, are identified as the main challenges that any viable model for the constitutionalization of cosmopolitan law has to address. Applying these key issues as a theoretical framework for the analysis of the multidimensional constitutional legal order of the EU, it can be observed that while the EU undoubtedly signifies the most advanced form of governance beyond the state, it can neither unreservedly be considered to constitute a cosmopolitan project, nor does it offer a convenient model for the establishment of a democratic global legal order. At the same time, given the many uncertainties governing its concrete shape, legal cosmopolitanism also does not offer ready-made solutions for the structural, constitutional and institutional challenges which the EU currently faces.