Εθνικό Σύνταγμα και Κοινοτικό Δίκαιο: το ζήτημα της 'υπεροχής' (μονογραφία) Αθήνα-Κομοτηνή: εκδ. Σάκκουλα 2009 [National Constitution and Community Law: the Question of ‘Supremacy’ (in Greek)]
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Victims of government-sponsored lawlessness have come to dread the word "federalism." Whether emblazoned on the simple banner of "Our Federalism"' or invoked in some grander phrase, the word is now regularly deployed to thwart full remedies for violations of constitutional rights. Consider, for example, the Burger Court. Rallying under flags of federalism, the Justices pushed back remedies for segregation in public schools, denied relief to citizens threatened by racially discriminatory police brutality, cut back federal habeas corpus for state prisoners convicted in tainted trials, and forced lower federal courts to dismiss a broad range of suits challenging unconstitutional state conduct.
After the Maastricht and Amsterdam Conferences the European Union can no longer be conceived as an intergovernmental arrangement: It is a polity founded on an “overlapping consensus.” Consequently, to reconstruct the relations between national and Community law, legal monism does not work, neither in its statist, nor in its international version: Legal pluralism is needed, not in a sociological-descriptive sense, but as a normative criterion by which a judge (and a citizen) must refer to many and various sources of law to settle a dispute. Legal pluralism, however, can operate only under a rule of recognition: a common normative framework within which a reasonable number of sources can be handled. What Europe needs, therefore, is an interactionist constitution, which should emerge through an “open-ended”discursive process.
The concept of sovereignty is today seriously challenged. Contemporary critics of sovereignty have focused on its hierarchical, unitary, discretionary, and arbitrary attributes. Hence, sovereign power is treated as anachronistic and dangerous, the cause of the many wrongs that have marked modern politics. This paper seeks to defend the notion and practice of sovereignty as inherently democratic. The argument begins with and relies on the historical observation that the idea of sovereignty as supreme command corresponds to merely one definition among several to be proposed and acted on in the long history of this term. An alternative definition can be traced to the writings of several modern political and constitutional thinkers, for whom sovereignty was understood not as the ultimate coercive power of command but instead as the power to found, to posit, to constitute, that is, as a constituting power. It is this alternative conceptualization of the sovereign as constituent power that this article excavates and recovers as a more attractive and relevant form of popular sovereignty, more attuned to the emancipatory and egalitarian promises of a normative theory of democracy.
One of the core constitutional questions for national constitutional courts in the EU in the past decades has been whether to accept the claim made by the Court of Justice that EU law is the supreme law of the land, taking primacy even over conflicting national constitutional provisions. With the inclusion in the recently adopted Constitutional Treaty of a clause explicitly confirming the 'primacy of EU Law' appearances suggest that the EU is about to establish a characteristic of mature, vertically integrated, federal states such as the USA. This article argues that this view is mistaken. It develops a comprehensive jurisprudential framework for addressing constitutional conflicts, 'Constitutionalism Beyond the State' (CBC). CBS detaches the discussion of supremacy and constitutional conflict from a statist framework; provides a jurisprudential account that explains and justifies the highly differentiated, context-sensitive and dynamic set of conflict rules that national courts have in the past adopted; and provides the lacking theoretical basis for the more attractive, but undertheorised sui generis accounts of European constitutional practice that have recently gained ground in the literature. CBS provides a jurisprudentially grounded reconstructive account of why the issue of constitutional conflict is as rich and complicated in Europe as it is and why it is likely to remain so even if the Constitutional Treaty is ratified. The article then goes on to make concrete proposals addressed to national constitutional courts and the Court of Justice respectively about how, in application of the developed approach, constitutional conflicts ought to be addressed doctrinally. It includes a proposal to read the new 'constitutional identity' clause as authorising Member States as a matter of EU Law to set aside EU Law on constitutional grounds under certain circumstances.
Constitutional discourse has perhaps never been more popular, nor more comprehensively challenged than it is today. The development of new constitutional settlements and languages at state and post-state level has to be balanced against the deepening of a formidable range of sceptical attitudes. These include the claim that constitutionalism remains too state-centered, overstates its capacity to shape political community, exhibits an inherent normative bias against social developments associated with the politics of difference, provides a language easily susceptible to ideological manipulation and, that, consequent upon these challenges, it increasingly represents a fractured and debased conceptual currency. A rehabilitated language of constitutionalism would meet these challenges through a version of constitutional pluralism. Constitutional pluralism recognises that in the post-Westphalian world there exists a range of different constitutional sites and processes configured in a heterarchical rather than a hierarchical pattern, and seeks to develop a number of empirical indices and normative criteria which allow us to understand this emerging configuration and assess the legitimacy of its development.
This article uses Hans Kelsen's theory of a legalsystem to take a fresh look at European Community law,and the relationship between the European Community,its Member States, and international law. It arguesthat the basis of the Community's legal legitimacy isindeterminate, and offers a model to accommodate thatindeterminacy. This model is founded on aconstructivist approach suggested to be particularlyuseful in the EC context. Using this approach, it isargued that the concepts of system, autonomy andsovereignty in the Community can only be understoodthrough the recognition of a plurality of viewpoints,and that it is crucial, in describing the Community,to distinguish between a concept per se and thechoice to adopt that concept.