Global Crisis and European Constitution

© The Author(s) 2015
Paulo Ferreira da CunhaPolitical Ethics and European ConstitutionSpringerBriefs in Law10.1007/978-3-662-45600-2_5

5. Global Crisis and European Constitution

Paulo Ferreira da Cunha1, 2  

Faculty of Law, University of Porto, Porto, Portugal

School of Law, University Anhembi Morumbi (Laureate International Universities), São Paulo, Brazil



Paulo Ferreira da Cunha

Those who would give up essential freedom to purchase a little temporary safety, deserve neither liberty nor safety.

Benjamin Franklin—Motu of the book An Historical Review of the Constitution and Government of Pennsylvania (1859).

5.1 Trying to Make a Codified Constitution for Europe

In 2000, 2 years before the opening of the European Convention that begun to discuss the problem (February 2002), a dark blue book called “The European Constitution” was published. And there was neither a mistake nor any fraud about it. The subtitle in the cover gave us precisely what we get inside: “Constitutive Treaties and Jurisprudence.”1

The attempt of the so-called “European Convention” (also called “Convention on the Future of Europe”) to make a treaty-constitution (a treaty instituting a constitution for Europe), created the proposal of a strange tertium genus, in appearance. But, essentially, it was the project of a new constitution for Europe (which already had, as we know, an historical one). The new text would be not a dispersed constitution as it was before, but a codified one. As it is well known, the French and Dutch referenda aborted the process after which the question was wisely postponed, and then some years later the “legacy” of the European Convention, through negotiations among the European government representatives, arrived at a new text. It was quieter and wiser in what concerns the constitutional affirmation, but it is still a Constitution, and its background still has the ideas (and even text) of the first attempt of a European constitutional code. So, the formal European Constitution exists, known as the Treaty of Lisbon.

5.2 Problems of a Real European Constitution

Of course that is the formal constitution. We should also speak about a material constitution and a real constitution, as general constitutional theory teaches.

This is what we see everyday on TV news: the concrete relations of power in Europe, where all countries and peoples are equal, but some seem to be more equal than others (to remember George Orwell’s Animal farm pigs refrain). The creation of the expression PIGS or PIIGS (which in itself is a scandal of xenophobia), and the shock of the European establishment when, in the beginning of November 2011, the Greek Prime minister Georgios Papandreo announced a referendum, are very real manifestations of the fears expressed by many true Europeanists when the Conventional Constitution was in progress. Not only radical sovereignists had doubts about the process.

First of all, the fear of creating not a federal Europe (that would be excellent) but of a Europe in which the neoliberalism ruled and the southern countries suffer “austerity” because of the crisis. That, along with political blame and almost religious guilt: a curious and obscure process of stigmatization, the creation of a scapegoat for European problems, mistakes, and so on. That real constitution in Europe (the real exercise of power) is a real problem for Europe. And it is not one that is in the treaties. As always, politics and power are forcing the juridical component of the constitution.

When some people talk of reforming the treaty of Lisbon, it is unfortunately not for the purpose of bringing the European institutions more federalism, which would mean strengthening the co-responsibility of all the peoples and countries, but, on the contrary, a means of making the de facto balance of powers a normative reality, too.

It is indeed curious to remark that, in general, all the de facto power situations aim to legitimate their statu quo in juridical terms, normally by changing the previous constitutions. It would be very shocking and outrageous to many national feelings to create a juridical order that might deprive Greeks from their right to make a referendum on their own future (even if we have great reticence to any referendum) … But when, for instance, rumors spread ideas of putting the flags of European debtors at half mast in European institutions, that says a lot about the European constitutional feelings of some people, and about their constitutional culture. It is not a simple question. When we see the hostility against the presumed lazy debtors (who work  and contribute more than the ‘rich’, as explained in a short but eloquent film by prof. Marcello Rebelo de Sousa2), from another side and by the  desperate claims of others, we don’t get a favorable impression about culture and education nowadays. And this misrepresentation by others in Europe seems to be not only a problem, but also a problem that some seemingly don’t want to solve. But among all the despair and fear, we still have some positive points, which leads us to the question of the material constitution of Europe.