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Contested constitutional concepts : state, constitution, sovereignty in Germany and the United Kingdom, and the European challenge
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Florence : European University Institute, 2005
EUI; LAW; PhD Thesis
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MURKENS, Jo Eric Khushal, Contested constitutional concepts : state, constitution, sovereignty in Germany and the United Kingdom, and the European challenge, Florence : European University Institute, 2005, EUI, LAW, PhD Thesis - https://hdl.handle.net/1814/4721
Abstract
The European constitutional process cannot be understood accurately without understanding the assumptions that underlie the constitutional concepts which are used by national actors to make sense of that process. The present inquiry offers an alternative perspective on European constitutionalism. It does so not by analysing the relationship between the European legal order and the national constitutional orders in legalistic terms (as an irreconcilable clash between two discrete and rival claims to autonomy, integrity and / supremacy), but by constructing a framework of the assumptions that define certain key, yet contested, constitutional concepts. This method opens legal discourse up to a sociological understanding of constitutional law (by taking the position of national legal actors into account), and relates it to categories of political power without conceding the importance of and the need for a legal analysis of European constitutionalism. The analysis of European constitutionalism is, of course, familiar territory and is dominated by a number of approaches. The first is a doctrinal legalistic approach that focuses on the reception and implementation of Community law by national legal systems. It acknowledges tensions and discontinuities between the national and European legal orders, by analysing the legal limits of European integration set by national courts in "constitutional dialogue" (Stone Sweet 1998: 305) with the European Court of Justice. This approach trawls through existing law in search of underlying principles and structures to accommodate Community law. In other words, it assumes the capacity of the legal orders to find a legal solution to conflicts of law stemming from the relationship between the national and European orders. But it tends to view national legal systems as coherent units and base the analysis of law on formal doctrine and case law. This approach ignores or minimises sociological aspects (the existence of diverse national legal traditions) as well as political aspects (the proximity and susceptibility of constitutional law to political power).
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Defence date: 24 September 2005
Examining board: Prof. Neil Walker, European University Institute (supervisor) ; Prof. Bruno De Witte, European University Institute ; Prof. Carol Harlow, London School of Economics and Political Science ; Prof. Stefan Oeter, University of Hamburg
PDF of thesis uploaded from the Library digitised archive of EUI PhD theses completed between 2013 and 2017
Examining board: Prof. Neil Walker, European University Institute (supervisor) ; Prof. Bruno De Witte, European University Institute ; Prof. Carol Harlow, London School of Economics and Political Science ; Prof. Stefan Oeter, University of Hamburg
PDF of thesis uploaded from the Library digitised archive of EUI PhD theses completed between 2013 and 2017