The rejection of the Constitutional Treaty and the various events following the negative referenda provide an excellent occasion for reconsidering the real meaning of European integration. Paradoxically, the integration process is often praised for its clumsy and ultimately unsuccessful attempts to mimic the nation state, while its truly important contribution to European civilization - the establishment of a supranational constitutional order - is belittled or even ignored. An example of this distorted vision is the debate on the so-called democratic deficit - a condition which could be easily corrected if a majority of Europeans supported a supranational federal state. Since it is obvious that no such majority exists, now or in the foreseeable future, the 'democratic deficit', however defined, is the price we pay for wishing to integrate our national economies while preserving the core of national sovereignty. The current crisis is methodological rather than systemic: it amounts to a rejection of the stealthy approach to European integration - cryptofederalism - which has entailed the triumph of process over outcome. The legitimacy problem of the EU can be solved by limiting, rather than continuously expanding, the competences of the supranational institutions. The institutional system established by the founding fathers was not designed for effective policy-making...
Fonte: Virginia Journal of International Law AssociationPublicador: Virginia Journal of International Law Association
Tipo: Artigo de Revista Científica
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This Essay examines the forces pushing the presently varying forms of domestic constitutional law toward each other, and the sources of and forms of resistance to that globalization (or convergence, or harmonization). After a brief introduction sketching claims for the existence of a "post-war paradigm" of domestic constitutional law and competing claims about national exceptionalism, the Essay sketches the "top down" pressures for convergence - judicial networks and actions by transnational institutions, including transnational courts, international financial institutions, and transnational NGOs. It then turns to "bottom up" pressures, from domestic interests supporting local investments by foreign investment and high-level human capital and from lawyers engaged in transnational practice. A discussion of counterpressures from the supply side follows. These counterpressures include resistance from local interests, including authoritarian or semi-authoritarian political elites, and subtle but perhaps deliberate misunderstandings that can arise when superficially similar legal arrangements take on distinctive local meanings. The Essay discusses whether the mechanisms it identifies lead to a race to the "top," to the "bottom," or to some more variegated location. It concludes with a brief treatment of how the globalization of domestic constitutional law can be accommodated to local notions of separation of powers.