Before offering a normative reading of the European constitutional architecture, I want to tweak some of the premises on which the constitutional debate is typically premised. The following parable is offered with this purpose in mind.
There is an inevitable and scary moment in the growing up of an observant Jew and in the raising of religiously observant children. In a religion the constitutive and defining feature of which is Nomos-the Law-and which has no theology, there is no easy answer to the inevitable question: why observe this law? The Pauline antinomian revolution derives from a failure to find a convincing justification for submission to Nomos. To the skeptical reader one may point out that a similar question may be asked regarding submission and loyalty to a constitution.
The simplest, and deepest, answer is rooted in covenant and in the authority-and the Author-whence Nomos derives. But submission and obedience to God surely do not exhaust the significance of a Nomos-based life. One intriguing reply, given by the polymath philosopher Isaiah Leibowitz,15 is relevant to our current discussions of European constitutionalism.
Take the core set of ritualistic observances: kosher laws, Sabbath laws, and the laws of purity in sexual relations. They are the core set because they affect the three central features of our mundane existence: eating, working, loving. Living by Nomos means a submission to a set of constraints in all these areas. The constraints are designed in such a way that they cannot be explained in rational utilitarian terms. Kosher rules actually exclude some of the healthiest foods; the Sabbath rules have a niggardly quality to them that militates, in some respects, against a vision of rest and spirituality; and the ritualistic laws of purity, involving the messy subject of menstruation and sexual abstention, have arbitrary elements galore. It is, indeed, as if they were designed to force the observer into pure and mindless obedience and submission. One observes for no other reason than having been commanded. No wonder Paul16 shrug off this yoke.
There is, however, an interesting paradox in this submission which orthodox Judaism as well as several strands of Islam share. Total obedience and submission are to a transcendent authority which is not of this world. In that very act of submission is encapsulated an emancipation and liberation from any authority of this world. By enslaving oneself to an authority outside of this world, one declares an independence of, and refusal to submit-in the ultimate sense-to, any authority of this world. By abstaining from eating everything that one fancies, one liberates oneself from that powerful part of our physical existence. By arranging life so as not to work on the Sabbath, one subjugates the even more powerful call of career and the workplace. And by refraining from sexual abandon, even if loving, even if within wedlock, one asserts a measure of independence even over that exquisite part of our lives too. Isaiah Berlin, a town mate, friend, and admirer of Isaiah Leibowitz gives the secular equivalent to this insight in his discussion of rational liberty.
There are three relevant lessons to the constitutional and European discourse from this parable.
The first: an act of submission can often be simultaneously an act of emancipation and liberation.
The second: as Aristotle teaches us, virtue is a habit of the soul and habits are instilled by practice.
The third: the purpose of obeying the law is not co-terminous with the consequences of obeying the law. One may obey to submit to the author of the Command. A consequence, not a purpose, may be emancipation.
Let us see now how these play out in the normative understanding of European constitutionalism.
15 Y.Leibowitz, Judaism, Human Values and the Jewish State (Cambridge, MA, Harvard University Press, 1992) passim.
16 St Paul needs no citation. But for a somewhat troubling latter-day reincarnation of this aspect of Pauline dogma, cf. R. M. Unger, What Should Legal Analysis Become? (London, New York, Verso, 1996) at 186 et seq.