The European Constitution, a Republican Construction?
© The Author(s) 2015
Paulo Ferreira da CunhaPolitical Ethics and European ConstitutionSpringerBriefs in Law10.1007/978-3-662-45600-2_44. The European Constitution, a Republican Construction?
(1)
Faculty of Law, University of Porto, Porto, Portugal
(2)
School of Law, University Anhembi Morumbi (Laureate International Universities), São Paulo, Brazil
El concepto de ‘república’ se entiende ahora en el sentido de ‘libertad’, ‘democracia’ y ‘responsabilidad’.
Peter Haeberle, El Estado Constitucional, Spanish transl. by Héctor Fix Fierro, Mexico, UNAM, 2003, p. 37.
4.1 Theoretical Verfremdungseffekt
The project of the “Treaty that establishes a Constitution for Europe,” beyond its political implications, itself poses some challenges to classical constitutional theory. At a first glance, it may seem totally heterodox in light of the current constitutional canons, and therefore in terms of the pouvoir constituant. However, a stricter analysis of modern (especially French) constitutional history may detect revealing similarities between modern constitutional codification (the modern constitutionalism, since the eighteenth and nineteenth centuries—but still our common paradigm) and that project, done by the “European Convention,” for a European constitution. The formula “treaty” (as it is well known, a category typical of Public International Law) also represents a departure from the normal process of codifying constitutions. But rather than a “constitutional treaty,” we shall consider it for the purpose of our study as a true constitution, since although it requires an approval by treaty, in general, it contains the purpose and the substance of a true constitution (for some interpreters, a constitutional chart, not issued from the pure constitutional power… but that is another problem).
But this is to be anticipated. There is a route to be followed before we can eventually arrive at such conclusions—a route that begins in the search for what is unfamiliar to us.
One of the most common forms of coping with the new or the unknown is to think of what it has in common with the old and the known. After theorizing about the known, an attempt is made to integrate what is not known. This procedure, though undoubtedly a cautious one, is itself prone to error. This has to do with its conservative nature. It risks an enquiry that may pay insufficient attention to predictable events (and to their likely conjugation), over-emphasizing the shock of difference, and forgetting that continuity is possible, at least in part, and not merely a break.
The alternative to this procedure is one that neglects the interpretative mesh of the past and the present, and falls into the opposite error: it does not permit an approach to the known, and as a rule privileges those differences that will not always seem obvious.
However, what is new invariably has its roots in the past. It follows from this that a dialogue must be established as a means of perfecting our knowledge of what is going on.
The European constitution has been seen as either something totally new—a radical change of paradigm (just as European Union Law was itself understood by some as a novel departure from previous Law)—, or, as a gradual continuum, building upon what had already been done in the Maastricht, Amsterdam, and Nice treaties. In both cases, it seems to us that one aspect of reality is being overvalued at the expense of another.
The codified European Constitution tried by the Convention presided over by the former French President Valléry Giscard D’Estaing, as well as the present main constitutional document, the Treaty of Lisbon, has old and new elements, not only in relation to the (uncodified) European Constitution currently in force (always with a written nucleus constituted by the treaty of Nice and what followed it). All this complex evolution therefore represents a good opportunity to evaluate the present-day validity of classical constitutional theory. We therefore turn next to an analysis of the manifold challenges the European Constitution poses to constitutional theory, attempting to review those topics of common concern to both.
4.2 European Constitution and Constitutional Theory
4.2.1 The Two Classical Theories of Constitution
There are many definitions and perspectives of what a Constitution is, a doctrinal tradition which, directly or indirectly, terminated in two formulas that mirror—albeit not clearly or symmetrically—the two great types of Constitution that have always existed.
The first formula makes explicit the historical-universal concept of the Constitution. Although many of its doctrines have been forgotten in practice, there have been very few attempts at general constitutional theory that do not refer to it, at least in abstract terms. This perspective is normally quoted from the formula devised by Lassalle in his famous speech “What is a Political Constitution,” and this states, as is well known, that:
Every country in every age has therefore had a real constitution. What is peculiar to modern times is – and it is important always to bear this clearly in mind – not the actual but the written constitution – the piece of paper.1
The logic of this formula identifies the political community or society with the constitution, and ends in the mythification of merely written code, by which our imaginations are held captive at the most superficial level. Curiously, this myth of a Constitution that is identified with a public Law code goes unmentioned in any of its specific theorizations: it is implicit in a way that does not need to be verbalized.
So, if all countries and ages have a real constitution, a political balance of powers (more or less in equilibrium, which depend on the political/constitutional regime), the first moment in constitutional history is, of course, one of material and not formal constitutions: not codified ones, but living in diverse texts or even unwritten, depending on custom. This kind of constitution has different designations according to the authors. Some underline the unwritten or the material aspect—but it seems that the most important aspect is their natural or historical reality. So, first we had historical or natural constitutions. At least one of those survived: that of the United Kingdom. Not unwritten, as many manuals repeat, because it was written from at least the Magna Charta and other ancient documents, but of course not codified even in present days.
But we live, in general, under another constitutional concept. The French Declaration of Human Rights and Citizens, of 26 August 1789 (adopted as a Preamble to the first French Constitution codified in 1791), which contains in Article XVI an explicit (and implicit) formulation of the modern codified concept of Constitution: the one of at least a certain voluntarism (constitution is not just “a question of art and time,” historically sedimentary). It represents the second major type of Constitution, the second in time and the closest to us chronologically and intellectually speaking.
These combined perspectives make clear that there are two historical phases of constitutionalism. The first period, that of historical constitutionalism, is the natural, gradual, product of a historical evolution, or a “cold” process, to paraphrase Levi-Strauss. The second, that of voluntarism, is mentally designed and generated, codified, and the product of “hot” history—above all, the product of revolutions, beginning with liberal revolutions. Obviously, we will not easily find—or not without a great deal of imagination—a contemporary text relating to the natural or historical phase which invokes the fundamental laws of the kingdom, or its customs or practices, etc. The source of legitimation is the people, and their constituent power.
4.2.2 The Lesson of the French Declaration of Human Rights and Citizens: Modern Constitutional Requisites
If the requirements of the historical or traditional constitution must be deduced, its fundamentals sought in the testaments of kings, ordinances, practices and conventions reiterated, and also laws, and the fundamental laws of the kingdoms (not only written ones), etc., the requirements of a modern constitution would seem to be more accessible, if only because they belong to a time of expository and written logic.2 This is, however, only partially true. On one hand, there is some pressure to be explicit, to decide what is necessary to include in the formulation of a Constitution. But, on the other hand, there are elements that will still be missing in the written prescription.
The French Déclaration solemnly prescribes:
Toute société dans laquelle la garantie des droits n’est pas assurée, ni la séparation des pouvoirs déterminée, n’a point de constitution.
This article of the Declaration by itself does not bind us immediately to a written constitutional text as a constitutional requirement. In theory it would be possible to think of a society (and it is merely of a society that the text speaks, and not of a code that prescribes the organization of the public thing, res publica) in which rights are guaranteed and powers separated, but one not having a codified juridical instrument, a unique and fundamental written regulator of these things. In this way, the Declaration most often thought to be the starting point of modern constitutionalism could also be considered as the expression of a historical constitutionalism. But in practice, of course, it would not be so considered. This is because the guarantee of rights the article speaks of is not just any guarantee, but one assuring equal rights for all—not, that is to say, prerogatives or privileges (“private laws”) conceded to certain social groups or corporations, etc. Until the modern constitutions (and declarations of rights) encoded them, universal rights were unknown as components of a model society. Since the old traditional monarchical power (not the absolutist one) can be described as a “conjugated power,”3 and if in all societies there is always a balance of and between powers, in the sense we now use the term the separation of powers only fits into this new phase of society and politics.
Not to detain ourselves further on one of the great pillars of modern constitutional theory, we can say, remembering Montesquieu, that a social distribution of powers exists, in which the bourgeoisie (at that time “representative” of the People) is also contemplated, and significantly so. Never before did this type of social distribution exist beyond the purely technical and functional sort that would develop until the sway of the imagination and the doctrine of ars combinatoria.
All the above suggests that the Declaration we speak of, without actually claiming that fundamental rights and the separation of powers should be necessarily inscribed in a code of political rights, in fact ends by presupposing the three elements: rights, separation of powers, and written political code, i.e., constitution in modern terms. Universal fundamental rights such as these were first coined in those old liberal times (and endure today, under other forms), and the separation of powers was first “determined” (the word can suggest a more definitive idea of fixation, and very likely a written one). Since both requirements were settled in Article XVI—this in turn takes us to the juridical-political environment, from which may be deduced unexpressed, albeit fundamental, principles.
Article IV makes it clear that the natural rights of all can only be defined by Law (pre-supposedly written) and in this way brings us closer to the need for a written Constitution as an essential instrument of modern constitutionalism. But the Law in this case emanated from sovereignty. Since the latter was then conceived as a power that resided essentially in the nation, it was only from the nation that the individual derived any concrete exercise of power. In the words of the Article:
Le principe de toute souveraineté réside essentiellement dans la Nation. Nul corps, nul individu ne peut exercer d’autorité qui n’en émane expressément.
In addition, Article VI establishes (among others) the principles of popular participation and political representation, from which emanates the Law, the key power in constitutionalism, declaring:
La loi est l’expression de la volonté générale. Tous les citoyens ont droit de concourir personnellement ou par leurs représentants à sa formation. Elle doit être la même pour tous, soit qu’elle protège, soit qu’elle punisse. Tous les citoyens, étant égaux à ses yeux, sont également admissibles à toutes dignités, places et emplois publics, selon leur capacité et sans autre distinction que celle de leurs vertus et de leurs talents.
Therefore, the 1789 French Declaration of Human Rights and Citizens, not only in its classic Article XVI, but also as a whole, points to the most relevant traits of modern constitutionalism and the most enlightened aspects of present-day constitutional theory.
First of all, there is the dyad expressed in the article itself: fundamental rights and separation of powers. Thereafter, the constitutional mythic triad emerges from the more general support and the context of the text: to the first two items is implicitly added the sacred text (sacred instrument, the Americans will say about their Constitution) of the codified constitution. Furthermore, in the broader perspective of the juridical-political system sketched by the Declaration as a whole, two more traits stand out: the notion of popular/national sovereignty (a sharp distinction is difficult today) and its corollary, the notion of political representation, if not democracy itself.
The informing traits of modern constitutionalism, all of them having their own degrees of myth,4 are clear. They amount to fundamental rights (based on natural rights, and enlarged internationally for the most part as human rights); the separation (and interdependency) of powers; the sacrosanct text of the codified constitution; and the concepts of popular/national sovereignty, representation, and democracy (or sovereignty and democracy identified as representation). These are the salient traits of modern constitutionalism.
4.2.3 European Constitution, Natural Constitution, and Codified Constitution
The dice having been thrown, it would not seem a difficult task to frame the European Constitution. But before that, an important distinction must be made. We can talk about several European constitutions, divided in accordance with the classic magna divisio, and more to the point, in terms of what divides them from each other. Before the European Convention a natural, historically-evolved European Constitution had come into being, shaped by treaties, conventions, jurisprudence, and even with elements of the national constitutions of the member states, etc. If the Convention’s project had been approved, we would have now a modern, codified, European Constitution, although with a strange designation, and a bizarre manner of creation and approval. But the French and Dutch veto aborted that attempt.
The still current, naturally evolved European Constitution poses an interesting challenge to constitutional theory. Although it is natural, it is still imbued with the concepts of fundamental rights, some separation of powers, some representative aspects, democracy and, in a theoretical sense at least, the “sovereignty” hoc sensu of European citizens. While it is uncodified, it is, however, written and very much written—scattered in multiple documents. The Treaty of Lisbon, reassembles many of the Convention’s text and proposals, and functions as the main written basis. Would it change a lot if it was baptized as a real “European Constitution”?
With the proposed codified texts to replace the historical constitution of Europe, the juridical dimension of fundamental rights becomes clearer, inasmuch as the Charter of European Rights is incorporated, although the judiciary, even without this démarche, obviously would not refrain from applying them as a real constitutional text. And it did very well.
In what concerns the remaining aspects, there are in the text of the Convention changes that affect all the member states, though the observer’s perspectives will differ. For some, for example, there will be greater separation of powers, for others not so; for some, more representation, for others, less. It is difficult to speak apodictically of this new reality, tracing the complex threads of existing and proposed powers, checks and balances, not to mention those divergent ideological perspectives that will likely complicate it in diametrically opposed ways.