Europe Does Need a Constitution. But Of What Kind?

Matej Avbelj’s contribution ‘Now Europe Needs a Constitution’ is surely right in its diagnosis that constitutionalism must play a role in the re-generation of the EU. The gulf between the EU’s leaders and its population, and between distinct groups of EU states, is wider than it has ever been. If constitutionalism is an act of ‘putting things in common’ in a spirit of open dialogue, of deciding on the crucial question about the type of society we want to live in, such a discussion about Europe’s future is sorely needed. The key question, however, is not whether Europe needs a Constitution but what kind of Constitution the EU should build. Many commentators suggest that the lesson to be learned from the failed constitutional project in the early 2000s is that it was too ambitious: too laden with constitutional symbolism and state-paradigms. Perhaps, we argue, the failed constitutional project was not ambitious enough: it made no attempt to break with the models of the previous EU Treaties and in doing so, to capture the political imagination of Europe’s citizenry.

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Now Europe Needs a Constitution

I am a constitutional sceptic. I have been turned into one a decade ago, when the European Union embarked on its first ever process of explicit documentary constitutionalization. That process ended up in tatters. There are strong legal, socio-political and philosophical reasons that speak against endowing the European Union with a constitution understood in conventional terms. However, they may no longer be strong enough.

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