RICERCA ITALIANA     

Legal culture, democracy, and constitutionalism in Europe

Università degli Studi di Genova

Abstract

The tangled, paramount, issues of fundamental rights, the rule of law, constitutionalism, and democracy will be explored by the seven Units from several perspectives, united by a common, basic, subject-matter: the current process of European integration and constitution-making, in the light of its history and the legal culture into which it developed. Through a set of inquiries, ranging from political and moral philosophy to the technicalities of the theory of legal reasoning and interpretation, the following results are expected:
1) an analysis of the concept of "multilevel constitutionalism", purporting to verify, (a) its ability to account for the present institutional structure of the UE and its relationships with the several member States; and (b) its ability to work as a normative concept with regard to the protection of fundamental rights and the establishment of a democratic form of government;
2) an analysis of a few basic concepts of modern constitutional theory as related to the processes of supernational integration, i.e.: legality and legitimacy, rule of law, the public / private distinction, the unalienability of the protection of fundamental rights, the ability of a constitution to work as an effective power-checking device;
3) an analysis of the relationships between constitutionalism and democracy, both from a legal-theoretical perspective, and from the viewpoint of the peculiarities of the European integration process;
4) a >>>

Principal Investigator

Riccardo GUASTINI Università degli Studi di GENOVA

Research Objectives

The current stage in the European constitutional process has fueled public debates over the so-called "democratic deficit" of the European Union. The Declaration of the European Council at Laeken, on December 2001, pointed at a "democratic challenge for Europe" and, in order to promote people's involvement in the process, has established a Convention , to work out a Constitutional Bill for the EU. However, the issues related to the making of a European constitution and European "integration" go well beyond the borders of official debates and institutional processes: for the success of those very processes also depends, in a substantive way, on a reasoned elaboration of those very issues by competent scholars, paying due attention to the institutional engineering of European governance, with special care for a thoroughly democratic , participatory, Constitution. Such a need for careful scholarly analysis and elaboration is the leading underpinning of the present research program on "Legal culture, democracy, and constitutionalism in Europe": a program that aims at providing an overall inquiry on the European constitutional process, from several different, though related, perspectives (history of legal culture, legal sociology, legal theory, political philosophy); a program which should produce useful outcomes at several levels of interest: from the more abstract and general ones of the legal theorist and political philosopher, to the daily concerns of the current political >>>

First Results

The partial outcomes which are expected from the accomplishment of Stage 1 of the reaserch are as follows.
1) The Unit of Salerno expects the following, partial, results: a critical reconstruction of Habermas's theory, by means of which to show the ways to prevent the "neutralization" of democratic policy. A seminar will be organized to check the outcomes in a public debate and a first series of paper shall be published.
2) The Unit of Genoa expects the following, partial, results: (a) bringing to light the transition from a "conceptualistic" style of legal reasoning to a new one, centered on the substantive principles of european integration; (b) pointing out the basic juristic tools (like overinterpretation and judicial dialogue) by means of which state constitutional law and european law worked out a set of "common principles"; (c) making an analytical comparison between the interpretive techniques employed by the EU Court of Justice and the National courts, respectively, with an eye to ascertaining whether there is any specificity in the interpretation of the european law; (d) checking whether the traditional ideas of a "system of legal sources", "hierarchy" and "competence" are still useful to depict the present situation of european law/member states' law; (e) checking how the present "system of EU law sources", if any, will be affected by the Project of a European Constitution currently going on.
3) The Unit of Trieste expects the following >>>

Timescale

24 months

National and international background

Even though all Western contemporary democracies are constitutional democracies, "constitutionalism" and "democracy" are two concepts theoretically and historically apart. On the one hand, "constitutionalism" represents the ideal of a limited government, where the public power is bound by rules ("rule of law", fundamental rights) and is conferred upon several agencies ("separation of powers"). On the other hand, at least since the French Revolution, "democracy" has for a long time stood for the spooky ideal of an unbound self-government of the political majorities of the day: i.e., of the political representatives elected by the People, and so far as they are elected. The conflict between "democracy" and "constitutionalism" becomes stiftier, the more one endorses a "substantive" conception of democracy, centered on the values of "free domination", " self-determination" by the social body, People's constitution-making power, direct participation to the general will, etc. By contrast, the conflict wanes as soon as one endorses a "formal", or "procedural", conception of democracy, as the set of rules allowing individual citizens to take part to political decision-making at several levels of importance. From this latter viewpoint, constitutionalism and the ideal of a democratic government go necessarily "hand in hand", for the existence of rules and procedures not liable to simple majoritarian changes is regarded as the basic condition for preventing the democratic process from >>>