Anneli Albi

The role of national constitutions in European and global governance

The aim of the project is to revisit what is, and ought to be, the role of national constitutions at a time when decision-making has increasingly shifted to the EU and global level. In mainstream discourses, national constitutions have been reduced to the notions of sovereignty, national constitutional identity, and idiosyncrasy. This project sought to gauge how Member States have addressed the tensions that EU law has caused to substantive constitutional values, such as fundamental rights, the rule of law, democracy, and the social state, e.g. in the adjudication of legal challenges to the European Arrest Warrant, the EU Data Retention Directive, and the EU and IMF austerity and conditionality measures. These themes were analysed by constitutional law experts in 29 countries in national reports, published open access in the two-volume book National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law.

Result

A realisation gradually occurred that there has been an ongoing Kuhnian paradigm shift from classical European constitutional law to autonomous EU governance, which is predicated on new ideologies for the exercise of public power, such as neofunctionalism and neoliberalism. There have been two parallel epistemic communities – the classical constitutional law communities and the EU governance communities – who have for a long time been “talking past each other”.

The paradigm shift was articulated in an article in Juridica International, with a focus on explaining the shift in the role of courts from judicial protection to trust and efficiency. The paradigm shift means a profound change in how we are governed, and is in need of broad-based scholarly and public discussion. Prof. Albi has suggested that we ought to remain in the paradigm of classical European constitutionalism, and that national constitutional orders ought to continue to exist. The changes entailed by the paradigm shift will be explored in two forthcoming comparative monographs.

Impact

The project has sparked considerable interest and has led to a wider recognition that EU law, which has been presumed to be more progressive, has also caused wide-ranging adverse effects ‘on the ground’ in the Member States, which are in need of discussion. For a wider discussion to be possible, there is a need for a formal acknowledgment of the existence of structural issues in EU research.

In order to address the structural issues, it would be helpful if national scientific funding councils and national Academies of Science could make available co-ordinated funding for critical and comparative research on the EU. There is a pressing need for high-profile comparative European law journals and book series that would publish research of scholars who work predominantly in national legal systems and in national languages. An alarming degree of knowledge about advanced continental European legal systems has been lost through the shift to autonomous, self-referential EU law, as well as through Englishisation and the shift to Anglo-American legal thinking.