Agustín José Menéndez

Developing a Constitution for Europe

Prologue Bruce Ackerman Chapter 1 Introduction: A Constitution in the Making? Chapter 2 Why Europe Needs a Constitution, Jurgen Habermas: Chapter 3: On the Right to Self-Government, Erik O. Eriksen Chapter 4 Human Rights, Constitutionalism and Integration: Iconography and Fetishism, Joseph H. H. Weiler Chapter 5 Treaty or Constitution? The legal basis of the European Union after Maastricht, Dieter Grimm Chapter 6: A Polity without a State? European Constitutionalism between Evolution and Revolution, Hauke Brunkhorst Chapter 7 Three Conceptions of the European Constitution, Agustin Jose Menendez Chapter 8 The Politics of Law and the Law of Politics - Two Constitutional Traditions in Europe, Christoph Mollers Chapter 9 Wille zur Verfassung, or the Constitutional State in Europe, Massimo La Torre Chapter 10 Law, Economics and Politics in the Constitutionalisation of Europe, Christian Joerges and Michelle Everson Chapter 11 The Convention Method and the Transformation of EU Constitutional Politics, Carlos Closa Chapter 12 Deliberation or Bargaining? Coping with Constitutional Conflicts in the Convention on the Future of Europe, Paul Magnette Chapter 13 Still a Union of deep diversity? The Convention and the Constitution for Europe, John E. Fossum

Chartering Europe: Legal Status and Policy Implications of the Charter of Fundamental Rights of the European Union

This article aims at exploring the legal status and policy implications of the Charter of Fundamental Rights of the European Union. It is argued that the Charter has legal value, despite the fact that it has not been incorporated into Community law. This is so to the extent that it consolidates existing law. The additional symbolic value of the Charter grounds the claim that it will have concrete policy impacts. It will have an effect on the weighting of social and economic goals of the Union, on its external trade and development policy, on the enlargement process (Article 49 TEU), and on the potential application of sanctions to Member States (Article 7 TEU).

The European Democratic Challenge: The Forging of a Supranational Volonté Générale

This article explores in a systematic manner the different components of the democratic legitimacy of the Union from the standpoint of deliberative democratic theory. Contrary to standard accounts, it is claimed that the democratic deficit must be disaggregated, given that the Union has not only several shortcomings, but also some democratic surpluses. On the one hand, the Union was created to tackle the democratic deficit of nation states, and has been partially successful in mending the mismatch between the scope of application of their legal systems and the geographical reach of the consequences of legal decisions. Moreover, the European legal order is based on a synthetic constitutional law, which reflects the common constitutional traditions of the Member States, which lend democratic legitimacy to the whole European legal order. On the other hand, the lack of a democratically written and ratified constitution is a central part of the democratic challenge of the Union. But equally important is the structural bias in favour of certain material legal results, which stems from the interplay of the division of competences and the plurality of law-making procedures.

The Sinews of Peace: Rights to Solidarity in the Charter of Fundamental Rights of the European Union

. This article examines the provisions on social and economic rights contained in the Charter of Fundamental Rights of the European Union. After a conceptual clarification of the terms “fundamental rights” and “rights to solidarity,” three main claims are made. First, not all rights to solidarity are granted the status of fundamental rights in the Charter, in contrast with the treatment of the right to private property. Second, positive law does not justify such an approach. An analysis of the sources of the Charter clearly indicates that the right to private property is not a proper fundamental right as Community law stands. Third, rights to solidarity could be construed as a repository of arguments that Member States and regions could invoke when claiming an exception to the four fundamental freedoms.

Arguing Fundamental Rights

Introduction: Agustin Jose Menendez and Erik Oddvar Eriksen. I. A Theory of Constitutional Rights Revisited. 1. Discourse Theory and Constitutional Rights: Robert Alexy. II. Structural Perspectives. 2. Disciplining the Instrumentalism of Policies: Karlo Tuori. 3. Nine Critiques to Alexys Theory of Constitutional Rights: Massimo La Torre. 4. Democratic or Jurist-Made Law? The Claim to Correctness: Erik Oddvar Eriksen. 5. On Alexys Weight Formula: Carlos Bernal. III. Substantive Issues. 6. Who is afraid of the total constitution?: Mattias Kumm. IV. Applied Perspectives. 7. Constitutional Rights in the UK Human Rights Act: Julian Rivers. 8. Some Elements of a Theory of European Constitutional Rights: Agustin Jose Menendez. 9. Constitutional Rights as Principles: Mattias Kumm. V. Appendix. Bibliography of Robert Alexy.

From Constitutional Pluralism to a Pluralistic Constitution? Constitutional Synthesis as a MacCormickian Constitutional Theory of European Integration

This paper aims at putting forward the key elements of a constitutional theory of European law on the basis of D. Neil MacCormick’s theory of European constitutional pluralism. Firstly, I consider how the institutional theory of law fleshed out by MacCormick creates the theoretical space within which it is be possible to make sense of legal and political phenomena below, above and beyond the nation-state, and particularly, of the EU. Secondly, I ponder on how this affects standard constitutional theories of Community law. Because standard theoretical re-constructions of Community law are premised on the close relationship between law and nation-state, they turn to be incapable of providing a satisfactory and simultaneous answer to three fundamental questions, namely the genesis of EU law, the primacy of EU law and the endurance and growth of EU law. Thirdly, I consider the many achievements of MacCormick’s European constitutional pluralism, in particular, the thesis that Community law can be approached from at least two differentiated, but equally authoritative, standpoints (the differentiated but equal standpoints thesis) and that the stability of the European legal order is rooted on non-legal bases that reveal the transformation of sovereignty in contemporary Europe (the stability beyond sovereignty thesis). But I also consider the turn that the Scottish philosopher made towards a moderate pluralism under international, a shift that is decisive in order to understand the problematique of Community law and the questions that MacCormick was struggling to solve. Fourthly, I sketch the theory of constitutional synthesis, a constitutional theory of European integration which aims to apply the key insights of MacCormick’s European constitutional pluralism to solving the problems which were left open by the theory of the Edinburgh professor. It emphasises the singularity of the European path towards a democratic constitution, the theory of constitutional synthesis combines sensitivity towards the fundamental pluralistic traits of Union law with a commitment towards the idea of constitutional law as a monistic means of social integration.

The European Democratic Challenge

In this paper, I explore in a systematic manner the different components of the democratic legitimacy of the Union from the standpoint of deliberative democratic theory. Contrary to standard accounts, I claim that the question must be disaggregated, given that the Union has not only several democratic deficits, but also some democratic surpluses. On the one hand, the Union was created to tackle the democratic deficit of nation-states, and has been partially successful in mending the mismatch between the scope of application of their legal systems and the geographical reach of the consequences of legal decisions. Moreover, the European legal order is based on a synthetic constitutional law, which reflects the common constitutional traditions of the member states, which lend democratic legitimacy to the whole European legal order. On the other hand, the lack of a democratically written and ratified constitution is a central part of the democratic challenge of the Union. But equally important is the structural bias in favour of certain material legal results, which stems from the interplay of the division of competences between the Union and its member states and the plurality of law-making procedures, some of which multiply veto points at the cost of rendering decision-making rather improbable. Special attention is paid through the paper to the democratic implications of the structural features of European constitutional law for new member states. This article has later been published in European Law Journal Vol. 15, No.3, pp.277-308

Law and Democracy in Neil MacCormick's Legal and Political Theory

Acknowledgements.- List of Contributors.- Introduction Agustin Jose Menendez and John Erik Fossum.- Part I: A Life in Law and Politics.- Chapter 1 The Cosmopolitan Local Neil Walker.- Part II: The Seven Big Themes in Maccormicks Legal and Political Theory.- Chapter 2 Maccormick on Maccormick D. Neil Maccormick.- Part III: The Limits of Law.- Chapter 3 Juridification From Below: The Dynamics of Maccormicks Institutional Theory of Law Lars Christian Blichner.- Chapter 4 Reform And Tradition: Changes And Continuities in Neil Maccormicks Concept Of Law Massimo La Torre.- Chapter 5 The Master Rule, Normativity, and The Institutional Theory Of Law Stefano Bertea.- Part IV: Jurisprudence.- Chapter 6 Some Reflections on the Relationship between Law and Morality - Neil Maccormicks Point Of View Marina Lalatta Costerbosa.- Chapter 7 Legal Judgment and Moral Reservation Jeremy Waldron.- Chapter 8 Are We Beyond Sovereignty? The Sovereignty of Processes and the Democratic Legitimacy Of The European Union Tanja Hitzel-Cassagnes.- Part V: Legal Argumentation.- Chapter 9 Coherence And Post-Sovereign Legal Argumentation Flavia Carbonell.- Part VI: The Constitution(S) of the European Union.- Chapter 10 Legal Pluralism in the European Union Martin Borowski.- Chapter 11 From Constitutional Pluralism To A Pluralistic Constitution? Constitutional Synthesis as a Maccormickian Constitutional Theory of European Integration Agustin Jose Menendez.- Part VII: Post-Sovereign Nationalism.- Chapter 12 Nation-States Vs. Nation-Regions in The Post-Sovereign European Polity Joxerramon Bengoetxea.- Chapter 13 Nationalism, Patriotism and Diversity - Conceptualising The National Dimension In D. Neil Maccormicks Post-Sovereign Constellation John Erik Fossum.- Index.

The Guardianship of European Constitutionality: A Structural Critique of European Constitutional Review

Under the cloak of the projection of the national principle of proportionality to Union law, European courts have radically altered the substance of European law. This has been done both to supranational and national constitutional law and by means of redefining its substantive content. European courts have through proportionality assigned an abstract and a concrete constitutional weight to the right to private property and to entrepreneurial freedom through the four economic freedoms and the principle of undistorted competition. That has placed outside the realm of the constitutionally possible key public policies without which some of the fundamental collective goods at the core of the social and democratic Rechtsstaat become extremely vulnerable. This chapter shows how this accentuated bias of the European socio-economic constitution follows from the way in which European courts have defined economic freedoms as the yardstick of European constitutionality. This entails the automatic assignment of the argumentative benefit to economic freedoms, the construction of all other constitutional goods in the semblance of economic freedoms, and the use of asymmetric standards of evidence when having to justify the adequacy and necessity of economic freedoms and other constitutional goods.

Book Review: Reinhard Mehring, Carl Schmitt: A BiographyCarl Schmitt: A Biography by MehringReinhard. Cambridge: Polity Press, 2014. 749pp., £30.00 (h/b), ISBN 9780745652245

particular in the turn, initiated by Judith Butler, to approach gender performatively and procedurally; by Gabriel Rockhill and by Bruno Bosteels on the contributions to the theorising of politics and aesthetics made by Jacques Rancière and Alain Badiou; by Emily Zakin on the Marxist legacies and reverberations in critical theorising; and by John Fennell on the new terrains opened in the dialogue between analytic and continental philosophy. A particular attention is also paid to the philosophic engagement with science, as envisioned by Bruno Latour, Isabelle Stengers and Ilya Prigogine (in an essay by Dorothea Olkowski) and with the so-called ‘(neo-)materialist turn’ and the question of the real (by Ian James). Finally, the collection considers the response of continental philosophy to more specific socio-political issues, including citizenship (by Rosi Braidotti), postcolonial politics (by Eduardo Mendieta), global warming (by Jonathan Maskit) and US hegemony in international relations (by Todd May). This is an ambitious, comprehensive, and illuminating guide to recent developments and debates in the area of continental theory which is going to be indispensible to researchers and students in philosophy, and beyond.