Global Constitutionalism and Its Challenges to Westphalian Constitutional Law

203 Pages·2018·1.397 MB·English

by  Martin Belov

GLOBAL CONSTITUTIONALISM
AND ITS CHALLENGES TO WESTPHALIAN
CONSTITUTIONAL LAW
Westphalian constitutionalism has shaped our understanding of politics,
socio-political institutions and personal and political freedom for centuries.
It is historically based in the foundations of Western modernity, such as
humanism and rationalism, and is organized around familiar principles of
national sovereignty, the rule of law, the separation of powers and democ-
racy. But since the end of the 20th century global constitutionalism has
gradually emerged, challenging both the constitutional ideology and the
constitutional design of Westphalian constitutional law. This book critically
assesses the structural and functional transformations in the Westphalian
constitutional tradition produced by the emergence of supranational and
global constitutionalism. In so doing, it evaluates the theory of global
constitutionalism, its legal and socio-political limits, and important issues
concerning the supranational constitutionalism of the EU. This leads to an
articulation of the constitutional theory of the emerging post-Westphalian
constitutionalism, examining its development during a period of signifi-
cantly increased access to and sharing of information, increased mobility
and more open statehood, as well as the rise of human rights and its encoun-
ter with populism and nationalism. It will be of great interest to scholars of
constitutional law and theory, particularly those with an interest in globali-
zation and supranationalism.
European Academy of Legal Theory Monograph Series: Volume 14
EUROPEAN ACADEMY OF LEGAL THEORY MONOGRAPH SERIES
General Editors
Professor Mark Van Hoecke
Professor François Ost
Titles in this Series
Moral Conflict and Legal Reasoning
Scott Veitch
The Harmonisation of European Private Law
Edited by Mark Van Hoecke & Francois Ost
On Law and Legal Reasoning
Fernando Atria
Law as Communication
Mark Van Hoecke
Legisprudence
Edited by Luc Wintgens
Epistemology and Methodology of Comparative Law
Edited by Mark van Hoecke
Making the Law Explicit
The Normativity of Legal Argumentation
Matthias Klatt
The Policy of Law
A Legal Theoretical Framework
Mauro Zamboni
Methodologies of Legal Research
Which Kind of Method for What Kind of Discipline?
Edited by Mark van Hoecke
Objectivity in Law and Legal Reasoning
Edited by Jaakko Husa and Mark van Hoecke
An Introduction to Comparative Law Theory and Method
Geoffrey Samuel
The Tapestry of Reason
An Inquiry into the Nature of Coherence and its Role in Legal Argument
Amalia Amaya
Democracy and Ontology
Agonism between Political Liberalism, Foucault and Psychoanalysis
Irena Rosenthal
Global Constitutionalism
and Its Challenges
to Westphalian
Constitutional Law
Edited by
Martin Belov
HART PUBLISHING
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Library of Congress Cataloging-in-Publication data
Names: Belov, Martin, editor.
Title: Global constitutionalism and its challenges to Westphalian constitutional law /
Edited by Martin Belov.
Description: Portland, Oregon : Hart Publishing, 2018. | Series: European academy of
legal theory monograph series | Includes bibliographical references and index.
Identifiers: LCCN 2017054354 (print) | LCCN 2017055293 (ebook) |
ISBN 9781509914906 (Epub) | ISBN 9781509914883 (hardback : alk. paper)
Subjects: LCSH: Constitutional law. | Law and globalization. |
Peace of Westphalia (1648) | Sovereignty.
Classification: LCC K3165 (ebook) | LCC K3165 .G58 2018 (print) |
DDC 342—dc23
LC record available at https://lccn.loc.gov/2017054354
ISBN: HB: 978-1-50991-488-3
ePDF: 978-1-50991-489-0
ePub: 978-1-50991-490-6
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Contents
Notes on Contributors ............................................................................vii
Introduction .............................................................................................xi
Part I. General Constitutional Theory of Global Constitutionalism
1. Global Constitutionalism and Normative Hierarchies ........................3
Jean-Bernard Auby
I. The Basic Problem: The Disorder Created by the Multiplication
and Dispersion of Legal Producers and of Places of Production
of Law in the Global Space........................................................3
II. Theories of Global Constitutionalism as Efforts to Instil
some Order and Values into the Normative Disorder
of Legal Globalisation ...............................................................4
III. The Problem of Normative Hierarchies
in Legal Globalisation ...............................................................5
IV. Global Constitutionalism and Links between Legal Orders .......7
V. Global Constitutionalism and Normative Arrangements ...........8
VI. Global Constitutionalism and Dissemination of the Rule
of Law’s Fundamental Principles .............................................10
VII. Conclusion: Necessity and Limits of Global
Constitutionalism ....................................................................11
2. The Challenges to Westphalian Constitutional Geometry
in the Age of Supranational Constitutionalism, Global Governance
and Information Revolution .............................................................13
Martin Belov
I. Taking Constitutional Geometry Seriously ..............................13
II. Geometrical Explanatory Paradigms in Westphalian
Constitutional Law..................................................................20
III. Post-Westphalian Challenges of Supranational
Constitutionalism, Global Governance and Information
Revolution to the Constitutional Geometry of Westphalian
Constitutional Law..................................................................38
IV. Conclusion ..............................................................................52
3. Overcoming False Dichotomies: Constitutionalism and Pluralism
in European and International Studies ..............................................55
Giuseppe Martinico
I. Aims and Structure ..................................................................55
vi Contents
II. Constitutionalism According to Krisch ....................................57
III. Questioning this Reconstruction ..............................................60
IV. Italian Constitutionalism between Resistance and Openness ....65
V. The Italian Constituent Process and its Relevance ...................66
VI. External Openness...................................................................70
VII. Final Remarks .........................................................................76
Part II. Limits to Global Constitutionalism
4. Counter-developments to Global Constitutionalism..........................81
Konrad Lachmayer
I. The Road Towards Constitutional Authoritarianism ...............81
II. The Threats to Global Constitutionalism ................................89
III. Between Societal and Civic Constitutionalism .......................101
5. Romanian Tendential Constitutionalism and the Limits
of European Constitutional Culture ................................................103
Manuel Gutan
I. Failure of the European Model of Civic Constitutionalism ....103
II. The European Constitutional Convergence and the Limits
of the European Constitutional Transplant ............................107
III. Factors Explaining the Poor Romanian Score in Endorsing
Civic Constitutionalism .........................................................109
IV. Romanian Tendential Constitutionalism ...............................118
V. Conclusions ...........................................................................127
Part III. Issues of European Supranational Constitutionalism
6. The Limits of Sovereignty Pooling: Lessons from Europe................133
Balázs Fekete
I. An Evergreen Problem Re-exposed ........................................133
II. Keohane’s Idea of Pooled Sovereignty ....................................135
III. Sovereignty Pooling in EU Constitutional Law ......................143
IV. The Nightfall of Sovereignty Pooling in Europe? ...................151
7. EU Agencies in the Internal Market: A Constitutional Challenge
for EU Law .....................................................................................161
Marta Simoncini
I. Introduction ..........................................................................161
II. EU Agencies in the Complex Nature of the EU Integration
Process ..................................................................................164
III. The Constitutional Value of the Meroni Doctrine .................168
IV. The Constitutional Challenges to EU Agencies ......................173
V. Final Remarks .......................................................................179
Index .....................................................................................................183
Notes on Contributors
Jean-Bernard Auby is Professor of Public Law, Sciences Po Paris, D irector
of ‘ Centre on Changes in Governance and Public Law’ , Former D eputy
Director of the Oxford Institute of European and Comparative Law.
Professor Auby is a member of the advisory boards of E uropean Public
Law , Review of European Administrative Law , International and Compar-
ative Law Quarterly , European Review of Public Law , Italian Journal of
Public Law , Rivista Italiana per le Scienze Giuridiche , Rivista Trimestrale di
Diritto Pubblico , Rivista Italiana di Diritto Pubblico Comunitario , Revista
Internacional di Direito Publico , Studi di Diritto Pubblico , Global Law Press ,
Revista Derecho, Empresa y Sociedad , R ivista Giuridica di Urbanistica ,
Revista Galega de Administracion Publica , Comparative Administrative
Law and Catolica Law Review .
Martin Belov is Chief Assistant Professor in Constitutional Law at the Uni-
versity of Sofi a ‘ St Kliment Ohridski’ Faculty of Law. Dr Belov has been
project researcher at the Max-Planck Institute for European Legal History
(Frankfurt am Main, Germany) and the Institute for Federalism (Fribourg,
Switzerland). He has been guest lecturer in European and Comparative
Constitutional Law in many European universities: University of Frankfurt/
Oder (Germany), European Law and Governance School (Athens, Greece),
University of S ö dertorn (Stockholm, Sweden), Scuolla Superiore Sant’ Anna
(Pisa, Italy), Staatlichen Studienakademie (Dresden/Bautzen, Germany),
University of Warsaw (Poland), University of Lisbon (Portugal), State
University of Milan (Italy), University of Cologne (Germany) etc. Martin
Belov has published eight books and more than 70 scientifi c papers. In the
fi eld of global constitutionalism he has published G lobal Governance and
Its Effects on State and Law (Peter Lang, 2016). His personal website is:
www.martinbelov.eu .
Manuel Gutan is Professor at the Lucian Blaga University of Sibiu, Faculty
of Law, where he teaches history of law and comparative law. His main
areas of research are history of constitutional law, history of public admin-
istration, constitutional transplants, law and culture. Dr Gutan is cur-
rently the Editor-in-Chief of the Romanian Journal of Comparative Law .
He recently published a book on ‘ Constitutional Transplants and Consti-
tutionalism in Modern Romania 1802 – 1866 ’ (2013, in Romanian). His
recent publications include: ‘ The Infra-Constitutionality of European Law
in Romania and the Challenges of the Romanian Constitutional Culture ’
viii Notes on Contributors
in R Arnold (ed), L imitations of National Sovereignty through European
Integration (Dordrecht, Springer Netherlands, 2016; ‘ Legal Transplant as
Socio-Cultural Engineering in Modern Romania ’ in Jani Kirov, Gerd Bender
and Michael Stolleis (eds), Konfl ikt und Koexistenz. Die Rechtsordnungen
S ü dosteuropas im 19. und 20. Jahrhundert Bd. I: Rumä nien, Bulgarien,
Griechenland (Duncker & Humblot, 2015); ‘ Le droit comparé contempo-
rain et l ’ actualit é de la th é orie des « formes sans fond » en Roumanie ’ (2013)
90 Revue de droit international et de droit compar é ; ‘ The Challenges of the
Romanian Constitutional Tradition. I. Between Ideological Transplant and
Institutional Metamorphoses’ (2013) 25 Journal of Constitutional History .
Bal á zs Fekete has an LLM degree (magna cum laude, 2007) from the
Katholieke Universiteit Leuven and he completed his PhD studies at the
P á zm á ny Pé ter Catholic University Faculty of Law and Political Sciences
(summa cum laude, 2011) under the supervision of Prof Zolt á n P é teri. He
has been participating in the Ius Commune Casebooks project focusing
on the relationship of national private laws and primary European Law
(2013– 2017) chaired by Professor Arthur Hartkamp. He is a m ember
of the Coordinating Board of the CEE Forum of Young Legal, Political
and Social Theorists, and he has been organising the Italian-Hungarian
Comparative Law Workshop for fi ve years together with Katalin Kelemen.
His main articles were published in the R eview of Central and East European
Law , Maastricht Journal of European and Comparative Law and J ahrbuch
f ü r Ostrecht , and he has also contributed book chapters to v olumes pub-
lished by Hart, Springer and Peter Lang. He is senior lecturer in law at the
ELTE University and fellow of the Hungarian Academy of Sciences Centre
for Social Sciences, both in Budapest.
Konrad Lachmayer is Professor of Public Law, European law and founda-
tions of law at Sigmund Freud University in Vienna ( www.lachmayer.eu ) .
He studied law at the University of Vienna and visited the University of
Cambridge (United Kingdom), the Max-Planck-Institute for Comparative
Public Law and International Law (Germany) and the Central European
University (Hungary). From 2013/14 to 2016/17 he held a research chair at
the Institute of Legal Studies, Centre for Social Sciences at the Hungarian
Academy of Sciences and was a research fellow at Durham Law School. His
research and teaching focuses on international constitutional law, especially
the methodology of constitutional comparison, counter-terrorism measures
and data protection as well as Austrian public law.
Giuseppe Martinico is currently Associate Professor of Comparative
Public law at the Scuola Superiore Sant ’A nna, Pisa. Prior to joining the
Scuola Sant ’ Anna, he was Garcí a Pelayo Fellow at the Centro de Estudios
Pol í ticos y Constitucionales (CEPC), Madrid and Max Weber Fellow at
the European University Institute, Florence. He is also Honorary Professor
Notes on Contributors ix
at the University of Henan (China) and Research Fellow at the Centre for
Studies on Federalism, Turin.
Marta Simoncini is an FWO post-doctoral fellow at the University of
Antwerp and King ’ s College London. Currently, she is also a teaching fel-
low at University College London (UCL). Previously, she was a Max Weber
Fellow at the European University Institute (EUI). Dr Simoncini obtained
her PhD in Administrative Law from the University of Pisa. She is an expert
in EU administrative law and governance, in particular in the checks and
balances applicable to discretion, especially in the context of risk-based
regulation. In these areas, she has published extensively in international
and national law journals. She has also authored a monograph on risk
regulation.