European Constitutional Imagination: A Whig Interpretation of the Process of European Integration?

In this chapter the characterization of European law as a constitutional order is challenged from two related standpoints, namely, the ambiguity of the qualification of European law as constitutional and the lack of a well-argued narrative explaining how European law became constitutional and what type of constitutionalism it has developed. We start by clarifying the concept and conceptions of constitution, with an emphasis on the structural and normative conceptions of constitution. Against this preliminary conceptual background, we elucidate what exactly is being argued when it is claimed that European law is constitutional, and what implications are consequently justified. We then note that while the process of constitutionalization plays a key role in structuring European law as a discipline, normative reasons underlying such characterization remain, if anything, more assumed than explicit and fully demonstrated. This leads us to conclude by arguing that it may be preferable not to imagine contemporary European law in constitutional terms. At the same time, however, we observe that the power effectively held by the European Union reaches so many corners of national legal and socio-economic structures as to render it insufficient to merely reject any claim to its constitutionality. The predicament of European Union law is that of a legal order that de facto discharges functional tasks proper of constitutional orders, while lacking the requisite democratic and social credentials.