Marlene Wind

European Constitutionalism beyond the State

Notes on contributors Introduction: European constitutionalism beyond the state J. H H. Weiler and Marlene Wind Part I: 1. In defence of the status quo: Europes constitutional Sonderweg J. H. H. Weiler Part II: 2. Postnational constitutionalism and the problem of translation Neil Walker 3. The unfinished constitution of the European Union: principles, processes and culture Francis Snyder 4. Europe and the constitution: what if this is as good as it gets? Miguel Poiares Maduro 5. The European Union as a polycentric polity: returning to a neo-medieval Europe? Marlene Wind Part III: 6. Beyond representative democracy: constitutionalism in a polycentric polity Renaud Dehousse 7. Finality vs. enlargement: constitutive practices and opposing rationales in the reconstruction of Europe Antje Wiener 8. Epilogue: Europe and the dream of reason Philip Allott Index.

The Nordics, the EU and the Reluctance Towards Supranational Judicial Review

The Nordic countries have no tradition of judicial review by courts and have generally been hesitant to make use of the preliminary ruling procedure in the European Union. New data indicate that Nordic courts prefer to solve as many EU-related judicial disputes as possible without involving a supranational organ such as the ECJ. Building on two comprehensive surveys of Danish and Swedish courts and judges, this study challenges the theory of judicial empowerment when explaining judicial integration in the EU. The article argues that in order to explain when and why Member State courts make use of the preliminary ruling procedure, a much deeper understanding of the prevalent legal/political culture and concept of democracy in each Member State is required. In particular, the distinction between majoritarian versus constitutional democracies may help us understand why majoritarian democracies express greater scepticism towards supranational judicial review.

Rediscovering Institutions: A Reflectivist Critique of Rational Institutionalism

How do we theoretically asses the contemporary dynamics of European integration? This is the opening question in much recent literature on the European Union (EU). However, cooperation between Western European states has puzzled theoreticians of international relations since the EC’s foundation in 1957. The research agenda has not only included those more substantial or concrete queries which students of international politics and institutions always have to deal with, but just as much disagreements over how the phenomenon ‘the EC’ — now the European Union — can be categorized within the classical IR-literature. As William Wallace (1983) has put it, the EC is ‘less than a federation, more than a regime’, and as I will argue in this chapter the chosen analytical framework or point of departure has significant implications for our empirical conclusions. This means that the way we perceive ‘reality’ — here the transformation of Europe — will be intimately linked to the assumptions underlying our chosen theoretical perspective, or as John Ruggie has put it: how we think about transformation fundamentally shapes what we look for; what we look for obviously has an effect on what we find; if we look for signs of transformation through the lenses of the conventional structural approach [neorealism MW] of our discipline we are unlikely to conclude that anything much is happening out there; but we cannot say whether or not that conclusion is correct because the epistemological biases of that approach are such that it is ill-equipped to detect signs of transformation (1989:32).

The Schizophrenic Danes

Everybody seems to love Denmark. Or do they? Well, if one managed to take a stroll in the center of Paris at Christmas time last year, the traditional stylish shopping mall Le BHV just across the old town hall celebrated a true Noel Danois. The French may have a special crush on Denmark as the country is going through a period of intense ‘Denmark-hype’ led by the dynamic young President Macron. He loves Danish TV-series, flexicurity, our social-liberal model – and not least the Danish Commissioner Margrethe Vestager who he sees as an obvious candidate to lead the next European Commission.

Do Scandinavians Care about International Law? A Study of Scandinavian Judges’ Citation Practice to International Law and Courts

Although Scandinavians are often celebrated as the vanguards of human rights and international law, we know little about whether courts and judges in these countries have embraced those international courts and conventions that they themselves helped establish after the Second World War. This article presents original and comprehensive data on three Scandinavian courts’ citation practice. It demonstrates that not only do Scandinavian Supreme Courts engage surprisingly little with international law, but also that there is great variation in the degree to which they have domesticated international law and courts by citing their case law. Building on this author’s previous research, it is argued that Norway sticks out as much more engaged internationally due to a solid judicial review tradition at the national level. It is also argued that Scandinavian legal positivism has influenced a much more reticent approach to international case law than would normally be expected from this region in the world.

Do Election Rules Affect Deliberation? An Experiment on Deliberative Election Rules and Group Trust

Enhanced deliberation has been prescribed as the way forward to improve democratic decision-making, while generating positive attributes like trust and legitimacy. Yet, we do not know to what extent different decision-making election rules affect the deliberative process and its outcome. This article investigates to what extent different election rules in deliberative decision-making affect group trust by testing three ideal types of election rules (i.e. a dictator election rule, a representative election rule and a consensus rule) in a laboratory experiment. The findings show that the differences in election rules have a significant impact on the level of trust after deliberation. Interestingly, however, we find that the election rule of representative democracy yield more group trust than does the election rule of pure consensus and non-hierarchical decision-making. Thus our findings challenge the understanding by deliberative normative theorists that the more inclusion and consensus in the decision-making procedure the more trust and legitimacy amongst its participants.

Governing with Judges

When push comes to shove, who are the true masters of the EU — who is sovereign and has the final authority? With whom does the Kompetenz — Kompetenz rest, that is, the competence to determine the limits of the Community’s competences? Who — when seen with the benefit of hindsight — has governed the overall direction of the Community since its inception? These are, as we have seen in the previous chapters, the most important questions confronting the theoretically ambitious lawyer and political scientist today. If we glance back at the previous discussion, however, we quickly end up with one camp pointing to the member states and another looking to the Community structures. But there may be good reasons to pause at this point and ask whether questions such as these can be answered satisfactorily. If we leave the complex issue of defining who has the final competence in Europe today, will it then be possible to identify a single powerful actor or group of actors as the main vehicle of integration? Or would it be more to the point to say that the entire process has been so complex, diffuse and unpredictable that we are fundamentally unequipped to point to one actor or group of actors as the main driver of the Community experiment as it has evolved?