by Neil Walker, Jo Shaw and Stephen Tierney (eds.).Oxford and Portland, Oregon: Hart Publishing, 2011. 404pp. Hardcover $124.00. ISBN-10: 1841139793.
Reviewed by Mihaela Serban, School of Social Science and Human Services, Ramapo College of New Jersey. Email: mserban [at] ramapo.edu.
In the crowded field of European studies, this edited volume stands out as an illustration of constitutional pluralism in the pan-European area. The volume is the outcome of an extended seminar series held at Edinburgh Law School in 2008-2009, which attempted to go beyond the usual focus on the European Union to explore the overlapping networks of constitutional authority within the entire European legal space. Three key features set it apart: its pluralist approach, specifically the concept of nested national, transnational and supranational constitutional structures characterized by multiple sources of normativity and conflicts for centrality (Shaw, p.139); its public law, legal theory and political science perspectives; and its pan-European scope. The volume belongs to a relatively recent body of literature that merges the legal pluralist framework with legal globalization, public international law, and constitutional law.
The editors – all from the University of Edinburgh – brought together eleven authors from across the Western part of the continent, most of them public law and legal theory experts, with two political science voices. The volume – at a hefty 400 pages – is divided into six parts and 13 chapters (two chapters per part), with an introduction but no conclusion. The six parts focus on EU’s constitutional dimensions, the European Convention on Human Rights (ECHR), the wider Europe, Europe below the state, Europe and the world, and case studies (criminal law and labor law).
The Introduction, written by two of the editors, Neil Walker and Stephen Tierney, builds upon the authors’ earlier work on constitutionalism and pluralism and is the key to understanding the value added by this book. The starting point is well known by now: the failure of the European constitution, the adoption of the Treaty of Lisbon, all within the larger context of post-national constitution-building and constitution-branding. The premise of the book is that an exclusive focus on the EU offers an incomplete picture of current constitutional developments across the continent. Understanding Europe’s present and future includes an exploration of other normative threads as well, primarily the relationship with the Council of Europe and developments at the substate and transnational levels. The volume aims to paint a better picture of Europe as a “more complex, fluid and multi-dimensional category” embedded in “dense networks of legal authority within and beyond the continent” (p.3), and away from state-centered constitutionalism. The metaphor that captures this category is “constitutional mosaic,” where the focus is not on traditional or contemporary theories of constitutionalism, but on a [*55] “constitutional mode of analysis” (p.7). The mosaic’s representational and visual aspects contain an element of “thick description” that captures the current moment of European transformation. Walker and Tierney identify four key features of this constitutional mosaic: it is based on plurality rather than singularity, diversity rather than uniformity, heterarchy rather than hierarchy, and fluidity rather than fixity (p.9). The major challenges raised by the constitutional mosaic include authority, legitimacy, identity, and contestability.
The first part focuses on the EU, specifically its constitutional dimensions and the relationship between the EU and its member states. In chapter 2, Cormac Mac Amhlaigh discusses the three main trends within the EU constitutionalist discourse – legalist, neo-republican, and processual. He argues that all three fail to recognize explicitly the essential signifier of the constitutional idea – sovereignty – and that a sovereignty-based conception of EU constitutionalism provides a better picture of the EU, because it is sovereignty that keeps the European constitutional mosaic in place. He locates sovereignty claims in the early judgments of the European Court of Justice. In chapter 3, Julio Baquero Cruz explores three predominant narratives charting the relationship between the EU and member states’ constitutional orders: state-centered, integrationist (“think European”), and pluralist, and finds all three problematic. Instead, he proposes a theory of institutional disobedience to complement integrationist approaches (following Rawls’ definition of civil disobedience), as a way of mitigating the biggest issues in EU-state relations.
Part two, the European Convention on Human Rights, has a more radical start. In chapter 4, Andrew Williams contends that the European Convention on Human Rights is a conceptual and practical failure, a “partial instrument with partial application” (p.93), rather than the jewel in the continent’s human rights crown. Bad decisions (e.g. N. v. the United Kingdom) simply underscore these failures, and the only way out is a merger between the EU and the ECHR systems, leading up to the EU as the main human rights jurisdiction for the continent. In a complementary chapter, Sionaidh Douglas-Scott compares the EU and the ECHR human rights systems, identifying three key difficulties: overlapping jurisdictions, segmented authority, and human rights competition. Unlike Williams, however, she thinks that the ECHR system can be saved, specifically that human rights could play a constitutional role for Europe and that the European Court of Human Rights could be a constitutional court through its expanded pilot judgments.
In part three (The Wider Europe), Jo Shaw provides an overview of the citizenship regimes in the former Yugoslavian states at the intersection of state-building and EU accession. She is primarily interested in the impact of legal norms and the operation of law, and in the extent to which changes within the EU and to the EU matter. Gwendolyn Sasse’s focus is on the other main transnational actor in the European space, the Council of Europe. She sees the Council as a norm entrepreneur that is weak institutionally, particularly as a norm enforcer, yet has significant [*56] potential as a norm producer and developer because of its institutional flexibility, capacity for innovation and normative coherence, resilience and ability to play the long game.
The focus in part four is at the sub-state level. In chapter 8, Hans Lindahl starts by asking to what extent the normative idea of reciprocity or mutual recognition between equal but different groups under a single constitution succeeds in reconciling political plurality and legal unity in the face of strong group claims to cultural distinctness (p.205-6). He looks at models of politico-legal reciprocity, the example of Quebec Secession Reference, and proposes his own solution – para-constitutionality – “a negotiation about the conditions of exit in the form of a double asymmetry that arises as a result of the partial suspension of the constitutional regimentation of reciprocity between the negotiating parties” (p.228). In the next chapter, Ferran Requejo analyzes from a political theory perspective political models for coexistence in composite states –cultural and national pluralism in liberal democracies. He finds classic solutions for accommodating plurinational societies – federalism, consociationalism and secession – wanting, and proposes instead plurinational federal models and partnership models to solve differences within constitutional singularities.
Moving outside Europe in part five, Anne Peters discusses the constitutionalization of international organizations, specifically the European Union, the World Trade Organization, and the United Nations in terms of autonomy, sovereignty, rights, rule of law, democracy, solidarity, and legal and political accountability. She characterizes the EU as a “constitutional and constitutionalist system” within a system of global constitutionalism which is multilevel and nested, rather than hierarchical and monolithic, and is bound together by shared constitutional values, including parliamentary democracy. In the next chapter, Jan Klabbers explores the internal dynamic of this global constitutionalism, in particular the secondary rules regulating conflict between treaties with reference to the EU. His question is whether the EU is a legal order open to contact with international law, and his brief answer is no: The position of the EU in the global legal order is determined by the European Court of Justice (ECJ), and the ECJ is primarily concerned with the unity of EU law, rather than upholding the international legal order. Consequently, the “ECJ invariably protects its own brand of constitutionalism. It does so by building a wall around the EU legal order.” While he sees some possibilities for solving this problem, Klabbers ultimately relies upon common extra-legal virtues, a “virtue jurisprudence” based on honesty, humility and seeing the bigger picture (p.307).
The two case studies are relegated to part six. Kimmo Nuotio’s focus is on the EU’s criminal legal order from the point of view of its legitimacy conditions and justification. He explores the mutual interdependence of European criminal and constitutional law, and the need for normative legitimacy of European criminal law as transnational criminal law. Ruth Dukes takes a more pessimistic view of European labor law. She sees labor law as having a constitutional function in the sense of [*57] establishing a particular social and economic order, constrained by the broader constitutional context (the potential of law to restrain employers through collective bargaining). The main constraint in the EU context is the goal of market integration and the constitutional priority of economic freedoms. In addition, labor law is marginal at the European level, as the national level remains the dominant site of political decision-making for the foreseeable future.
The main strength of this volume lies in the explanatory power of the constitutional mosaic metaphor, the explicit effort to look at the EU and beyond through a constitutional pluralist lens and construct a coherent vision for Europe’s present and future. The chapters are primarily meant to bolster the constitutional pluralist framework, and many of them do engage with each other and with the overall theme, in particular chapters within each section. The pluralist framework accommodates well questions about the growing pains of the EU, legitimacy and fragmentation, creation of a polity, judicial power, and other traditional constitutional issues. However, like all pluralist endeavors, it can be somewhat descriptive and avoids answering hard questions, such as the concept of law emerging from these transformations, the extent to which radically disconnecting the concept of law from the state alters both, the changing role of the state and the shape of the emerging structures and relations of power, and legal validity and legitimacy.
The weakness of this project, however, is that it cannot escape the curse of the edited volume: it is an uneven book, where the main point is exemplified much better in the first half of the book, slowly dissipates towards the middle, and picks up some steam again with the case studies. Playing to varied readers has its drawbacks: the chapters need to support the main argument, yet they also have their own flavor and address their own, distinct audiences (e.g. human rights specialists). Some chapters are overly descriptive, while others are somewhat disconnected from the main point (e.g. chapters 8 and 9). The volume is better understood as a multidisciplinary, rather than interdisciplinary enterprise. As a minor point, it would have been helpful to include a list of authors, and to address, even in passing, some smaller issues (such as what exactly counts as Europe, and to what extent a pan-European vision challenges EU-centrism).
Overall, the volume clearly contributes to the ongoing debate regarding the contributions of a legal pluralist framework in constitutional and global contexts, and as such it has a solid scholarly audience and it is most suited for teaching at the graduate level in political science and law.
Case of N. v. The United Kingdom, 26565/05, 27/05/2008
Copyright 2013 by the author, Mihaela Serban.