Constitutional Legitimacy and Credible Commitments in the European Union

* Associate Professor of Administrative Law, University Carlos III de Madrid. This article has been fundedby the project BJU2002–03794, directed by Professor Quadra-Salcedo I wish to thank María Fernández,Pablo Pérez Tremps, Pablo Zapatero, and two anonymous readers for their helpful comments. I also wantto thank Rebecca Jowers for her help. The usual disclaimer applies.

1 At the Meeting of the Heads of State and Government of the Member States of the European Union,17–18 June 2004. See the provisional text at:<http://www.europa.eu.int/comm/press_room/presspacks/constit/consolidated%20version_en.pdf>

Constitutional Legitimacy and CredibleCommitments in the European Union

Antonio Estella*

Abstract: The idea that the European Union must not adopt a constitution is gainingground in current legal research on European constitutionalism. The N-C (No Constitu-tion) thesis is being forcefully defended, in particular, by authors in the ‘contextual’ or‘law in context’ tradition. However, likewise using a ‘contextual’ methodology, in thisarticle I argue that the N-C thesis is in many regards misplaced. In this work, I defendthe idea that Europe must adopt a constitution for reasons of credibility. I also try to showthe main pitfalls of the N-C thesis.

I Introduction

The time is ripe for presenting a new approach to the problem of Europe’s legitimacy,and, in particular, of Europe’s constitutional legitimacy. As we know, the EU is cur-rently undergoing a process of constitutional building. The European Convention pre-sented to the Member States a draft Constitution in July 2003. Negotiations on thedraft constitution started under Italian presidency and have come to an end during thelast Irish presidency. Member States have therefore adopted a ‘Constitutional Treaty’,1

which has now to be ratified by them according to their respective constitutional pro-cedures. Referendums are even foreseen in some Member States. The ratificationprocess will therefore take a number of years. Whether it will be successful or not isunclear; what is clear is that it is taking place in a theoretical context in which the thesisthat the EU must not adopt a constitutional text is progressively making headway, atleast in the legal world. In this article, I shall focus on this thesis and shall refer to itas the ‘No-Constitution’ (N-C) thesis. Though a number of authors are working in thisdirection, the main representative of this strand of thought is J. H. H. Weiler. In this

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article, I shall focus on this author’s writings on the issue in question.2 I shall arguethat Weiler’s view of Europe’s legitimacy problems is flawed, and that a different per-spective must be adopted if one is to cope with the new challenges that the idea of aConstitution represents for European constitutionalism. In so doing, there is no needto reject contextualism, or to embrace legal formalism; on the contrary, contextualismprovides the adequate ground for a new approach to legitimacy.3

The N-C thesis has two parts: an empirical part and a normative part. The empiri-cal part argues that since Europe is not a demos, in the social sense, then Europe cannotadopt a constitution. The implicit assumption here is that in order to have a constitu-tion, one must previously have a demos (in the social sense of the word). I challengeboth the assumption and its consequence: (1) there is no need to have a demos in orderto have a constitution, so (2) Europe could have a constitution without being a demos.

The normative part of the N-C thesis is that Europe should not have a constitution.Accordingly, the adoption of a constitution would entail the risk of fostering the emergence of a European demos, in the organic sense of the word. This course shouldbe avoided, since ‘Europe’s mission’ is to counterbalance the nationalistic (volkish)impulses of Member States. I shall also attempt to challenge the normative part of theN-C thesis. I will contend that (1) a constitution would not necessarily result in the creation of a demos in the organic sense; and (2) a constitution should be adopted for reasons of credibility.

II May Europe Have a Constitution?

A The N-C Thesis: Empirical Aspects

The empirical part of the N-C thesis starts from the assumption that in order to havea constitution, the will of the group of people, states, or entities that wish to integrateis not sufficient. There is one previous, sine qua non condition: the existence of a certaindegree of social cohesion among the groups, states, peoples, and so that seek integra-tion. For example, in Weiler’s words:

In many instances, constitutional doctrine presupposes the existence of that which it creates: the demoswhich is called upon to accept the Constitution is constituted, legally, by that very constitution, andoften that act of acceptance is among the first steps towards a thicker social and political notion ofconstitutional demos. Thus, the empirical legitimacy of the constitution may lag behind its formal

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2 At least two reasons explain my focus on Weiler’s writings. First, I believe Weiler’s represents the best andclearest explanation of the N-C Thesis. Second, though other authors belong to this line of thought, inreality their accounts originated, if not fully, at least partially, in Weiler’s. See, however, the excellentaccounts by M. Poiares: ‘Europe and the Constitution: What if this is as Good as it Gets?’ (2000) 5 Constitutionalism WEB Papers; D. Grimm, ‘Le moment est-il venu d’elaborer une ConstitutionEuropéenne?’, in R. Dehousse (ed.), Une Constitution pour l’Europe? (Presses de Sciences Politiques, 2002);V. Constantinesco, ‘Europe Fedérale ou Fédération d’Etats-Nations’, in R. Dehousse (ed.), Une Consti-tution pour l’Europe? (Presses de Sciences Politiques, 2002); and S. Weatherill, ‘Is Constitutional FinalityFeasible or Desirable? On the Cases for European Constitutionalism and European Constitution’. (2002)7 Constitutionalism Web Papers. For a summary of the different senses in which the concept ‘legitimacy’is used in the legal world, see A. Estella, The EU Principle of Subsidiarity and Its Critique (Oxford University Press, 2002).

3 The best account of what the contextual method is may be found in F. Snyder, New Directions in European Community Law (Weidenfeld & Nicolson, 1990) and F. Snyder, ‘Out on the Weekend: Reflec-tions on European Union Law in Context’ (1994) EUI Working Paper in Law, no. 4. In particular, thespecific contextual approach that I use in this article mixes law and political economy, in the sense thelatter is understood by J. Elster, Nuts and Bolts for the Social Sciences (Cambridge University Press, 1989).

authority—and it may take generations and civil wars to be fully internalised- as the history of the US testifies. Likewise, the juridical presupposition of one demos may be contradicted by a persistent socialreality of multiple ethnoi or demoi who do not share, or grow to share, the sense of mutual belonging-ness transcending political differences and factions and constituting a political community essential toa constitutional compact of the classical mould. The result will be an unstable compact, as the history ofCanada and modern Spain will testify. But, as a matter of empirical observation, I am unaware of anyfederal state, old or new, which does not presuppose the supreme authority and sovereignty of its federaldemos4 (emphasis added).

Weiler’s idea is crystal clear: integration (or the legal dimension of it: a constitution)would be like bones without flesh in the absence of a social demos. Of course, the authoris not speaking of the legal or institutional inability to adopt a constitution; he is speak-ing of functional limitations. The adoption of a constitution for Europe, though legallyor formally possible, would simply not do. However, at the onset, one should note theindefiniteness of Weiler’s position: he does not clearly specify the exact degree of socialcohesion required for adopting constitutions. In the second place, one should also notethat Weiler does not give much empirical evidence to substantiate his argument (thereferences to the Spanish and Canadian cases are vague in this context). Third andlastly, the mechanism5 that connects social legitimacy to integration and constitution isnot explained, but rather simply shown. Why is it, according to Weiler, that constitu-tions work better in social compacts?

The true relevance of my previous points becomes evident if one takes into accountthe strong analytical consequences derived from the point of departure of the N-Cthesis as regards the European Union. According to this thesis, the EU has been suffering from a legitimacy crisis since approximately the enactment of the Single European Act. This legitimacy crisis is deemed to be the result of Europe’s evolutiontowards a more integrated, quasi-constitutional, type of political entity. That is, it isconsidered the result of the adoption of state-like features, such as majority voting.Again in Weiler’s words,

‘The legitimacy problem is generated by several factors, which should be discussed separately. Theprimary factor is, at least arguably, that the European electorate (in most Member States) only grudg-ingly accepts the notion that crucial areas of public life should be governed by a decisional process inwhich their national voice becomes a minority which can be overridden by a majority of representativesfrom other European countries. In theoretical terms there is, arguably, still no legitimacy to the notionthat the boundaries within which a minority will accept as democratically legitimate a majority decisionare now European instead of national’.6

It is not entirely clear to me the extent to which Weiler still upholds this position in hismore recent work. For example, in an article published in 2002, Weiler states that

‘you would think that [the EU’s institutional arrangements] would result in perennial instability. As weshall see, one of the virtues of the European construct is that it produces . . . a surprisingly stable politi-cal polity. Member States of the European Union accept their constitutional discipline with far moreequanimity than, say, Quebec. There are, surely, many reasons for this, but one of them is the peculiarconstitutional arrangement of Europe’.7

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4 See J. H. H. Weiler, ‘A Constitution for Europe? Some Hard Choices’ (2002) 40(4) Journal of CommonMarket Studies, at 567.

5 I use the concept of mechanism in the specific sense Elster does. See J. Elster, Nuts and Bolts for the SocialSciences (Cambridge University Press, 1989), at 3–10.

6 J. H. H. Weiler, ‘The Transformation of Europe’, (1991) 100 Yale Law Journal at 2472.7 J. H. H. Weiler, ‘Federalism Without Constitutionalism: Europe’s Sonderweg’ in K. Nicolaidis and

R. Howse (eds.), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (Oxford University Press, 2001) at 56.

However, considering both his 1991 and 2002 articles together, one may conclude thathis current hypothesis is that the more the EU adopts state-like characteristics, thegreater is the risk of a legitimacy crisis. The case of majority voting would be one majorexample of this.

In any case, the N-C thesis uses specific episodes of the Community’s history tojustify its previous claim. The Danish ‘no’ to Maastricht is, according to this thesis, acase in point; the close ‘yes’ of the French Maastricht referendum would be anotherexample.8 I imagine the N-C thesis might use the Irish ‘no’ to Nice as a further exampleof the relevance of its argument.

The use of these examples to show an alleged ‘legitimacy crisis’ in Europe is howevercounterintuitive, to say the least. From the N-C thesis perspective, how then can it beexplained that the second referendums on the same issues (that is, the second Danishreferendum on Maastricht and the second Irish referendum on Nice) produced oppo-site results? If Europe’s legitimacy crisis explains the ‘no’ vote, could one then concludethat the ‘yes’ vote implies that the legitimacy crisis malady has been cured? If this werethe case, how could one then explain such a quick recovery from this illness?

It is thus clear that other variables have to be unearthed in order to explain resultssuch as the outcome of the Danish or the Irish referendums. For example, it has beenpersuasively argued by Laursen9 that the Danish referendums could be explained byjust making reference to a strictly national variable—such as the level of support forthe government. Therefore, if the Treaty was approved in the second Danish referen-dum, it was because there was a new government (the social-democrat government ofRasmussen), which convinced part of the people who were against both Maastrichtand the former conservative government (especially unskilled workers) to vote ‘yes’ inthe second round. More simply stated, the first refusal was more a ‘no’ to the incum-bent than to the Treaty, just as the second approval was more a ‘yes’ for the new gov-ernment than for the Treaty. In general, it can be said that referendums on Treatyratification are not the best test of support for the European Union, since it is not easyto disentangle the European question from strictly national issues that affect theresult.10

Beyond the explanation of particular outcomes such as the Danish referendum onMaastricht, what is important is to examine the N-C thesis argument according towhich the more the EU acquires state-like features, the greater the risk of a legitimacycrisis, due to the fact that Europe is not a demos in the social sense of the word. Tostart with, I challenge the assumption that a demos in the social sense is a sine qua noncondition for a constitution. As a matter of fact, the existence of a social compact mayfacilitate the road to integration and therefore the adoption of a constitution. But thecreation of a demos prior to the adoption of a constitution does not necessarily haveto be the case. At most, this may condition the kind of pact to which the parties mayagree. The nuance is important: conditioning is not eliminating a possibility, in this casethe possibility of adopting a workable constitution. The lack of a demos may imply,for example, that the constitution will have to emphasise the importance of procedures



8 Note, in this sense, J. M. Areilza ‘El principio de subsidiariedad en la construcción de la Unión Europea’(1995) 15 (45) Revista Española de Derecho Constitucional, at 53.

9 F. Laursen, ‘Denmark and the Ratification of the Maastricht Treaty’, in F. Laursen and S. Vanhoacker(eds), The Ratification of the Maastricht Treaty (Martinus Nijhoff, 1994).

10 See in the same vein I. Sánchez-Cuenca, ‘El déficit democrático de la Unión Europea’, (1997) 78 Clavesde Razón Práctica, at 38.

to protect minorities, or the establishment of institutions that take due account of thediversity of a given polis. The important thing is not whether or not a demos exists; theimportant thing is that the pact is an equilibrium, that is, that a positive-sum game situation is created for all players.

Legitimacy problems may therefore arise. But this will be the consequence of thepact not being an equilibrium, and not the consequence of the lack of a demos. Herea parallelism can be drawn with private law: contracts among individuals do not implythe existence of a previous relationship between the contracting parties. This is the caseeven in marriage contract; the state does not enter into the reasons why a couple decidesto get married (save of course if marriage is the instrument of a fraudulent activity).The important thing is that the marriage contract works properly for both parties, thatit creates a balanced situation of rights and duties for both. Constitutions, above allconstitutions between states, are like marriage contracts in the public law sphere. Onedoes not need to presuppose that the parties love each other to accept it, it is enoughthat the constitution makes them better off than in their previous situation.11

Turning to Europe, it is not possible to seriously claim that there is a legitimacy crisisand that it would deepen if Europe adopts state-like features such as a constitution. Ihave shown before that many of the traditionally alleged signs of uneasiness withEurope, such as referendums on Treaty ratifications, are rooted in national variables,more than in European ones. In any case, although the N-C thesis claims that ‘exit’from the European Union is not a real alternative,12 I believe that if the alleged legiti-macy crisis really existed, Member States experiencing such a crisis would have con-sidered the possibility of withdrawal. However, up to now, I do not know of a singleinstance in which this has been the case. This would prove that, although at certainjunctures Member States may disagree with particular decisions, on balance, there is no single Member State that comes up enough times on the loser’s side so as to withdraw.

To deny that Europe suffers from an overall legitimacy crisis does not mean that allMember States feel and think the same concerning integration. If one takes the Euro-barometer into consideration, it is clear that although in overall terms levels of supportfor Europe are positive, they differ greatly from Member State to Member State.13 Thediverging levels of European support are what must be explained, and not the causes ofa generalised legitimacy crisis. The debate about Europe’s legitimacy should focus onthis—more targeted—aspect, rather than focusing on such an indeterminate matter asthe causes of an alleged legitimacy crisis.



11 Interestingly, Weiler uses the same metaphor (marriage) in this context, but with a different purpose, i.e.to stress the impact that constitutions have upon the creation of a demos (like marriage would upon theconsolidation of a couple). My perspective diverges from Weiler’s in the sense that I stress the institutional(and not the affective-creation potential) of both Constitutions and marriage contracts. See J. H. H. Weiler,‘A Constitution for Europe? Some Hard Choices’, (2002) 40(4) Journal of Common Market Studies at 566.I personally would not take the ‘marriage’ metaphor too far in order to point out the ‘affective’ creationpotential of constitutions: in many cases marriage has a subtle but very real capacity to undermine rela-tionships, rather than to reinforce them.

12 See, for instance, J. H. H. Weiler, ‘The Transformation of Europe’, (1991) 100 Yale Law Journal at 2403.13 See the last Eurobarometer that had been published (Autumn 2003) at the time of writing. The N-C thesis

argument according to what overall levels of support for Europe are constantly decreasing is not entirelyconvincing: if one checks the last Eurobarometer, from Autumn 1998 to Autumn 2003, the percentage ofpeople who think that membership to the EU is ‘a good thing’ remained quite constant (the median is51%; in Autumn 1998 it was of 54%, and in Autumn 2003 it was of 48%, but in the two Eurobarometers

B An Alternative Explanation

At the onset, it is important to say at least a few words about the dependent variable.As mentioned above, what we are trying to understand are not the causes of an overalllegitimacy crisis in Europe, but rather why different Member States have different levelsof support for Europe. Levels of support for Europe can be determined in a numberof ways. For example, if one takes ‘the desired rhythm of integration’ as a measure ofsupport,14 one finds that there are important differences in public opinion amongMember States on this issue. Given this as the dependent variable, how can these dif-ferences be explained?

To simplify the matter, an explanation of these differences may revolve around theperceptions held in Member States concerning the costs and benefits derived from inte-gration. Member States that think the benefits derived from integration outweigh itscosts will tend to support integration, and vice-versa. When I mention ‘costs’ I am refer-ring, in particular, to the costs derived from the transfer of sovereignty from MemberStates to the European institutions. In effect, such transfers imply that Member Statesor individual citizens have less power than before, or at least are more constrained toexercise the power they transferred to the EU level. In other words, the integrationprocess at the least implies that powers which could be exercised autonomously in thepast must now be exercised in common in the new situation, and, at the most, a lossof power (consider, for example, the transfer of monetary sovereignty to the EuropeanCentral Bank). Second, when I mention ‘benefits’, I am referring to both policy andinstitutional benefits. Concerning the first, if Member States or citizens think that theEU designs better policies than is the case at the national level, they will support inte-gration, and vice-versa. Let us take, for example, social policy. If the EU adopts andimplements welfare policies that go beyond those found in Member States, citizens orMember States concerned about this issue will support integration. On the contrary, ifMember States think that their welfare policies are better than European ones, theywill not support integration. It is clear that the Danes, with a well-developed welfarestate will have many doubts about integration in that regard, whereas Spaniards, witha less well-developed welfare state, will look upon European integration much morefavourably on this point. In the first case, the opportunity cost of playing the European card is much higher than in the second one. Only the development of a super-welfare state at the European level could convince the Danes that European policies are a good alternative to their national ones.

On the benefits side, this comparison of costs and benefits likewise includes institu-tional aspects (the costs remain the same: the transfer of sovereignty to the EU). Inthis case, I assume that citizens want both efficient and democratic institutions. A ratio-nal citizen will think that the more efficient an institution, the better off he or she will



previous to the last one it was of 56% and 54%, respectively). However, even in the case that the ‘decrease’hypothesis was confirmed, it is clear that the levels of decrease are very different from Member State toMember State (see again the last Eurobarometer, at pages 7 and 8). The question would be how to explainwhy in some Member States the level of decrease is greater than in others. In any case, I think that anoverall decrease, in the case this trend was confirmed, would not suffice to substantiate the argument thatEurope suffers from a ‘social’ legitimacy crisis.

14 This is the ‘measure’ used by Sánchez-Cuenca for establishing the dependent variable ‘support for Europe’.See Sánchez-Cuenca, ‘The Political Basis of Support for European Integration’ (2000) 1(2) European UnionPolitics at 154.

be. If citizens think that European institutions are more efficient than national ones,they will support integration, and vice-versa. Concerning democracy, I use this notionin a broad sense, including concepts such as transparency, accountability, or honesty(lack of corruption). For example, it will be easier for citizens in a Member State whoseinstitutions are perceived as corrupt to support integration if these citizens perceiveEuropean institutions as honest or less corrupt. Or for example, it will be less easy forcitizens with a good perception of the quality of their national democracy to supportintegration, if, when measured against national standards, they think that Europeaninstitutions are less democratic.

It is important to mention that when comparing costs and benefits, Member Statesor citizens compare the information they have about their national situation to theEuropean one. This information may be imperfect or biased, but that is a differentproblem. Therefore, variations in public support for Europe are the expression of differ-ent perceptions about the costs and benefits derived from integration. Whether differentdegrees of support for the integration process results in a legitimacy problem in a par-ticular Member State depends not only on a cost-benefit analysis, but also on a matterof expectations: if that Member State perceives that it is a loser most of the time andthat this situation will not change in the future, then a legitimacy problem might emerge.On the contrary, if the majority of the people in a given Member State think that thecosts of integration are higher than its benefits, but expect that the situation maychange, it is probable that no legitimacy problem will arise. But we could also considerthe opposite situation: if, after comparing the national and European levels, a MemberState concludes that it will get a lot from European integration but, afterwards, the citizens in that Member State get much less than was expected, a legitimacy problemmay arise, unless they think that the situation can be changed in the future to meet theoriginal expectations. In any case, the important thing is to underscore that legitimacyproblems are the result of the performance of a given polis—in this case, the EU—ininstitutional and policy terms.

Available empirical evidence seems to be highly consistent with the previous hypoth-esis. For example, Sánchez Cuenca has tested what he calls an ‘institutional hypothe-sis’, in which levels of performance of European and national institutions are taken asindependent variables in order to explain different levels of support for Europe (mea-sured in terms of the ‘desired pace of integration’). He has mixed that hypothesis withthe ‘policy benefits’ hypothesis.15 As indicated, his results offer support to what I havecalled, at a more general level, the cost-benefit analysis hypothesis: the worse theopinion of domestic institutions and the better the opinion of European institutions,the greater the support for integration, and vice versa. Likewise, the greater the



15 Originally, the ‘benefits’ hypothesis was formulated by M. Gabel and H. Palmer, ‘Understanding Varia-tion in Public Support for European Integration’, (1995) 27 European Journal of Political Research at 3,and M. Gabel ‘Public Support for European Integration: An Empirical Test of Five Theories’, (1998) 60The Journal of Politics at 333. Sánchez-Cuenca uses that hypothesis and mixes it with what he calls an‘institutional’ hypothesis. According to Sánchez-Cuenca, one should not view this mixture as somethingcontradictory since ‘the economic benefits of integration are achieved through political means’. Further-more, Sánchez-Cuenca points out that ‘Gabel himself could accept this basic point, since he has foundthat in some cases other factors—such as the kind of political party the individual supports . . . are at leastas powerful as occupational skill or income in explaining the level of support for integration’. See I. Sánchez-Cuenca, ‘The Political Basis of Support for European Integration’ (2000) 1(2) European UnionPolitics at 150.

perceived benefits from integration, the greater the support for it. In particular, the find-ings were as follows:

1. Maximum support for the EU is found among those citizens that have a ‘badopinion’ of domestic institutions and a ‘good opinion’ of Europe’s institutions;

2. Minimum support is found in the opposite situation;3. Citizens with a ‘good opinion’ of both the national and European levels are

likely to support integration, but less that in case 1.4. Citizens that have a ‘bad opinion’ of both levels are against integration, but

less than in case 2.5. For each of the four cases, support for integration is greater when the benefit

variable takes its highest level than when it takes its lowest one.16

C Europe May Have a Constitution

What I have called the ‘costs-benefit hypothesis’ may be applied to the idea of a con-stitution. Therefore, support for or against a constitution seems to have nothing to dowith the idea of demos.17 In general terms, since a European constitution implies a further step in the integration process, it can be easily assumed from the previousempirical evidence that those who expect to be better off with a constitution will tendto favour it, whereas those who expect to be worse off with a constitution will tend toreject it. Being worse off or better off with a constitution will depend, in the end, onthe specific pacts that the constitution includes. Expectations will therefore play a rolehere in order to explain the future emergence of legitimacy problems. In this process,the important thing is that enough people, both within and across Member States, areon the winner’s side. Admittedly the task is not easy: but this is irrespective of whetherEurope is or becomes a demos or not.

III Should Europe Have a Constitution?

A The N-C Thesis: Normative Aspects

The N-C empirical thesis (Europe may not adopt a constitution) is crowned by a nor-mative position, according to which Europe should not adopt a constitution. Here weleave the relative calm waters of empirical testing and enter the rougher ones of nor-mative or evaluative elucidation. The normative side of the N-C thesis departs fromthe following premise: Constitutions define collective identities. People’s allegiance to



16 In order not to overload this paper I remit to Sánchez-Cuenca’s (see note 16 supra) article for empiricalpurposes. The empirical basis of my article, of which only the conclusions can be reflected here for reasonsof space, are built upon Sánchez-Cuenca’s.

17 The Eurobarometer has included a question on people’s support for a European constitution since at leastSpring 2000. The answers are almost uniform through time: though the majority of Europeans feel moreattached to their nation-States than to Europe, a majority support the adoption of a European Consti-tution. For example, the figures were as follows in the last issue of the Eurobarometer that includes infor-mation on this subject: 40% feel they are only citizens of their own country; 44% feel they are first citizensof their own country and second Europeans; 8% feel Europeans first and citizens of their own countrysecond; only 4% feel they are only Europeans. Concerning support for a European Constitution, 10%think a Constitution should not be adopted, whereas 63% feel a Constitution should be adopted. See Eurobarometer 59, Spring 2003, available at <http://europa.eu.int/comm/public_opinion>.

http://europa.eu.int/comm/public_opinion>.

constitutions is ultimately rooted in the acceptance of the core values that a constitu-tion upholds. Therefore, constitutions are one of the most powerful mechanismsdesigned to create a sense of demos in the social meaning of the word. Constitutionsare not only instruments or institutional artefacts. They also incorporate world views,which in turn foster the sense of belonging to a certain national community. In otherwords, through the values they support constitutions serve to more clearly draw theline between those who belong to the community and those who do not. To quoteWeiler once more,

‘Constitutions are also about moral commitment and identity. Our national constitutions are perceivedby us as doing more than simply structuring the respective powers of government and the relationshipsbetween public authority and individuals or between the state and other agents. Our Constitutions aresaid to encapsulate fundamental values of the polity and this, in turn, is said to be a reflection of ourcollective identity as a people, as a nation, as a state, as a community, as a Union. When we are proudand attached to our Constitutions we are so for these very reasons. They are about restricting power,not enlarging it; they protect fundamental rights of the individual; and they define a collective identitywhich does not make us feel queasy the way some forms of ethnic identity might’.18 (emphasis added).

The second point the N-C thesis makes is that there is a risk of a spillover effect fromthe creation of a sense of belonging to a national community to the configuration ofa demos in the organic, ethno-cultural, sense of the word, that may be provoked byconstitutions. In other words, constitutions are ‘good’ as long as they help to reinforcesocial links among the citizens of a national community through the values theyendorse. But they are ‘bad’ since that very reinforcement may result, almost too easily,in the creation of a demos in the nationalistic sense of the word. To use a metaphor,Constitutions would be a sort of ‘institutional’ Dr Jekyll and Mr Hyde. Again, inWeiler’s words,

‘Modern liberal constitutions are, indeed, about limiting the power of government vis-à vis the individ-ual; they do, too, articulate fundamental human rights in the best neo-Kantian tradition; and they reflecta notion of collective identity as a Community of values which is far less threatening than more organicdefinitions of collective identity. They are a reflection of our better part. But, like the moon, like muchwhich is good in life, there is here a dark side too . . . We have been invited to develop a patriotismaround our modern, liberal, constitutions. The constitutional patriot is invited to defend the constitu-tion . . . In a constitutional democracy we have a doctrine of a fighting democracy, whereby democratichospitality is not extended to those who would destroy constitutional democracy itself. To be a goodconstitutional liberal . . . is to be a constitutional nationalist and, it turns out, the constitutional stakesare not only about values and limitations but also about its opposite: the power which lurks underneathsuch values’.19 (emphasis added)

Taking into consideration that the previously mentioned risk is too great, the N-C thesisconcludes that Europe should not adopt a constitution. For this thesis, it would beparadoxical if Europe were to become a super-state in the ethnoist sense of the word,given that Europe was born, among other things, to counterbalance the nationalisticimpulses of Member States. Thus for the N-C thesis, the adoption of a constitutionwould be an important step in the direction of configuring a super-state and, thus,should be avoided. Furthermore, as one of its main missions, the European Unionshould serve to limit the volkish impulses of national constitutionalism. In other words,



18 J. H. H. Weiler, ‘A Constitution for Europe? Some Hard Choices’, (2002) 40(4) Journal of Common MarketStudies at 569.

19 J. H. H. Weiler, ‘Federalism Without Constitutionalism: Europe’s Sonderweg’, in K. Nicolaidis and R. Howse (eds), The Federal Vision: Legitimacy and Levels of Governance in the United States and theEuropean Union (Oxford University Press, 2001) at 64.

to enable Member States to keep their ‘good’ constitutionalism (national but notnationalistic), Europe should remain deprived of as many state-like features as possi-ble. The development of European constitutionalism, with all of its ingredients, wouldreinforce the process towards the development of a ‘bad’ constitutionalism, both withinand beyond Member States.20

The last argument the N-C thesis employs to justify that the EU should not adopta constitution is that Europe already has a constitution (as a matter of judicial reso-lution), and that this constitution works since it integrates what the N-C thesis calls theprinciple of Constitutional Tolerance. As indicated previously, this position seems tocontradict Weiler’s insistent idea that Europe is suffering or could suffer a legitimacycrisis. Be it as it may, Weiler’s words merit being quoted once again. According to theauthor,

‘To extol the extant constitutional arrangement of Europe is not to suggest that many of its specificscannot be vastly improved. The Treaty can be paired down considerably, competences can be better pro-tected, and vast changes can be introduced into its institutional arrangements. But when it is objectedthat there is nothing to prevent a European constitution from being drafted in a way which would fullyrecognize the very concepts and principles I have articulated, my answer is simple: Europe has now sucha constitution. Europe has charted its own brand of constitutional federalism. It works. Why fix it?’.21

B Constitutional Models

Let us start by referring to the N-C thesis’ main assumption that constitutions are aboutvalues and, for that reason, they help to reinforce a sense of common identity. Thisassumption may be understood either in an empirical or in a normative way. In itsempirical sense, the N-C thesis would be saying that, as a matter of fact, constitutionshelp to reinforce societal links through the values they uphold. In its normative sense,the N-C thesis assumption would indicate that constitutions should also serve to unitepeople through the values they endorse.

It is not entirely clear to me whether authors such as Weiler take the previous assump-tion in its normative or in its empirical dimension. Therefore I will comment on bothaspects. Starting with its empirical sense, it should be underscored that Weiler does notoffer much empirical evidence concerning this aspect, nor does he give reasons to justifythe view that constitutions help to create a sense of identity among people. Perhapsthis should be taken as an indication that Weiler uses this assumption in its normativesense. In any case, Weiler’s assumption, according to which constitutions create or helpto create allegiance through the values they endorse can be questioned from the per-spective of constitutional practice. It is clear that modern constitutions are composedof a broad series of very different, when not contradictory, values. Such normative plu-rality makes very difficult to substantiate the argument that constitutions have a poten-tial to create allegiance through values. The Spanish Constitution may serve to illustratethis point (but this could apply, I believe, to many other modern constitutional texts).For example, Article 38 of the Spanish Constitution (found in Title I of the Constitu-tion, ‘Fundamental Rights and Duties’) recognises the right of ‘freedom of enterprisein the framework of a market economy’. However, Article 128.1 of the Constitution(which belongs to Title VII, ‘Economy and Taxation’) quite clearly states that ‘all the



20 J. H. H. Weiler, Haltern and Mayer, ‘European Democracy and Its Critique: Five Uneasy Pieces’, (1995)Harvard Jean Monnet Working Paper 1, at 26, in fine.

21 Weiler, ‘Federalism Without Constitutionalism . . . ‘op. cit. note 20 supra, at 70.

country’s wealth, in its different forms, and independently from its ownership (eitherpublic or private) is subordinated to the general interest’. In other words, Article 38 isthe backbone of the ordo-liberal credo, while Article 128.1 has clear neo-Marxist over-tones. Of course, if I am a Marxist I will tend to focus on the second and forget thefirst, and if I am a liberal I will tend to do the opposite. But as a liberal, would I saythat the Constitution’ in general creates in me a sense of belonging to a wider com-munity? Would I include the Marxists in that national community? In other words, if,as Weiler argues, constitutional values are the source of my sense of belonging to acommunity, it is impossible for me not to recognise that the Constitution endorses con-tradictory values. Taking into account those contradictions, I could say, at the most,that ‘part’ of the constitutional text creates in me a sense of common identity (withthose who think or feel like I do) while another part does not. But in this case, onewould have to admit that constitutions play as much a secondary role in creating asense of belonging through values.

The truth of the matter is that constitutions are not one-sided, coherent, ideologicalcharters or platforms. This has a political explanation: constitutions are the result ofprotracted negotiations among different political forces. This makes it almost impossi-ble to find coherence at the valorative level in constitutional texts. Moreover, peopleseem to know this. This is why people do not seem to see themselves primarily reflectedin constitutions because of the values they endorse.22

Moving from the empirical to the normative level, one could ask whether, althoughconstitutions do not serve primarily to create a sense of common identity throughvalues, this should be the case. Do we have to conceive of constitutions as being morethan mere institutional artefacts? In other words, it could be argued, from the N-Cthesis perspective, that constitutions do not (empirically) create a sense of commonidentity through values, since they are not what they should be, that is, a coherent‘panel’ of common values. Should we then remedy this problem and make Constitu-tions more coherent in order that they serve the primary purpose of creating a senseof common identity? I do not believe so. I think constitutions are and should remain,above all instruments to improve the lives of the people to which they are addressed.

To conceive constitutions as mere instruments, or if one prefers a less pejorativeword, as institutional devices, does not imply downplaying the importance that con-stitutions have in societies. It just reflects another model of what constitutions are andshould be. In this instrumental model, constitutions play a primary role in establishingthe rules of the game that people will have to play and a number of major commitments,and in making them credible.23 If rules and commitments are good, then the game willyield good results; if rules and commitments are not so good there will be problems,and, as has been already indicated, these problems could become of a legitimacy nature.From my instrumental perspective, and to use Weiler’s words, constitutions should pri-marily be a matter of distributing power and limiting it, of establishing equilibriums



22 It is interesting to note that in a survey conducted by the Spanish Centro de Investigaciones Sociológicason the ideology of the Spanish Constitution, when Spaniards were asked ‘which ideas prevail in the Constitution?’, a majority answered that ‘ideas from all ideologies’ prevail (36% in 1984 and 57% in 1985).Those who thought that ideas from the ‘right’ prevail were 12% and 6%, respectively; those who thoughtthat ideas from the left prevail were 10% and 5%, respectively. The ‘don’t knows’ amounted to 23% and24%, respectively. See C. I. S. ‘Actitudes y opiniones de los españoles ante la Constitución y las institu-ciones democráticas’, Estudio 1459 (Madrid, 1985).

23 I shall return to this argument in point D of this section.

between the public and the private spheres, of establishing who decides and how. Inother words, constitutions should be about how to make people better off. In contrast,constitutions should not be a matter of creating allegiance through the values theyincorporate. This should be, at the most, a very secondary concern. If allegiance to theconstitution is created, it is because the constitutional arrangements are good enough,and because they allow individuals to develop and implement their different values andinterests (although these values may not be specifically reflected in the constitutionaltext).

Therefore we have at least two models of what constitutions are and should be, theinstrumental model and the values or axiological model. The main implication thatderives from this conclusion is that the creation of a demos, either in the social ororganic sense of the word, does not necessarily have to be the case once a constitutionis adopted. It all depends on the constitutional model one chooses. If the constitutionaldrafters opt for the axiological model, thus putting the emphasis on questions such ascommon values and common cultural heritage, then the risk of achieving a demos inthe social or the organic sense will be greater. On the contrary, if they opt for the instru-mental model which I defend here, thus putting greater emphasis on the rules of thegame and main commitments, then it is less probable that a demos in the social ororganic sense of the word will arise as a consequence of the constitution. One shouldnot misunderstand my words: I believe that, if the drafters choose the second model,some sort of constitutional allegiance might be developed, but on an institutional basisand not on an evaluative one.24 People will feel close to their constitutional institutionssince they are better, or provide better results, than in the previous situation. Thus themain focus of the drafters of a constitution should be how to create better institutions,more efficient and accountable and transparent ones, rather than seeking to create asense of common identity, as the N-C thesis suggests. In other words, it is not only thatthe instrumental model would not create a common identity through values; it is that,contrary to what the N-C thesis understands, constitutions could but should not beused to this end, at least primarily.

Turning to Europe, I think, as the N-C thesis seems to imply, that if the drafterschoose the axiological model, then a demos in the social sense could emerge in Europe,with time, and under certain conditions (a strong degree of coherence among the valuesthe constitution upholds, at the very least). I could even accept that the risk of a‘spillover’ from a social demos to an organic demos could become a real one. Admit-tedly, one has to recognise that the path taken by certain political forces, such as theEuropean Popular Party, is not very promising at that regard. As everyone knows, theEuropean Popular Party25 proposed that a reference to Europe’s ‘common religious heritage’ should be made in the preamble of the European Constitution.26 This is



24 The instrumental model is not even based on the development of a sort of Habermasian ‘constitutionalpatriotism’, grounded on civic values. It is thinking on people’s allegiance to the constitution due to theadequate performance of its institutions: for example, people would feel attached to their constitutionsince institutions such as the Constitutional Court would perform its role correctly.

25 European Popular Party, A Constitution for a Strong Europe. Document Adopted by the European PopularParty Congress of 18 October 2002 in Estoril, Portugal (available at:<http://www.eppe.org/archive/Constitution_EN_1992.asp>), at paragraph 20.

26 In fact, the current version of the Constitutional Treaty, which has been approved by the Head of Statesand Governments in its meeting of 17–18 June 2004, has included a reference to this aspect. The first para-graph of the preamble reads: ‘Drawing inspiration from the cultural, religious and humanist inheritanceof Europe . . .’.

http://www.eppe.org/archive/Constitution_EN_1992.asp

precisely the kind of outcome that should be avoided from an instrumental model per-spective. But the important thing is to stress that both the European Popular Party andWeiler’s position suffer from the same problem: although it is very probable that theywould not agree on the precise reference that the preamble of the European Constitu-tion should contain in terms of values and common heritage, they both have the samevision of what a constitutional text should be—that is, an axiological vision. The onlyway to remedy this would not be to replace the reference to the common ‘religious’ her-itage with a different one, but to modify the vision of what constitutions should be.

C The Functional Dimension

In the previous section I challenged the N-C thesis’ main assumption that constitutionscreate a sense of common identity through values, and some of the consequences deriv-ing from such an assumption. In this section, let me turn to a different N-C thesis argu-ment, its functional argument. As has been previously said, the N-C thesis argues thatas a matter of fact (or as a matter of judicial resolution), Europe already has a con-stitution. Not only it does have a constitution, but it is also has a constitution thatworks more or less properly. If we already have a workable constitution, then it is uselessto undertake a constitutional process. Therefore, the status quo27 should be maintained.

I wish to challenge this argument from at least two perspectives. First, I shall arguethat the N-C thesis functional argument is misconceived. And second, I shall offer somecomments about the current court-based process of constitutional making.

At the onset, it is necessary to understand whether the gist of the N-C thesis func-tional argument (‘if it works, why fix it?’) is sound or not. I believe it is not. Again, itis surprising that authors such as Weiler, who are experts in the operation of Commu-nity law in its relationship with the constitutional laws of Member States, may arguethat the present state of affairs is correct from a functional perspective. To drive thepoint home: as research conducted by Weiler and others28 showed, the constitutionalcourts of most Member States simply fly in the face of the main constitutional princi-ples that the Court of Justice has developed, and in particular, they are violentlyopposed to the principle of supremacy. This, as the N-C thesis followers know, is notmerely an elegant discussion of power battles among courts and justices in Europe. Onthe contrary, the fact (since it is an uncontested fact) that most constitutional courtssimply disregard Community law in their day-to-day operations has very specific reper-cussions for people. I shall give but one illustration of the farce to which this positionon the part of constitutional courts may lead, which is extracted from the case law ofthe Spanish Constitutional Court on European integration. In Martinez,29 a Spanishcitizen who had worked both in Spain and Germany, applied for an invalidity allowanceto the Spanish administrative authorities. Since this was denied, he then went to theSpanish courts and filed the same petition. All the ordinary courts rejected Martinez’s



27 I am referring to the ‘legal status’ of the Community legal order. It is clear that the NC thesis advocatesfor many institutional and legal reforms, but is opposed to changing the current legal status of the Community legal order to a Constitutional one.

28 J. H. H. Weiler, A. M. Slaughter and B. Stone (eds.), The European Courts and National Courts: Doctrineand Jurisprudence (Hart, 1998).

29 Case 45/1996, 25 March 1996 (BOE 27 April 1996). See a more extensive comment on the Spanish Constitutional Court case law on European integration in A. Estella ‘A Dissident Voice: The Spanish Constitutional Court Case-Law on European Integration’ (1999) 5(2), European Public Law at 269.

claim. He then turned to the Constitutional Court. Martinez’s main argument was thatthe ordinary courts had not taken into account a number of documents provided asevidence of his disability. It happened to be the case that those documents had beendrafted by the German administrative authorities. As Martinez had enclosed no trans-lation into Spanish, the ordinary courts had simply rejected those documents as evidence. Thus Martinez claimed before the Spanish Constitutional Court that Article24 of the Constitution (a sort of Spanish functional equivalent to the American dueprocess clause) had not been respected. In support of his action, Martinez claimed theapplication of Regulation 1408/71, which imposed upon the judicial organs of MemberStates the obligation not only to accept documents drafted in one of the languages ofthe Member States of the EC that have been submitted as evidence, but also the oblig-ation to order their translation sua sponte if necessary.30 However, the ConstitutionalCourt chose to apply Article 601 of the Spanish civil procedure law, according to whichthe onus of translating documents submitted as evidence in proceedings falls to theparties, not the courts. Therefore, it dismissed Martinez’s action. In doing so, theSpanish Constitutional Court used one old and well-established argument in its caselaw, according to which the interpretation and application of Community law is amatter of ordinary legality, which is left to the ordinary courts. As in Martinez, theconsequences of this approach are that, ultimately, the Spanish Constitutional Courtapplies national law, even when it contradicts Community norms vested with bothsupremacy and direct effect, such as regulations. Lastly, it also seems that the Consti-tutional Court resolution was unjust: as one of the Justices of the Constitutional Courtsaid in his dissenting vote, Martinez had the right to receive benefits from the Spanishadministrative authorities because of his disability.

The situation seems somewhat better at the ‘ordinary courts’ level. Though muchresearch still needs to be conducted on this issue in most Community Member States,it is fairly safe to say that, for example, supreme courts, are more likely to apply Com-munity law (and even to request preliminary rulings from the Court of Justice, whichconstitutional courts almost never do). However, this is not enough to substantiate theargument that the present Community ‘constitutional’ model works. The N-C thesisfollowers would probably agree that, in the present situation, it all depends on variablesthat go beyond the reach of the potential beneficiaries of Community law: if one fallsin the nets of the ordinary courts, the chance that Community law will be applied ishigher. However, if one falls in the hands of constitutional courts, this possibility willbe severely reduced. It is clear that leaving the legal fate of people to a matter of acci-dent is not precisely a symptom that the current system works.

If one adds to this other institutional pitfalls, upon which almost everyone agrees,such as the cumbersome nature of Community decision-making processes, the lack oftransparency and accountability of institutions, etc., then it is very difficult to defendthe idea that the European Union legal status should remain unchanged. On the con-trary, I think that the system does not work (which is very different from saying thatthere is a legitimacy problem), that it has a lot of failures, and that the process of con-stitutional building could provide an opportunity to re-address the process towardsachieving better democratic standards.

To close this section I shall turn now to the current process of constitutional makingin the EU. This process has been led by a very particular institution: the Court of Justice



30 See Art 81 of Reg 1408/71.

of the European Communities. It is not necessary to delve here into the main consti-tutional hallmarks of its case law, such as Van Gend and Loos, Costa v Enel, Les Verts,and their progeny. The reasons why the Court of Justice has taken a leading role in theprocess of European integration are much debated. For some, the minoritarian traitsof the Community’s institutional system prompted the Court of Justice to inject amajoritarian counter-balance through its case law.31 For others, the reason is moresimple: the Court of Justice has a hidden ‘integrationist’ agenda, that is to say, it fostersas much integration as it can through its case law.32 Be that as it may, the outcome isindisputable: everyone agrees that the Court of Justice has played and still plays acrucial role in constitutional making in Europe.

The problem is that when authors such as Weiler argue that ‘if the system works,why fix it?’, they are in a way upholding not only the outcome but also the process.That is, they are justifying the fact that the process of constitutional making in Europecontinues to be orchestrated by the European Court of Justice. This is, however, veryproblematic. With all due respects for the Court of Justice (the following does not onlyapply to this institution, but to judicial policymaking in general), it is problematicbecause, first, judicial constitutional making is one of the least transparent processesthat exist. Second, it is problematic because it is one of the least democratic processesthat exists. And last but not least, it is problematic because it is one of the least egali-tarian processes that exists.

With regard to transparency, it is sufficient to say that the language courts use arenot precisely examples of clarity.33 The reasoning of courts, and above all constitutionalcourts, is complex, sophisticated, and highly technical. I am not saying that there arenot good reasons for this. Although some efforts could be made to ameliorate the trans-parency of many courts’ decisions, the truth of the matter is that the legitimacy of con-stitutional courts might be at issue if their decisions were presented in a different way.What I am saying is simply that, precisely due to this technical constraint on courts,judicial policy-making is not the adequate place, in terms of transparency, to under-take a process of constitutional reform.35 Therefore we have another puzzle here:Europe has a constitution but, because of transparency problems, European citizensdo not seem to know it. I believe this would be a strong argument in favour of chang-ing the nature of the process—not of maintaining it; unless of course we want to keepsecret the fact that a process of constitutional law-making is taking place in Europe.

Second, judicial policy-making is one of the least democratic processes that exist. Byits very nature, it prevents most people from expressing what they think and deciding



31 M. Poiares, We, the Court (Hart, 1998).32 A-M. Burley and W. Mattli, ‘Europe before the Court: a Political Theory of Legal Integration’, (1993)

47(1), International Organization at 41.33 To be sure, the issue of judicial transparency is broader than this. But it is sufficient for my present

purposes to focus on the problem of legal reasoning and language.34 G-A. Caldeira and J-L. Gibson give evidence that the Court of Justice is one of the least visible institu-

tions of the EU. In an article published in 1997, these authors affirmed that ‘overall, few Europeans knowa great deal about the ECJ—4,5% in the EU claim to be very aware of it; Caldeira and Gibson, ‘Democ-racy and Legitimacy in the EU: the Court of Justice and its Constituents’ (1997) 152 International SocialScience Journal at 209. Transparency and visibility are not exactly the same thing, but the lack of the firstmay be the cause of the absence of the second. As these authors recognise in the same research cited above,‘diffuse support’ for the Court of Justice is low ‘not because ordinary citizens defer to the Court but prob-ably because so few people can muster knowledge on specific decisions’ (ibid., 222). To my knowledge,there are no surveys indicating whether the public knows that the Court of Justice has ‘constitutionalised’the Treaties.

on basic issues such as, in the case of Europe, their constitutional fate. I am not sayingthat constitutional courts do not play a key role in democracy. I think they do have arole in limiting the excesses of the majoritarian principle. But precisely because theirrole is to undemocratically limit the abuses of democracy, one should expect the inter-vention of constitutional courts to be exceptional. If this normative view is accepted,one should then have to admit that constitutional courts are not an adequate settingfor making constitutions. On the contrary, the process should be just the opposite:people should have the chance to decide about whether they want a constitution or not,and if they do, what constitution they want, while the intervention of constitutionalcourts should be limited to correcting the pitfalls derived from the democratic processesof constitution building. If this applies to the context of the Member States, it is unclearwhy it should have to be different in the case of the European Union.

Third and lastly, judicial policymaking is one of the least egalitarian processes thatexist. As Galanter35 has shown in the American context, the judicial process offers moreopportunities to the ‘haves’, to those who have more resources, than to the ‘have nots’.Therefore judicial processes tend to present a ‘haves’ bias. Moreover, Galanter offersmassive empirical evidence in support of his claim. As for the European context, I havechecked whether Galanter’s hypothesis is sound (taking as dependent variable ‘differ-ences in the number of requests for preliminary rulings sent to the ECJ by MemberStates’ courts’).36 Though one has to admit that other variables must be taken into con-sideration to explain diverging levels of requests for preliminary rulings sent from dif-ferent Member States to the Court of Justice, it is quite sensible to argue that per capitaincome plays an important explanatory role in this regard (the higher the per capitaincome, the more requests for preliminary rulings and vice versa). Thus, there is suffi-cient evidence to argue that judicial processes are biased on the side of groups, indi-viduals (or States) who have more resources. This seems to be the case at the Europeanlevel as well. Therefore, if judicial processes are far from egalitarian, then one shoulddiscard them as the natural place where important decisions such as those concerningthe making of constitutions should be decided.

IV Why Europe Should Adopt a Constitution

In Section II, I reviewed the normative side of the N-C thesis. Naturally, criticism ofthe N-C normative thesis is not enough to justify why Europe should adopt a consti-tution. In this point I delve into the arguments that make it possible to substantiate, atthe normative level, the need for a European constitution.

Traditionally, people supporting the idea of a European constitution use one mainargument: globalisation. This argument has, in turn, two different aspects. For some,a European constitution would be a major factor in ‘governing’ the current course ofglobalisation.38 However, they do not specify in what direction globalisation should begoverned. Instead, those concerned about ‘social justice’ argue that a European onsti-tution would be necessary in order not just to ‘govern’ but to ‘correct’ globalisation



35 M. Galanter: ‘Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change’ (1974) 9Law and Society Review at 95.

36 A. Estella, ‘Judicialización en la Unión Europea: quien gana y quien pierde’, (2001) 8 Cuadernos con Alternativas.

37 F. Mancini, ‘Europe: the Case for Statehood’, (1998) 4 European Law Journal at 29.

towards a pattern more consistent with social principles.38 Correcting globalisationwould imply implementing social programmes at the European (and world) levels,addressed to compensate the losers in this process.

Irrespective of its soundness, which I do not wish to contradict here, it is clear thatboth arguments are of an ad hoc nature. The question is whether it is possible to findmore long-term, institutional reasons to support the idea of a European constitution.Expressed in other terms: are the theoretical reasons why we support constitutions innational contexts good enough for the European level? I believe the answer is affirma-tive. In other words, it is not enough to say that a European constitution is necessaryto ‘correct’ globalisation, since this would ‘strengthen the capacity for common action’of Europe,39 unless we specify the sense in which constitutions strengthen our capabilities (more than, for example, international treaties).

Turning to this second (institutional) rationale, I wish to argue that Europe shouldadopt a constitution for reasons of credibility. In order to substantiate my argument,let me first introduce a pair of concepts: the concept of commitment and the conceptof credibility itself.40

In ordinary language, a ‘commitment’ is a duty, and in its strongest sense, it may alsoimply the idea of obligation. However, in political science literature, the concept of‘commitment’ has a more specific meaning. Thus according to Sánchez-Cuenca,41 acommitment is ‘a manipulation of your set of alternatives enabling you to get anoutcome that in the absence of the commitment you could not achieve. Here manipu-lation means strictly two things: either you restrict your set of alternatives or youimpose costs on some of these alternatives’.

One encounters many commitments in ordinary life, not only in the usual sense ofthe word, but also in its more technical meaning. For example, I love chocolate but Iam overweight. Therefore I put the nice chocolates my wife bought inside a cupboardand lock it with a key that my wife keeps in a secret place. This is a reflexive commit-ment, that is, a commitment to myself. But think of this example: imagine my wife has heart problems. The doctor asks her to walk as much as possible, but she is lazy.Therefore I buy a dog so that she has to walk him. This is a transitive commitment. Imanipulate someone’s else set of alternatives in order to commit him or her to doingsomething that otherwise he or she would not do.

In turn, law is full of both transitive and reflexive commitments. As a matter of fact,we could even conceptualise law as a composite of commitments. When a norm says‘murder is forbidden’, in reality it is encapsulating a commitment not to murder people.This would be a transitive commitment. But there are reflexive commitments in law aswell. For example, when I make my will, I am committing myself to distribute mywealth in a particular way.

At this point it is necessary to introduce the second concept mentioned above—credibility. Not all commitments use institutional technology. Those that use institu-tional technology are more credible than those that do not. It is clear that my wife’s



38 J. Habermas, ‘Why Europe Needs a Constitution’, (2001) 11 New Left Review and J. Habermas, ‘So, WhyDoes Europe Need a Constitution?’ (2001) 2 Robert Schuman Center of Advanced Studies Working Paper.

39 Habermas, ‘So, Why Does Europe Need a Constitution?’ op. cit. note 39 supra, at 13.40 See, in general, J. Elster, Ulysses and the Sirenes (Cambridge University Press, 1982). I cannot develop this

argument to its fullest in this short space, so I only present here its main traits, even at the risk ofsimplification. I hope to present a larger version of this idea in my paper ‘Law as Credibility: the case of European Union Law’ (forthcoming).

41 Sánchez-Cuenca, ‘Institutional Commitments and Democracy’, (1997) 94 CEACS Working Papers at 3.

commitment to walk the dog in order to be healthier is as much a moral commitment,but not an institutional one (unless we use the word ‘institutional’ in a very loose way).This commitment could not be compared, in terms of credibility, with a criminal lawsaying ‘murder is forbidden’. Law is therefore a type of institutional technology usedto make commitments more credible. In fact, one can even say that law is the mostsophisticated type of institutional technology designed to give credibility to commitments(under certain conditions).

Therefore two main ideas emerge from the previous discussion. First, commitmentsand credibility are two interrelated but different concepts. And second, law is more akind of institutional technique to instil credibility to commitments than a commitmentitself. One further example may serve to clarify the distinction between commitmentand credibility and the role of law as a credibility device. Think of the limitation ofterms in office. The incumbent could say when he or she is in office ‘I will not stay inoffice more than two terms’. An alternative possibility would be that the constitutionitself provides (as in the US Constitution does)42 that no one may be president for morethan two terms.43 The first is a political commitment, the second is a commitmentencapsulated in law. Though the commitment is the same in both cases (not to be president more than two terms), the infrastructure used to render credibility to it is nevertheless different (political in the first case, legal in the second). Furthermore, it isclear that, under certain conditions, a legal commitment will be more credible than apolitical one.

This second idea is linked to a related discussion. What are the conditions that makelaw a credibility device? Stated simply, such conditions are both internal and externalto the commitment. The main condition internal to the commitment is its resistance tochange: the greater the resistance to change, the greater the credibility. The main con-ditions external to the commitment are the delegation of power to independent agen-cies from the parties to the commitment in order to resolve disputes, and the existenceof enough resources to implement the commitment. The more independent the agencythat has to resolve a dispute, the more credible the commitment. Furthermore, thegreater the resources for implementing the commitment, the greater credibility.

Differences in the legal conditions of credibility explain why some legal systems aremore credible than others. This is fairly obvious and needs no further discussion here.But it also explains why different norms have different degrees of credibility. This,however, needs to be explained in more detail.

In order to be understood, I shall compare constitutional law and international lawin terms of the ‘conditions of credibility’ explained previously. In Western countries(this can be applied, a fortiori, to the European Union Member States) constitutionallaw44 has an important degree of resistance to change; it is patrolled by independent



42 See Amendment XXII to the US Constitution (Section 1).43 The example is taken from the Spanish case. Former President Aznar promised that he would not stay

in office more than two terms. However, although he repeated this commitment incessantly, doubts about whether he would honour it or not only vanished when he appointed a successor. The Spanish Constitution does not limit the president’s terms in office.

44 For the sake of simplifying the presentation of this idea, I leave omitted discussion of the different typesof norms a constitution may contain. Essentially, we may find ‘rules of the game’ and ‘commitments’within a constitution. For some authors, the rules of the game (such as, for instance, the procedural rulesfor passing laws in national parliaments) are not commitments, while other kinds of rules (the delegationof monetary powers to an independent agency, the European Central Bank) are commitments. However,some other authors admit that the difference between rules of the game and commitments is rather blurred.

agencies (and not by the parties to the commitment); and an important amount ofresources (economic, administrative) is invested to make it operational (many EUMember States invest resources in establishing particular courts for reviewing consti-tutional law, the ‘constitutional courts’).

As lawyers know, the picture is rather different in the field of international law. Atthe onset, international law is not very resistant to change. More importantly, its resis-tance to change does not often depend on international law itself, but on other norms(mainly, on constitutional norms). Furthermore, although there are agencies patrollingcompliance with international law, there are generally many doubts about their realindependence. As a matter of fact, compliance with international law is still, in manyrespects, a matter of voluntary choice by the parties to the commitment, the states.Lastly, in terms of resources, in many cases there are no specific resources for imple-menting international law. For example, there is usually no police force distinct fromthe states’ police forces to ensure compliance with international law.

All these features do not make international law ‘worse’ than constitutional law; theysimply make it less credible than constitutional law. To be sure, constitutional law isnot without costs. In other words, there is a trade-off between credibility and othervalues or objectives. For example, one obvious trade-off is between credibility and flexibility. The greater the credibility, the less flexibility, and vice-versa. If constitutionalnorms are very resistant to change, then it will be more difficult to adapt them to chang-ing circumstances. If we want to prioritise flexibility over credibility, then we shouldnot choose constitutional law, but rather a looser kind of norm, such as internationallaw. We might even choose mixed forms, such as soft law. Therefore, the selection of thekind of norm depends on the specific equilibrium sought between credibility and other contradictory values (such as flexibility).

Turning to the European Union context, it is fairly clear that, despite the efforts ofthe Court of Justice to constitutionalise the Treaties, Community law still is closer inmany regards to international law than to constitutional law. At the very least, I thinkeveryone would have to admit that international law is the main foundation upon whichcommunity law is built (it is sufficient in this respect to bear in mind the procedure for EC Treaty reform). If this contention is accepted, then the conclusions from theperspective of the legal conditions of credibility as regards Community law are quitesimilar to the conclusions we have mentioned above as regards international law. Start-ing with the resistance to change, although the procedures for Treaty reform requireunanimity, recent history shows that this has not been an obstacle to constantly amend-ing the Treaties (at least three reforms in 10 years, or four reforms in 12 years if onecounts the current constitutional reform). This, however, is not the only point we shouldconsider when analysing ‘resistance to change’ (in fact it all depends on the particularamendment procedures that the constitution incorporates, which at least in theory



For example, after much discussion of the topic, Sánchez-Cuenca, an author who supports the need todifferentiate both aspects, has to admit that: ‘If this distinction [between rules of the game and commit-ments] still sounds ad hoc, I would be happy to name constitutional rules “preventive commitments”,“second order commitments” or anything similar . . . See I. Sánchez-Cuenca, ‘Institutional Commitmentsand Democracy’, (1997) 94 CEACS Working Papers at 30. I think the difference between rules of the gameand commitments is not that great. However, I prefer not to discuss this here, since it would divert us fromthe main focus of this article.

could be softer than the current Treaty amendment procedure).45 Rather, the point isthat the very structure of Community law allows for constant changes, all the normsthat do not have direct effect being a primary example. A norm that does not havedirect effect is a norm that is very vulnerable to change, as the impressive rate of non-implementation or incorrect implementation of Community legislation in MemberStates shows. One could counter-argue that de facto non-compliance occurs in manywell-developed national legal systems as well. However, my argument is not only thatthis happens as a matter of fact, but that, formally speaking, the lack of direct effectof many norms facilitates non-compliance. Low resistance to change is a condition ofmany Community law norms.

Regarding the second legal condition of credibility, ‘independent agencies for conflict resolution’, at the top of the system Community law has one such agency, theEuropean Court of Justice.46 This agency’s independence from Member States is anuncontested fact. However, in many regards, this independence is jeopardised by thefact that execution of Court of Justice rulings depends directly on the will of the partiesto the commitment, the Member States. This major flaw makes this condition lessprominent in Community law than ideally should be the case.

Lastly, as regards the ‘resources’ condition, as the previous paragraph suggests, it isvery clear that Community authorities have few resources to implement Communitylaw by themselves. This is fairly obvious from the perspective of Community adminis-trative law, the basis of which is the principle of indirect administration. Economies ofscale support this solution. However, at many junctures, the fact that the EU does nothave its own resources for implementing Community law means that ultimately Com-munity law may be disregarded by national administrative agencies.47 In other words,the perennial lack of EU administrative resources to implement Community law whenMember States fail to do so, constantly calls the credibility of EC law into question.

The overall conclusion is that Community law is a sort of legal system with a lowdegree of credibility. When commitments are encapsulated in Community law, thereare many reasons to think that such commitments may not ultimately be enforced. Theenforcement of commitments encapsulated in Community law depends on too manyvariables. Of course, there is a pay-off in terms of flexibility. But it is at this juncturewhere the normative discussion emerges once again. Normatively speaking, one mayhave a preference for flexibility over credibility, or for greater flexibility than credibil-ity. I think that underneath the N-C thesis approach the concern for flexibility is a veryreal and respectable one. However, if what we want is to ‘strengthen the capacities of



45 However, in the case of very soft amendment procedures, one could doubt whether we would be in frontof a ‘real’ Constitution or not: the idea of law as credibility includes a substantive conception of Consti-tution, not a formal one. In other words, calling to a specific set of norms a ‘constitution’ does not rendercredibility to it by itself. This is why the discussion about the conditions of credibility is relevant.

46 Whether other institutions, and in particular, the European Commission, can be included in this group of‘independent agencies’ is a much-debated issue. My own view of the Commission is closer to a parlia-mentary government than to an independent agency, and this is why I do not mention it here. However,I admit that the European Commission has some of the characteristics of certain independent agencies(such as its condition of public prosecutor).

47 Implementation problems are also connected to a problem different from the resources problem, which isthe structure itself of Community law. Community administrative law is in reality Community interna-tional administrative law. If a directive is not implemented by the national legislator, then it is difficult fornational administrative agencies to take it into account for implementation purposes.

the EU’ in order to make people better off, as Habermas points out, the present mixof International and Constitutional law that Community law represents today willsimply not do. One important factor for strengthening our capabilities would be to havea legal system that instils sufficient degrees of credibility for the commitments MemberStates make. The adoption of a European constitution (that is, the adoption of a legalform particularly resistant to change, with powerful independent agencies both at thedecisional and implementation levels and with enough resources to perform their func-tions), would certainly contribute to achieving this goal.



Constitutional Legitimacy and Credible Commitments in the European Union

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