Is this a Constitution? Remarks on a Contested Concept

Griller, Stefan

doi:10.1007/978-3-211-09429-7_2

Cited by 5 publications

(7 citation statements)

References 17 publications

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“…Riekmann notes the continuation of the social contract tradition in the Lisbon Treaty and believes that the Treaty possesses all key characteristics of a constitution by regulating the relations between the state authorities and people, dividing the power among institutions, respecting the rights of citizens, etc (Ciongaru, 2017). With reference to the thin and thick constitution concepts, Griller states that currently the European Union has a constitution, and this constitution is based on not only thin but also thick definition (Griller, 2008). According to the definition of a (thick) constitution provided by J. Raz, the first characteristic is being "constitutive" which refers to the fact that a constitution forms a political and legal system of the state (Reh, 2009).…”

Section: Institutional Provisions Of the Lisbon Treaty -How Does The ...mentioning

confidence: 99%

Analysis of the Lisbon Treaty: How Does the Lisbon Treaty Reform Eu Institutions

Haziyev

2024

SCIENTIFIC WORK

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The signing of the Lisbon Treaty is indeed a vital event for the European Union, main international actors and global powers. This article focuses on the main institutional changes of the EU after the entry into force of the Lisbon Treaty. In the first part the article will provide a general background of the Treaty. The second part is devoted to the consideration of the Institutional provisions of the document. Furthermore, the article will explain the main interconnections among institutions. In the third section, the institutional part of the treaty in terms of constitutionality will be analyzed and a question whether the Lisbon Treaty can be characterized as a constitution will be answered. To achieve this, the article will assess the relevance of the Treaty with the "thin" and "thick" constitution concepts.

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Section: Institutional Provisions Of the Lisbon Treaty -How Does The ...mentioning

confidence: 99%

Analysis of the Lisbon Treaty: How Does the Lisbon Treaty Reform Eu Institutions

Haziyev

2024

SCIENTIFIC WORK

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“…39 And, despite the failure of the project of Constitutional Treaty, the case law of the ECJ has continued to provide support for this reading. 40 At the same time, also the ECHR has been more and more the object of constitutionalist interpretations, aimed at emphasizing the features of the ECtHR as a constitutional court. 41 Yet, the discourse of international constitutionalism has not stopped at Europe's edges.…”

Section: An Overview Of the Literaturementioning

confidence: 99%

The Constitutionalization of International Law: A Comparative Federal Perspective

Fabbrini

2015

SSRN Journal

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During the last two decades, extraordinary legal developments have taken place at the regional and global level, as the world of international law has become inhabited by a growing number of organizations designed to govern phenomena cutting across state borders and affecting the life and wealth of individuals world-wide. This evolving reality has challenged traditional understandings of international law and increasingly scholars have resorted to the language of constitutionalism to describe the variety of regimes that by now exist beyond the states. The purpose of this essay is to discuss how comparative law can inform the discussion about the alleged constitutionalization of international law and provide insights to understand several features of the structure, functioning and finality of global governance institutions. In particular, the essay argues that a comparative analysis, grounded on historical studies, of experiences of federal governance offers a valuable perspective to analyse the phenomena of transnational governance and suggests that steps should be made to re-evaluate a long thread of legal practice and political thought that, from Althusius to the Federalist Papers, has offered original models and ideas to conceptualize constitutional regimes which were neither national nor international, but rather a mixture of both. Comparative federalism can today supply a rewarding framework to explain the developments occurring on a global scale. Indicating the path for future scholarly research in the field, the essay begins exploring the mysteries of global governance through the prism of federalism, identifies three recurrent features of transnational constitutional regimes -pluralism, subsidiarity and liberty -and underlines how these find correspondence in the experiments of federal governance of the past. VOLUME 6 EJLS ISSUE 2

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“…5 The idea of constitutionalisation of European law as an emerging and on-going process was first noticed and described by an outsider, Professor Eric Stein from Michigan, who elegantly characterised the process with this famous phrase: "Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe." 6 The re-launch of the integration project in the mid 1980s implied that also political actors -the institutions, Member States, lobbies and emerging European political parties -started to understand and debate in constitutional terms the developments expressed under headings such as "deepening of integration", "institutional reform", "democratic deficit", or "Europe of citizens". At the political level, this led to a succession of treaty reforms, starting from the Single European Act and ending, so far, in the Lisbon Treaty.…”

Section: Three Dimensions Of the Constitutionalisation Of The Europeamentioning

confidence: 99%

“…12 See e.g. Griller [6], p. 29. by enactments of a lower hierarchical rank. Typical examples of this are the rules of procedure of the EU institutions.…”

Section: Three Dimensions Of the Constitutionalisation Of The Europeamentioning

confidence: 99%

“…In academic doctrine and judicial decision-making the role of the elements belonging to a non-momentary legal system relates to justification of interpretations of legal 27 Griller rightly notes that the issue of Kompetenz-Kompetenz is not decisive as to the statehood of the EU because the crucial question is self determination in relation to other states, not how the constitutive power is distributed within the EU, Griller [6], pp. 37-39.…”

Section: Primacy Vs Sovereignty -The Fundamental (Non-)issue?mentioning

confidence: 99%

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Constitutions in the European Union – Some Questions of Conflict and Convergence

Jääskinen

2011

ERA Forum

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The author explores two aspects of the relationship between the "constitution" of the EU and member states' constitutions -their potential for conflict, and possible elements of structural convergence. He considers the "constitutionalisation" of the EU as a starting point, as an on-going process, and as a desired result. The development of an autonomous institutional structure of the EU since the 1980s is presented, preliminarily culminating, after the failure of the Constitutional Treaty, in the explicitly non-statelike concept of the Lisbon Treaty. The author discusses the notion of "constitution" in a number of senses -formal vs. material, static vs. functional etc., and concludes that the potential conflict between the autonomy of EU law and the sovereignty of Member States is existential and cannot be resolved by legal means, which puts the national judge under a permanent challenge as he is obliged to serve two masters, EU law and national law. However, there is room for constructive coexistence of the two legal orders, and if considered as "non-momentary" constitutional systems "without an a priori claim of logical consistency" there is scope for mutual interaction -be it in a positive, "cross-fertilising", or a negative, intruding way, and even convergence.

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Is this a Constitution? Remarks on a Contested Concept

Cited by 5 publications

References 17 publications

Analysis of the Lisbon Treaty: How Does the Lisbon Treaty Reform Eu Institutions

Analysis of the Lisbon Treaty: How Does the Lisbon Treaty Reform Eu Institutions

The Constitutionalization of International Law: A Comparative Federal Perspective

Constitutions in the European Union – Some Questions of Conflict and Convergence

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