The Notion and Nature of the European Constitution after the Reform Treaty

16 Pages Posted: 22 Jan 2008 Last revised: 27 Jun 2014

See all articles by Leonard F. M. Besselink

Leonard F. M. Besselink

University of Amsterdam - Amsterdam Centre for European Law and Governance

Date Written: January 18, 2008

Abstract

This paper argues on the basis of comparative constitutional law the following five points:

1) That the European Union has developed into a constitutional order, can only be understood if we acknowledge the non-revolutionary, evolutionary and incremental nature of the European constitution.

2) We need to say farewell to formal criteria in order to identify what is constitutional in the political and legal order of the European Union.

3) In European law, we do not know exactly where the boundary is between 'constitutional' and 'ordinary' law, just as is the case with other constitutions of the 'historic type'.

4) For lack of a 'constitutional moment', a formal EU 'constitution', if ever realized, would only be a momentary reflection, no more than a snap-shot; it would be a Grundgesetz rather than a Verfassung; that is to say in the appropriate equivalent terms: a fundamental treaty, rather than a constitutional treaty.

5) The coming together of contrasting cultural perceptions of constitutions, the arch-types of 'revolutionary' and 'un-revolutionary historic' types of constitutions (the 'French' v. 'British' type of constitution) within the European Union, can lead to ambiguity and an equivocality which leads to frictions and misunderstandings about the constitutional nature of the European Union; this may fail to contribute to the legitimacy of a consolidated constitutional document.

Keywords: European constitution, constitutionalism, comparative constitutional law, European Union

JEL Classification: K10, N40

Suggested Citation

Besselink, Leonard F. M., The Notion and Nature of the European Constitution after the Reform Treaty (January 18, 2008). Available at SSRN: https://ssrn.com/abstract=1086189 or http://dx.doi.org/10.2139/ssrn.1086189

Leonard F. M. Besselink (Contact Author)

University of Amsterdam - Amsterdam Centre for European Law and Governance ( email )

P.O.Box 1030
Amsterdam, 1000 BA
Netherlands

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