ABSTRACT
As Harald Laski, writing in the 1930s, cogently reminds us, there is nothing new under the sun. The underlying conundrum that characterises the attempt to identify an appropriate ‘constitution’ for on-going European integration processes is not a novel one. The Sisyphus-like effort to distinguish the norms that might capture and effectively govern the constantly evolving institutions of post-national governance should thus not simply be understood as one final effort to establish a cosmopolitan legal (regional) order – or, as an act taken in defiance of Grotius and his ancient stipulation that, since sovereignty stems from the nation state, no higher (sovereign) order might ever (logically) be placed above national law. Instead, the troubled process of the constitutionalisation of Europe is, also, just one further manifestation of the constant historical struggle to bring transcendental law and its formal categorisations into line with an ‘actual world’ in which abstract ideals of human governance are very quickly superseded by the realities of social, economic and political operation. An ostensibly sui generis process, European integration – the taming of the international state of nature, or juridification of the ‘law gap’ that dominates between sovereign states – is not only characterised by, but, instead, also revealingly intensifies the age-old tension that exists between the legal imperative for abstract, self-isolating and self-legitimating categorisation (formal rationality) and the wider demand that law should be embedded within and adequately reflect the society which it purports to govern (legal materialisation).
