This chapter focuses on the evolution of systems of constitutional justice since 1787. It first provides an overview of key concepts and definitions, such as constitution, constitutionalism, and rights, before presenting a simple theory of delegation and judicial power. In particular, it explains why political elites would delegate power to constitutional judges, and how to measure the extent of power, or discretion, delegated. It then considers different kinds of constitutions, rights, models of constitutional review, and the main precepts of ‘the new constitutionalism’. It also traces the evolution of constitutional forms and suggests that as constitutional rights and review has diffused around the world, so has the capacity of constitutional judges to influence, and sometimes determine, policy outcomes.
Chapter
Nuno Garoupa and Pedro C. Magalhães
This chapter focuses on the constitutions of European countries as well as on the mechanisms in place to interpret and enforce them. It starts by defining ‘constitution’. It then proceeds to a discussion about the role of courts and constitutional review of legislation. Focusing in particular on centralized constitutional review, it describes the variety of powers enjoyed by contemporary constitutional courts. Existing mechanisms for litigation and judicial appointment are also considered. Finally, it addresses the existing empirical evidence about both judicial behaviour in such courts and their political impact. The chapter concludes with an examination of current trends in the direction of supranational constitutionalism and constitutional review.
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14. The European Union
A Constitutional Order in the Making
Berthold Rittberger
This chapter examines how the European Union acquired distinctive constitution-like features. It begins with a discussion of three routes to constitutionalization: the first is through changes in the EU's primary law; the second focuses on ‘in between’ constitutionalization; and the third leads directly to the European Court of Justice and its jurisprudence. The chapter proceeds by discussing two developments that have shaped the EU constitutional order almost since the beginning: the emergence of a body of EU law constituting a set of higher-order legal rules, and the consolidation of the constitutional principle of representative democracy. It explains how the supremacy and direct effect of EU law, as well as the EU court's concern with the protection of fundamental rights, helped transform the EU into a constitutional polity. It also considers how the extension of the legislative, budgetary, and other powers of the European Parliament animated the constitutional principle.
Chapter
Peter Ferdinand
This chapter examines how laws, constitutions, and federalism provide structure to the context of political life. It first considers the importance of constitutions in determining the basic structure of the state and the fundamental rights of citizens that they establish before asking whether the Universal Declaration of Human Rights is Western-centric. It then explores different ways in which states may attempt to realize justice in applying the law, with particular emphasis on differences between Islamic and Western practice. It also discusses the importance of constitutional courts, the ways that the institution of federalism contains the powers of the state and manage diverse societies, and consociationalism as an alternative approach to managing such diversity. Finally, it comments on the increasing legalization of political life.
Chapter
Paul Kelly
This chapter examines John Stuart Mill's views on liberty. It first provides a short biography of Mill before discussing his revision of psychological hedonism in light of accusations by Thomas Carlyle, and Samuel Taylor Coleridge and his followers, that Mill's hedonistic naturalism is no better than a philosophy for ‘swine’. Mill addressed this charge by drawing a categorical distinction between higher and lower pleasures. The chapter also considers the equally problematic attempt to derive Mill's liberty principle from an act-utilitarian moral philosophy as well as the claim that Mill's religion of humanity involves a form of moral and philosophical coercion as great as anything he challenges. It concludes with an analysis of Mill's Considerations on Representative Government and shows that its defence of constitutional democracy reflects his philosophical liberalism.
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Richard Rose
This chapter discusses the distinction between democratic and undemocratic states, noting that it is not only about whether there are elections: it is about whether or not it there is the rule of law. When both conditions are met, elections are free and fair and the government is accountable to the electorate. When laws can be bent or broken, unfair elections represent the will of governors more than that of the governed. The chapter first defines democratic states and outlines the characteristics of a democratic state before assessing the state of states today. It then considers three kinds of undemocratic states, namely: constitutional oligarchy, plebiscitarian autocracy, and unaccountable autocracy. It also examines how democratization has more often come about by trial and error rather than through gradual evolution and concludes by analysing the dynamics of democratic and undemocratic states.
Book
Edited by Desmond Dinan
Origins and Evolution of the European Union provides an authoritative account of the emergence and evolution of the European Union from the aftermath of World War II to the uncertainties of the present era. It explains the forces, events, and individuals that have shaped one of the most unusual and controversial political entities in history. This second edition covers key issues including the antecedents of European integration in the years before World War II; the challenges of reconstruction and reconciliation in the early post-war period; the ups and downs of European integration in 1960s and 1970s; the acceleration of European integration in the late 1980s and early 1990s; almost-continuous enlargement; the eurozone crisis; the constitutionalization of the EU; and Britain's troubled membership. The text is updated throughout and includes new chapters focusing on the United Kingdom and European integration, and the constitutionalization of the EU.
Chapter
Charlotte Burns
This chapter focuses upon the European Parliament (EP), an institution that has seen its power dramatically increase in recent times. The EP has been transformed from being a relatively powerless institution into one that is able to have a genuine say in the legislative process and hold the European Union’s executive bodies (the Commission and Council, introduced in Chapters 9 and 10) to account in a range of policy areas. However, increases in the Parliament’s formal powers have not been matched by an increase in popular legitimacy: turnout in European elections is falling. Thus, while the EP’s legislative power is comparable to that enjoyed by many national parliaments, it has struggled to connect with the wider European public. The chapter explores these issues in detail. In the first section, the EP’s evolution from talking shop to co-legislator is reviewed; its powers and influence are explained in the next section; the EP’s internal structure and organization are then discussed with a focus upon the role and behaviour of the political groups, and finally, the European Parliament’s representative function as the EU’s only directly elected institution is discussed.
Chapter
Charlotte Burns
This chapter focuses on the European Parliament (EP), an institution that has been transformed from being a relatively powerless institution into one that is able to have a genuine say in the legislative process and hold the European Union’s executive bodies to account. However, increases in the Parliament’s formal powers have not been matched by an increase in popular legitimacy: decreasing turnout in European elections up to 2014 turned around in 2019, but an increasing share of the vote is now going to populist Eurosceptic parties. The EP’s legislative power is comparable to that of many national parliaments, but it has struggled to connect with the wider European public. The chapter explores these issues: the EP’s evolution from talking shop to co-legislator; its powers and influence; its internal structure and organization, with a focus on the role and behaviour of the political groups. Finally, the EP’s representative function as the EU’s only directly elected institution is discussed.
Chapter
2. The history of EU institutions:
seven decades of institutional change
Renaud Dehousse and Paul Magnette
EU institutions have frequently been reformed since the origins of what is now the European Union (EU), and particularly so over the past twenty years. This chapter explains why and how this quasi-constant change has taken place. It begins by identifying five phases in this history: the founding, consolidation, relaunch, adaptation, and the current phase of reaction to functional challenges. The chapter then assesses the respective weight of state interests, ideas, and institutions in the evolution of EU institutions. In retrospect, institutional change in the EU appears to have followed a functionalist logic, leading to complex compromises that, in turn, prompt regular calls for ‘simplification’ and democratization.
Chapter
Renaud Dehousse and Paul Magnette
This chapter examines the history of European Union institutions, and especially the quasi-constant change that has taken place since the creation of the EU. It begins with a discussion of five phases of EU institutional development: the founding, consolidation of the European Community model, institutional change through task extension, reform of the institutional system, and the brief ‘constitutional’ moment at the turn of the century. It then considers the euro crisis and Brexit, along with the respective weight of state interests, ideas, and institutions in the evolution of EU institutions. It shows how institutional change in the EU seems to have followed a functionalist logic, leading to complex compromises that, in turn, prompt regular calls for ‘simplification’ and democratization.
Chapter
Stijn Smismans
This chapter discusses the extent to which decision-making in the European Union can be considered democratic and legitimate. The chapter clarifies the concepts ‘democracy’ and ‘legitimacy’, and describes how, although initially the legitimacy of the European polity was not perceived as a problem, it became more problematic as the EU gained more competences. The European democratic deficit became an important issue of debate only during the 1990s after the Maastricht Treaty had transferred considerable powers to the EU. The main solution to the democratic deficit has been inspired by the parliamentary model of democracy and involves strengthening the European Parliament (EP), while also paying attention to the role of national parliaments and regional and local authorities. The chapter also shows how the governance debate at the start of the twenty-first century broadened the conceptual understanding of democracy in the EU by addressing the complexity of European governance (see also Chapter 7). By looking at different stages of policy-making and different modes of governance, while dealing with issues such as transparency and the role of civil society, the chapter discusses a wider range of issues associated with the democracy and legitimacy of the Union. It assesses the impact on EU democracy of the Constitutional Treaty and the Lisbon Treaty. The chapter concludes by warning that three main crises, namely the economic, migration, and security crises, have revived nationalist and populist movements exacerbating the challenges to the EU’s legitimacy.
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This chapter explores the interrelationships between law, constitutions, and federalism. It first explains the importance of constitutions in shaping the basic structure of the state and the fundamental rights of citizens that they establish before discussing the Universal Declaration of Human Rights, in particular asking whether it is Western-centric. It then considers the ways in which states may attempt to realize justice in applying the law, with emphasis on the distinction between Islamic and Western practice. It also examines the role of constitutional courts and judicial review, legal adjudication of political problems, how the institution of federalism is used to contain the powers of the state and to manage diverse societies, and consociationalism as an alternative approach to handling social diversity. Finally, it analyses the increasing legalization of political life.
Chapter
This chapter examines the new strategy adopted in March 2000 by a special European Council in Lisbon to make the European Union (EU) more competitive, culminating in the signing of the Treaty of Lisbon. The Amsterdam Treaty had scarcely entered into force before further Treaty reform emerged on the agenda. Throughout the year 2000, a new intergovernmental conference met to address outstanding institutional issues that had not been settled at Amsterdam. It concluded in December 2000 with the longest European Council in history, which led to the Treaty of Nice. The chapter first considers the Nice Treaty, before discussing the Lisbon Strategy, the European Security and Defence Policy, the Constitutional Treaty, the issue of enlargement, the European Parliament (EP), and the nomination of a new European Commission. It ends with a discussion of the Treaty of Lisbon.
Chapter
Clive Church and David Phinnemore
This chapter explores how the EU ended a long period of constitutional change by agreeing the Treaty of Lisbon and used it to face new challenges of financial crisis, Brexit, and Covid-19—the latter events leading to thoughts that further treaty change might be needed. The process started with the 2002–03 Convention on the Future of Europe leadin to the Constitutional Treaty of 2004 and in October 2007 produced the Treaty of Lisbon which eventually entered into force on 1 December 2009. Its implementation was complicated by the eurozone crisis, resulting in extra-treaty arrangements and another treaty amendment. Although the official appetite for treaty reform all but evaporated in the 2010s, the UK’s June 2016 vote to quit the EU raised the hopes for further changes. The end of the 2010s and into the 2020s saw Brexit being negotiated within the terms of the Treaty of European Union the EU’s treaty agreeing measures to deal with the Covid-19 pandemic. Calls for treaty revision continued but active steps to re-negotiate the consolidated treaties have not yet begun.
Chapter
Clive Church and David Phinnemore
This chapter explores the emergence and implementation of the Treaty of Lisbon. Its origins lie in the Constitutional Treaty of 2004 and its rejection in the French and Dutch referendums of 2005, which led to a period of so-called reflection. Then, mainly under the German Council presidency of early 2007, there was an emphatic drive to produce not a constitution, but an orthodox amending treaty to carry forward the basic reforms of the Constitutional Treaty. A deal was reached in October 2007. However, while parliamentary ratification went successfully, an initial referendum rejection in Ireland in June 2008 cast doubt on the new Treaty’s future. In part, this symbolized a rejection of some elements of the Treaty, but it also owed much to a deeper unease about the EU. Once Irish concerns had been assuaged, a second referendum produced the necessary ‘yes’ to ratification and, following some last-minute concessions to the Czech Republic, the Treaty of Lisbon entered into force on 1 December 2009. Its implementation proceeded relatively smoothly but was complicated by the eurozone crisis, which in turn pushed the EU to pursue some further treaty reform. In the face of increasing Euroscepticism, and persistent question marks over the popular legitimacy of the EU, the appetite for treaty reform all but evaporated for much of the 2010s, even if for integrationists the eurozone crisis demanded further reform. Towards the end of the decade, with Emmanuel Macron as French President calling for a ‘re-founding’ of the EU and the UK negotiating its withdrawal from the EU, opportunities for and some interest in a new round of treaty reform appeared to be emerging.
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This chapter evaluates global governance and how it relates to international law. It addresses the role of international organizations in processes of global governance, charting their rise from the nineteenth century onwards. Two international organizations exemplify semi-legalized governance beyond the state: the United Nations and the European Union. Sovereign states, of course, continue to play a central role in the institutions, processes, and mechanisms of global governance. The chapter then explores the extent to which a state’s power, influence, and legitimacy are affected by factors such as its domestic political arrangements and its adherence to the liberal, Western values that underpin the postwar order. It also assesses whether the proliferation of legalized and semi-legalized global governance regimes amounts to a constitutionalization of international relations.
