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Constitutionalism represents a useful focus for debate as it attracts both continuing public attention in the media where there are relatively frequent calls from commentators for a European process of constitution-building (Pernice 1999a; Freedland 1999) and a growing degree of attention across political science and international relations commentary on the EU (insert references). Continuing the cross-disciplinary theme, we investigate in this section how different disciplines address the `touch of stateness' question in the specific context of constitutionalism which has significance both in relation to institution-building and at a more symbolic level. This section provides a general introduction to the more specific assessment of the principle of flexibility as emergent norm in Section IV.
As a concept, the `state' evokes different - but fundamentally complementary - reactions in political scientists and lawyers. For political scientist two aspects are crucial for defining the state. The first aspect is the `Westphalian state' (Caporaso 1996) that had its point of origin in the 1648 Treaty of Westphalia. The subsequently emerging international system of states was structured by mutual acceptance of territorial state borders that mark the limits of foreign intervention other than by force (of war), and the rule of sovereignty became the guiding norm of international politics (Krasner 1995, Lyons and Mastanduno 1995, Chayes and Chayes 1995, Biersteker and Weber 1996, Ferguson and Mansbach 1996). The second reference point equally refers to sovereignty. However, instead of relations between states within the international realm, it has been forged by the citizen-state relation which emerged in the 18th and 19th centuries. Both definitions of the state converge around the familiar Weberian definition of sovereignty, as involving the monopoly of the legitimate use of force within a bounded territory (Weber 1946). States have been perceived as the key actors in world politics, whether in the process of representing interests to the outside, i.e. within the international state system (Morgenthau 1946, Waltz 1979), or to the inside, i.e. representing the constituted power to the constituency.
The assumption of the state as the single most important actor has been challenged, in particular, by processes of globalization in a number of policy areas. While an abundant amount of material has been produced to define, debate and discuss the role and impact of a variety of actors, the role of `the social', emphasized by Max Weber as fundamental for legitimate state politics, has stirred little interest amongst political scientists.4 The tension that has emerged from the process of modern state-building, on the one hand, and the increasing institutionalization of global politics, on the other, brings the Hobbesian dilemma of civilized interstate relations to the fore. Can states be sovereign and still maintain profoundly civilized, that is principled relations without having to succumb to a global Leviathan? This is the larger question which accompanies any discussion of European `stateness'.
For the lawyer the state's systemic character is one issue which comes to the fore - in particular in relation to the constitutional settlement which underpins every modern liberal nation state. The historical and conceptual links that hold together state, constitution and law as a system have proved hard to break and, from time to time, it has been suggested that they should be they have been transferred en masse to the EU (Mancini 1998). The temptation towards this wholehearted embrace of stateness has occurred partly because, in spite of a general intuition that the EU is not a state and never will be a state even though it satisfies basic criteria in relation to territoriality, population and government, legal scholars have struggled to find a convincing alternative vocabulary to express the mixity, `betweenness' or liminality of the EU (Curtin 1996). This is unsurprising if, for example, the starting point for an analysis is the enumeration of different types of legal order. If the starting point for analysis accepts (what are, for these purposes, simplified) Kelsenian positivist precepts that there are essentially two forms of law, namely international law and domestic or municipal law, then the features of the law of the EU must necessarily be observed and described in relation to the (closed) conceptual systems which these types of legal order offer. Moreover, the analysis is predisposed towards a hierarchical conceptualization of the relationships between different legal orders, and diligently though the Court of Justice has pursued its vision of EC law as sui generis and superior in nature to national law, it has never been wholly successful when it comes to persuading national legal actors, especially constitutional courts vested with the specific task of preserving and developing the national constitution, of the appropriateness of that approach. There have been many occasions on which legal scholarship has been caught between the tension of the sui generis nature of the EU (in empirical if not conceptual terms) and the temptation to argue by analogy with established legal and politico-legal categories.
Yet within its own terms, there is no doubt that the European Community, specifically through the agency of the European Court of Justice, has aped stateness, at least in legal terms, because of its strong adherence to the formal properties of the rule of law and the creation of the hard legal core often contrasted with the `soft' political domain. The juridification of intra-Community relationships between institutions and between the institutions and the Member States, as well as the oft-lauded creation of rights which individual private actors can enforce in national courts against Member States and (sometimes) other private actors, have all contributed to that trend. But while the instrumental character of the EU legal order is not in doubt - especially in relation to the concepts of the supremacy and direct effect of EC law - there is a great deal more uncertainty about its systematic character. The lack of systematization of the European Union after Maastricht and now after Amsterdam has often been commented upon (Curtin 1993). This commonsense presupposition about the fragmented nature of the EU as order will be problematized in the discussion of constitutionalism which follows.
Where lawyers and political scientists can most comfortably join debate is in the domain of constitutionalism, and the related notions of constitutional law and the practice of constitutional politics. These figures suggest the possibility of giving simultaneous attention to the need for order (i.e. law) to give a framework to the exercise of political choice and the need for a politics to structure the exercise of formal authority. A crucial tension exists the formal principles or framework of EU constitutionalism, which make the system work in practice, and the abstract qualities associated with a regard for constitutional ideas and practices as the framework for civilized co-existence within polities. At the points of intersection between these formal and abstract aspects, a legal-political approach to constitutionalism borrowing from constructivist methodologies can elucidate both the troubling aspect of applying notions to the EU which are traditionally associated with the state and also its constructive potential in a postnational setting and it is upon that distinction that we must focus.
Applying, for instance, the method of contextualised definition identified in the previous section we can problematize the meanings and languages of constitutionalism in the EU. We can see that both `a constitution' (and, to a more limited extent, the idea of a `need' for such a constitution) and the individual elements which make up this constitution in the formal sense have become crucial shared norms involving the coalescence of law and politics. On the other hand, when constitution-making is under discussion, the language of the `normativity' of such norms is never far away. Thus EU constitutionalism is often seen in normative terms as being about the challenge of designing good institutions for the future Euro-polity. This is normativity in the sense of filling the legitimacy deficit. In that sense, the understandable demand for constitutional formality slips into a rhetoric of seeking the supply of constitutional ideas in order to bring stability and legitimacy to the people which draws instrumentally upon the abstract attractions of constitutionalism as a set of ideas. Seen in this register, constitutionalism for the EU has more than a hint of the `touch of stateness'. It is about identifying a single end-product, and then about naming that end-product according to the conventional toolbox of constitutionalism (liberal, republican, democratic, etc.). In formal legal terms, it is about transgressing but not ultimately transcending the established divide between domestic law in which constitutionalism is a comfortable discourse, and international law which swings between the formal legitimacy offered by the principle of pacta sunt servanda operating between formally equal and sovereign states which holds together the EU from an external perspective and a more base power politics involving realistically unequal relations of political and economic power.
From a constructivist perspective, a more fruitful conceptualization of the emerging EU constitution in this formal sense would concentrate on disaggregating its key elements (Shaw, 2000), with a view to tracking emerging norms and to ascertaining both the embeddedness of norms and their `normativity' in the sense of their claim to authority from political authorities, including the Member States. Aside from the functional provisions on the single market, Economic and Monetary Union, the flanking policies on social affairs, the environment, regional redistribution, etc., and on internal and external security, there are four main groups of provisions within the EU Treaties - buttressed in many cases by case law of the Court of Justice - which sustain a plausible claim to be `constitutional'. There provisions which address the nature of the polity, by proclaiming the existence of the Union, including the constituent Communities and forms of cooperation which comprise the Second and Third Pillars. They are buttressed by basic value statements such as Article 6(1) TEU which commits the EU to the principles of `liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law'. So far as these provisions include also those relating to the possibilities of flexibility and closer cooperation, they often beg as many questions as they answer about the precise nature of the polity. Second are provisions which establish the rule of law and its systemic properties, and which address the authority of the Court of Justice. As a third group, we can bring together provisions regarding the key values, principles and norms within the system, including fundamental rights, non-discrimination and the institutionalization of Union citizenship. Finally, there is an important group of provisions governing the exercise of power within the EU, covering the whole question of competence and the limits upon it. However, these provisions have not come all at once through a single formative constitutional experience for the EU, but have been the result of gradual accretion through the original treaties, amending treaties and their associated intergovernmental conferences, constitutional-type interpretations and rulings by the Court of Justice, and the practices of the institutions and the Member States which have set up many of the constitutional corner stones which are now being increasingly recognised.5
Constitutionalism can be seen as both a risk and a source of revival for the EU. As a practice of polity-formation, for example, constitutionalism is a natural progression for a polity which continues to transgress both the boundaries of the `traditional' international organization and the functional borders of the project of economic integration. The significance of economic integration in the original treaties establishing the European Economic Community was mixed: functionally it was to the fore in the sense that only limited instruments for policy development were given to the new supranational institutions and it represented the focal point of the legally binding and enforceable treaty dispositions (what were, previously, Articles 9, 12, 30, 34 and 36 EEC on the free movement of goods, for example; Poiares Maduro, 1998). Yet in terms of rhetoric, economic integration took its place from the very beginning alongside a more ambitious if vague project for the `ever closer union of the peoples of Europe' (per the Preamble to the EEC Treaty, for example). In practice, it was the project of market-making which decisively relaunched what we now know as the European Union from the mid-1980s onwards, with the single market program, the planning and gradual achievement of Economic and Monetary Union, and the politico-economic project of Enlargement after 1989.
Explanations of these outcomes have commonly focused upon the balance of causes: autonomous institutional driving force deriving support from the logic of policy spillover, or (rational) choice of the Member States. Michelle Everson has argued that market making has in fact unleashed a set of private as well as public national and Community interests which compete for prominence at the EU level. These interests have been propelled in the first instance by a fundamentally neo-liberal program, but this is a program which has subsequently been gradually `socialized' over the years (Everson 1998). Constitutionalism - or, a set of choices about the formal underpinnings of the polity and the societal bargains upon which those choices are based - is, on that reading, part of a sequence of market-oriented polity formation, capable of explanation using either of the standard toolkits of European integration studies, viz. neo-functionalism and intergovernmentalism, but one which, we would argue, reveals its paradoxical nature most clearly when subject to constructivist analysis. For that analysis allows us to make a specifically legal-political analysis. For when the emphasis is upon the significance of constitutionalism as a question of legal order a different perspective emerges.
Constitutionalism gives meaning to the idea of the EU as a `community of law', as its most visible sign is the role of the European Court of Justice in `constitutionalizing' the legal order. As Kenneth Armstrong has argued, the idea of the `constitutionalized treaty' is one of the most powerful instrumental images within EC law (Armstrong 1998: 161). This is the most important facet of the formal elements of EU constitutionalism sketched above. But what, in fact, the Court has done is first and foremost to establish the federal character of the EU legal order by creating an explicit hierarchy between EC law and national law, which has involved EC law becoming part of national law and taking precedence over national law. Remedies in national courts are guaranteed for aggrieved individuals on the basis of this dogmatic system It has then buttressed the near-state nature of the EU by finding that the European Community - at least - holds `sovereign powers' (not sovereignty as such), powers which are both limited in nature but also increasing by incremental steps both as a result of further transfers by means of Treaty fiat and as a result of teleological interpretations of those powers by the Court itself and its application of the principle of implied powers.6 Constitutionalism in this sense comes tantalizingly close to an ideal closely related to a formalized notion of the rule of law which offers a commonsense goal which many observers and commentators find it easy to accept that the EU should aspire to in so far as it represents a common endeavor of a collectivity of liberal states. That is, constitutionalism as a frame of reference for analysis beckons suggestively towards a normative discourse for the future of the EU in an evolving world of liberal states and even liberal post-state and postnational polities. This is a discourse which underpins implicitly much legal commentary on the EU and its legal order. It is a discourse which reveals, once again, the touch of stateness.
However, the contribution of a constructivist analysis is not limited to uncovering these touches of stateness in so much analysis of constitutionalism. It can also contribute to a legal-political understanding of EU constitutionalism based on shifting definitions and emerging norms. For example, an interesting question is whether the discourses of the constitutionalized treaty, and indeed the socialized market, are confined to describing and evoking a constitutionalism of the European Community, paying insufficient attention to the additional challenges of considering the European Union as a proto constitutional order. This is another example of seeking to define the EU's constitutional framework. Since the Treaty of Maastricht (and continuing after the Treaty of Amsterdam), an important and sophisticated debate has been enjoined amongst lawyers about how to characterize the EU in legal terms, in particular its relationship with the established legal entity of the European Community (von Bogdandy and Nettesheim 1996; Dörr 1995; Pernice 1998, 1999; Curtin and Dekker 1999; von Bogdandy 1999a, 1999b; de Witte 1998; Koenig and Pechstein 1998). The question has been asked whether the European Community, gathering together the three Communities (EC, ECSC, Euratom), and the EU, gathering together the `three pillar structure' of Maastricht along with the common provisions of the Treaty on European Union, are fundamentally separate entities with separate legal orders. A specific problem is the fact that formal international legal personality is ascribed to each of the three Communities, but not to the European Union itself, although the latter acts in certain ways in the international domain as if it were a recognized legal person, and is given the objective of asserting the identity of the Union on the international scene (Article 2 TEU). On the other hand, the principle of coherence offers an important institutional counterweight to such differentiations between Community and Union (Article 3 TEU).
A number of questions are raised about the transformative process and its outcomes. Does one (EC) belong to the domain of supranationalism, and the other (EU) to the domain of intergovernmentalism? Or is the picture clouded by gray areas, as Meyring suggests, especially if one has regard to the activities of the institutions in the context of justice and home affairs (Meyring 1997)? Is it permissible to focus on the EC as representing the best efforts of the integration dynamic based on the functionalities of the single market and economic and monetary union, treating the EU as the poor political relation, ignoring the cross-cutting influence of structures such as the institutional framework? Or is it correct to revert back to the categorization of EC law as a species of international law (the `new legal order of international law' characterized by the Court of Justice in the foundational case of Van Gend en Loos7), and to assert that now international law and EC law are (re)converging (Denza 1999). To characterize this essentially legal debate as being fundamental to the constitutionalism of the European Union in broader politico-legal terms seems, at first sight, to be falling victim to excessive law-centrism. Is this type of formalized conceptualization of EU constitutionalism not merely replicating the pitfalls of the earlier generation for whom the constitutionalized Treaty was the central image, albeit on this occasion no longer with the Court of Justice in the vanguard given its relatively decentered position in the overall EU framework (Peers 1999)?
On closer inspection, it is perhaps less the narrow question of the putative fusion, interlinkage or separation of the EC and EU legal orders, but rather the related endeavor to characterize the EU in terms self-consciously based on meta-theoretical understandings and social scientific ontologies which is of significance in this context. Curtin and Dekker (1999), for example, draw on the institutional theory of law developed by Neil MacCormick (1997b) in order to argue that the regime established by the Treaty on European Union represents the institutional concept of the `international organization' rather than that of the (mere) `Treaty'. Central amongst their arguments is the way a single institutional framework operates across the entire EU system, with a resultant mixing of principles in relation to decisions and decision-making, judicial practices, constitutional practices and practices in relation to the protection of human rights. Practices are `borrowed' and applied, for example, in relation to the whole system when a strict interpretation seems to indicate that they `belong' only to a part of the system. A good example has been the interpretation of transparency provisions by the Court of Justice and, most notably, by the Court of First Instance. The characterization of this system as `layered', however, recognizes that within the basic shell there are `various autonomous and interlinked entities with their own specific roles and legal systems' (Curtin and Dekker 1999: 132).
A related analysis comes from Armin von Bogdandy who characterizes the EU as a supranational federation (von Bogdandy 1999a, 1999b). Although the analysis builds upon an earlier argument about the unity of the EU legal system (von Bogdandy and Nettesheim 1996), the strength of the argument comes from a juxtaposition of unifying elements (such as the assertion in the Treaty of Amsterdam of a more clearly demarcated external borders and a starker distinction between insiders and outsiders in relation to the Union: Article 11 TEU; Articles 62 and 63 EC) and elements of polycentrism and fragmentation evident in the plurality of institutional methods and configurations. While not hesitating to deploy the emotive term `federalism', von Bogdandy is still careful to stress its capacity to express the diffusion of the holding of power in non-state contexts, and to urge the integration of federalism and supranationalism as (for him) a potent blend - in a normative as well as a descriptive sense - for the Union. Although he deliberately distances his argument from `postmodernist' arguments in relation to law, in practice von Bogdandy relies heavily upon concepts of networks and heterarchy commonly used by such analyses.
The analyses by Curtin and Dekker and von Bogdandy represent, in our view, an application of the notion of the `embedded acquis communautaire', or `the continuously changing institutional terms which result from the constructive process of "integration through law"' (Wiener 1998: 299). In the case of Curtin and Dekker, the emphasis is upon the contribution of certain routinised institutional practices to the constitution of the acquis and the transformed understanding of the EU in legal-political terms. Von Bogdandy, meanwhile, draws out the paradox of flexibility and fragmentation within a framework of unity, which is an important condition of the acquis since it is dependent upon its `constitutive practices' (Wiener 1998: 300-301). It is to concept of flexibility which we now turn, in order to develop a further level of empirical specification of our methodological premises, by examining the emergence and transformation of this concept as `norm' within EU constitution-building and polity formation.
4 For exceptions, see early constructivists such as Kratochwil and Ruggie 1986, Young 1989, or, for that matter, Gramscian contributions to the study of international relations, such as, for example, Keyman (1997), Murphy (1996) Whitworth (1989).
5 A good example would be the wording of Article 6(2) TEU which is intended, inter alia, to set the basic conditions for admission to the EU, as well as to be a constitutional cornerstone for the present membership. Although inserted in the TEU by the Treaty of Amsterdam, it is derived directly from the so-called Copenhagen Principles, articulated when the European Council first formally acknowledged the prospect of enlargement to include the newly democratized countries of East Central and Eastern Europe: Copenhagen European Council, June 21/22 1993, Bull. EC 6-1993, para. I.13.
6 Opinion 1/91 Re the Draft Agreement on a European Economic Area [1991] ECR I-6079.
7 Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1.
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